TABLE OF CONTENTS







TABLE OF AUTHORITIES ii



ARGUMENT 1



Summary of Argument 1



Mr. xxxxx Was Denied Effective Assistance of Counsel 2

1. Counsel's Failure To Provide A Language Interpreter To Enable A Criminal Defendant To Communicate With Defense Counsel Can Render Counsel's Representation Ineffective 2

2. The District Court's Findings That Mr. xxxxx Had Been Able To Communicate With His Attorney Were Clearly Erroneous 4

3. Mr. xxxxx Was Prejudiced Because He Had A Colorable Claim of Innocence And There Was A Reasonable Probability That He Would Have Proceeded To Trial But For His Counsel's Ineffective Representation 6

CONCLUSION 7

CERTIFICATION OF BRIEF LENGTH 8

CERTIFICATE OF SERVICE 8



TABLE OF AUTHORITIES



CASES



Baltierra v. State,

586 S.W.2d 553 (Tex. Crim. App. 1979) 2, 4



Cervantes v. Cox,

350 F.2d 855 (9th Cir. 1965) 3



Hernandez v. Wainwright,

634 F. Supp. 241 (S.D. Fla. 1986),

aff'd, 813 F.2d 409 (11th Cir. 1987) 2, 3



United States v. Lyon,

959 F.2d 701 (8th Cir. 1992) 7



United States v. Baker,

499 F.2d 845 (7th Cir.), cert. denied,

419 U.S. 1071 (1974) 7



United States v. Foote,

898 F.2d 659 (8th Cir.), cert. denied,

498 U.S. 938 (1990) 7



United States v. Hardy,

730 F. Supp. 1141 (D.D.C. 1990) 6



United States v. Ladd,

885 F.2d 954 (1st Cir. 1989) 7



United States v. Lim,

794 F.2d 469 (9th Cir.), cert. denied,

479 U.S. 937 (1986) 3



United States v. Manganellis,

864 F.2d 528 (7th Cir. 1988) 6



United States v. Mosquera,

816 F. Supp. 168 (E.D.N.Y. 1993) 2, 3



United States v. Smith,

552 F.2d 257 (8th Cir. 1977) 7



United States v. Tapia,

631 F.2d 1207 (5th Cir. 1980) 3, 4



Valladares v. United States,

841 F.2d 1089 (11th Cir. 1988), appeal

after remand, 871 F.2d 1564 (11th Cir. 1989) 3



Webster v. United States,

623 A.2d 1198 (D.C. 1993) 6



STATUTES



21 U.S.C. 841 6



MISCELLANEOUS



"Interpreters For The Defense: Due Process For The Non-English-Speaking Defendant," 63 Cal. L. Rev. 801 (1975) 4



UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. xxxxxxxxxx



UNITED STATES OF AMERICA, Respondent-Appellee



v.



xxxxxxxxxx, Petitioner-Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA





REPLY BRIEF OF PETITIONER-APPELLANT

xxxxxxxxxxxxxxx

Summary of Argument

The case law recognizes that an inability to communicate with one's counsel due to a language barrier can adversely affect the right to effective assistance of counsel. In Mr. xxxxx case, by improperly focusing on counsel's feelings that there were no communication problems between Mr. xxxxx and himself, rather than on Mr. xxxxx perceptions, the district court clearly erred. Moreover, the district court erred in ruling that the subjective impressions of a non-expert, i.e. Mr. xxxxx counsel, carried more weight than objective expert testimony regarding the results of testing on Mr. xxxxx abilities in English as a second language. Finally, because Mr. xxxxx had a colorable claim of innocence based upon an intoxication defense, and because the record of all the post-conviction proceedings in this case makes clear Mr. xxxxx intention to proceed to trial but for his inability to communicate with his trial counsel, Mr. xxxxx was prejudiced.

Mr. xxxxx Was Denied Effective Assistance of Counsel

1. Counsel's Failure To Provide A Language Interpreter To Enable A Criminal Defendant To Communicate With Defense Counsel Can Render Counsel's Representation Ineffective.

The government contends that "there is no statutory or constitutional authority requiring the provision of interpreters during pre-trial, out-of-court proceedings." Gov't Br. at 23. At least two courts, however, have recognized that without language interpretation for the defendant and his or her counsel, the right to effective assistance of counsel may be compromised. Baltierra v. State, 586 S.W.2d 553, 559 n. 11 (Tex. Crim. App. 1979) (en banc); United States v. Mosquera, 816 F.Supp. 168, 173 (E.D.N.Y. 1993).

Moreover, courts have implicitly recognized the Sixth Amendment right to effective assistance of counsel encompasses the ability to meaningfully communicate with counsel. For example, in Hernandez v. Wainwright, 634 F.Supp. 241, 250 (S.D. Fla. 1986), aff'd, 813 F.2d 409 (11th Cir. 1987), the court disapproved of the practice of not providing language interpreters to enable pre-trial communication between counsel and defendant, id. ("[w]e do not approve of the practice of conducting such pre-trial interviews as prudent advocacy"), noted that a language barrier between counsel and client, unaided by interpretation in pre-trial meetings, is "one circumstance to consider in assessing the existence of ineffective assistance of counsel." Id. at 249. In that case, however, because the defendant had succeeding in communicating his defense and his desire to testify to his attorney with the aid of an interpreter at one pre-trial meeting and during the court proceedings, the court found the representation adequate. Id. at 250. See Valladares v. United States, 841 F.2d 1089 (11th Cir. 1988) (remanding case for district court's consideration whether disabling language barrier between accused and counsel rendered assistance of counsel ineffective), appeal after remand, 871 F.2d 1564 (11th Cir. 1989); United States v. Lim, 794 F.2d 469, 471 (9th Cir.) (acknowledging that one dimension of legal representation necessarily includes the accused's ability to communicate with his or her attorney), cert. denied, 479 U.S. 937 (1986); United States v. Tapia, 631 F.2d 1207, 1209 (5th Cir. 1980); Cervantes v. Cox, 350 F.2d 855 (9th Cir. 1965) ("[n]o doubt that under extreme circumstances the inability of an accused to communicate with his counsel may deny him the right to effective representation and may actually result in the entry of a guilty plea without understanding"); United States v. Mosquera, 816 F.Supp. at 173 (constitutional right to effective assistance of counsel meaningless "unless the client can provide his or her lawyer with intelligent and informed input." 816 F.Supp. at 173.

The government places great emphasis on the presence of interpreters at court proceedings to suggest that their presence remedied the out-of-court lack of interpretation between Silver and Mr. xxxxx. Gov't Br. at 4 n. 2, 8, 10-11, 15, 16, 19, 25, 26, 28, 29. There is a fundamental difference, however, between interpretation of court proceedings and interpretation of attorney-client communications; the former safeguards the right of confrontation, while the latter ensures effective assistance of counsel. Baltierra v. State, 586 S.W.2d at 559 n. 11. See generally "Interpreters For The Defense: Due Process For The Non-English-Speaking Defendant," 63 Cal.L.Rev. 801 (1975).

2. The District Court's Findings That Mr. xxxxx Had Been Able To Communicate With His Attorney Were Clearly Erroneous.

The government's contention that the district court properly found that Mr. xxxxx could communicate with Silver, Gov't Br. at 18-19, flies in the face of the record below. Separate and apart from the issue of Silver's bias based upon having been the subject of a post-conviction attack based upon ineffective assistance of counsel, the district court's ruling was erroneous because it was based upon Silver's feeling that there were no communication problems between himself and Mr. xxxxx, rather than Mr. xxxxx view. (1) Cf. United States v. Tapia, 631 F.2d at 1209 (waiver of court appointed interpreter under Court Interpreters Act is decision for the client and not for his counsel or the court). Thus, the district court erred in ruling that Dr. Stansfield's expert testimony about the objective results of quantifiable testing were trumped by Silver's subjective feeling about his (Silver's) satisfaction with Mr. xxxxx ability to communicate in and understand English. Indeed, the district court obliquely conceded that, in fact, there was a language barrier impeding communication between Mr. xxxxx and his counsel by stating that "any difficulty Mr. xxxxx had in communicating with his attorney had no bearing on his decision to plead guilty." A. 379 (emphasis supplied). (2)

The district court's reliance upon Mr. xxxxx ability to discuss the sentencing guidelines at the time of sentencing, referred to by the government, see Gov't Br. at 18, was also not relevant to his ability to communicate in English. The record is devoid of any evidence that Mr. xxxxx learned about the sentencing guidelines in English rather than in Spanish, and the record is clear that any communications with Mr. xxxxx in open court occurred with the assistance of an interpreter. Thus, his ability to comprehend the concepts underpinning the sentencing guidelines said nothing about his ability to communicate in the English language. In light of the fact that the district court recognized that there was a "difficulty . . . in communicat[ion]" between Silver and Mr. xxxxx, A. 379, it was error to have denied Mr. xxxxx petition for post-conviction relief. (3)

3. Mr. xxxxx Was Prejudiced Because He Had A Colorable Claim of Innocence And There Was A Reasonable Probability That He Would Have Proceeded To Trial But For His Counsel's Ineffective Representation.

The government cites United States v. Manganellis, 864 F.2d 528, 539 (7th Cir. 1988), Webster v. United States, 623 A.2d 1198, 1206 (D.C. 1993), and United States v. Hardy, 730 F.Supp. 1141, 1143 (D.D.C. 1990) for the proposition that distribution of a controlled substance in violation of 21 U.S.C. 841 is a general intent offense. The government completely ignores and fails to discuss the cases cited by Mr. xxxxx suggesting that intoxication could have been a viable defense to the two counts of distribution to which he pleaded guilty. See Opening Brief at pp. 33-34, citing, inter alia, United States v. Lyon, 959 F.2d 701, 707 n. 5 (8th Cir. 1992); United States v. Foote, 898 F.2d 659, 665 (8th Cir.) (implicitly recognizing that cocaine intoxication can "negate the necessary element of specific intent in the distribution offenses charged" but finding no error to exclude expert testimony on subject where such testimony would have been cumulative), cert. denied, 498 U.S. 938 (1990); United States v. Ladd, 885 F.2d 954, 960 (1st Cir. 1989) (instruction that "drug-induced influences at the time of the offense [of distribution] might negate specific intent" was appropriate); United States v. Smith, 552 F.2d 257, 260 & n.3 (8th Cir. 1977) (where defendant charged with distribution in violation of 21 U.S.C. 841(a)(1) district court "accurately instructed the jury" to consider the defense of intoxication "in determining whether or not the defendant acted or failed to act with specific intent"); United States v. Baker, 499 F.2d 845, 849-50 (7th Cir.), cert. denied, 419 U.S. 1071 (1974).



Conclusion

The trial court's denial of Mr. xxxxx petition for a writ of habeas corpus should be reversed and his conviction should be vacated.




Respectfully submitted,



A. J. KRAMER

FEDERAL PUBLIC DEFENDER











Santha Sonenberg

Assistant Federal Public Defender

On Behalf of Cesar xxxxx

625 Indiana Avenue, N.W.

Washington, D.C. 20004

(202) 208-7500









CERTIFICATION OF BRIEF LENGTH

 

Pursuant to D.C. Circuit Rule 28(d)(1), undersigned counsel hereby certifies that this brief includes no more than 6250 words.


CERTIFICATE OF SERVICE

This is to certify that on this 14th day of April, 1995, two copies of the foregoing Reply Brief for Appellant were personally served upon the Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001 by first-class postage pre-paid mail.

Santha Sonenberg

1. Compare A. 203 (Silver did not perceive a problem communicating), A. 214 (Silver said there was never a real difficulty speaking with Mr. xxxxx), A. 215 (Silver's testimony that he was able to confer to his satisfaction with Mr. xxxxx in English), with A. 238 (Silver did not feel the need to call in an interpreter, but Mr. xxxxx told him that he (Mr. xxxxx) would be more comfortable speaking with Silver if he could speak in his "native tongue" and have an interpreter present), A. 240 (Mr. xxxxx wanted an interpreter involved).

2. The existence of a communication problem between Mr. xxxxx and Silver is also substantiated by Silver's concession that during the one legal visit when he took an interpreter with him, he was able to go into greater detail with Mr. xxxxx. A. 231.

3. The government overstates the record. First, the government suggests the possibility that more than one of Silver's out-of-court meetings with Mr. xxxxx was interpreted, Gov't Br. at 11, 19, 26, 28, but that suggestion is not supported by the record. See A. 199-201 (indicating that sole out-of-court meeting with interpreter occurred on November 15, 1990); A. 229 (of all his visits with Mr. xxxxx, Silver took an interpreter only on November 15, 1990).

Second, the government claimed that Ms. Shaner only "sometimes" asked her Spanish-speaking clients to repeat back to her what she had said to ensure that they understood her. Gov't Br. at 7. In fact, Ms. Shaner did not qualify that practice as occurring only "sometimes." See A. 74-75. She testified that when she did not bring an interpreter along, it was her practice to have the client repeat back what she had said so she could be sure she had been understood. Id.

Finally, the government claimed that "Ms. Shaner admitted that she never communicated [Mr. xxxxx] desire that she represent him or that [he] was having difficulties communicating with his attorney to either the judge in the case or to Mr. Silver." Gov't Br. at 7. While it is true that Ms. Shaner did not indicate that she explicitly stated Mr. xxxxx dissatisfaction to either the district court or to Silver, she did testify that she believed she had "made a phone call to the chambers of Judge Harris" and thought that she had "said that [she] would be available if they received a letter from Mr. xxxxx." A. 78.