CERTIFICATE AS TO PARTIES,

RULINGS, AND RELATED CASES

Pursuant to Circuit Rule 28(a)(1), appellant, Cesar xxxxxxx, hereby states as follows:

A. Parties and Amici: The parties below were the petitioner-appellant, Cesar xxxxxxx, and the respondent-appellee, the United States of America. There are no amici.

B. Rulings Under Review:

C. Related Cases: This case has not been before this Court or any other court previously.

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

STATUTES AND RULES viii

JURISDICTION viii

ISSUES PRESENTED viii

STATEMENT OF THE CASE

A. Procedural History

B. The Hearing Below

1. The Defense Case

a) The Testimony of Heather Shaner

b) The Testimony of Cesar xxxxxxx

c) The Testimony of Charles Stansfield

d) The Testimony Of Witnesses Regarding Mr. xxxxxxx's Alcoholism

2. The Government's Case

a) The Testimony of Nathan Silver

b) The Testimony of Dale Sutherland

C. The District Court's Ruling

ARGUMENT

Summary of Argument

Standard of Review

I. Mr. xxxxxxx Was Denied Effective Assistance of Counsel

A. Mr. xxxxxxx Demonstrated Prejudice Below

1. Mr. xxxxxxx Was Prejudiced Because There Was A Reasonable Probability That He Would Have Proceeded To Trial But For His Counsel's Ineffectiveness

2. Mr. xxxxxxx Had A Colorable Claim Of Innocence

B. It Was Objectively Unreasonable For Silver To Have Failed To Use An Interpreter During His Meetings With Mr. xxxxxxx

CONCLUSION

CERTIFICATION OF BRIEF LENGTH

CERTIFICATE OF SERVICE

ADDENDUM

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No.

UNITED STATES OF AMERICA, Respondent-Appellee

v.

CESAR xxxxxxx, Petitioner-Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF OF PETITIONER-APPELLANT

CESAR xxxxxxx

STATUTES AND RULES

Pursuant to Rule 28(f), Federal Rules of Appellate Procedure and D.C. Circuit Rule 28(a)(5), the pertinent statutes are set forth in the Addendum to this brief.

JURISDICTION

The District Court had jurisdiction under 28 U.S.C. §2255. A timely notice of appeal having been filed within the 60-day period permitted under Federal Rule of Appellate Procedure 4(a), this Court has jurisdiction under 28 U.S.C. §2253.

ISSUES PRESENTED

I. Whether a criminal defendant has a constitutional right to an interpreter before trial if the defendant and the defense counsel can not communicate legal issues.

II. Whether Mr. xxxxxxx's trial counsel rendered ineffective assistance by failing to obtain assistance of an interpreter in representing Mr. xxxxxxx.

STATEMENT OF THE CASE

A. Procedural History

On December 4, 1990, Mr. xxxxxxx and his co-defendants were charged by indictment with conspiracy to distribute more than five grams of cocaine base, in violation of 21 U.S.C. §846 (Count I), and eight counts of distribution of more than five grams of cocaine base, in violation of 21 U.S.C. §§841(a)(1), and (b)(1)(B)(iii), and aiding and abetting, in violation of 18 U.S.C. §2 (on June 2, 6, 8, 12, and 7, and July 26 and September 13 and 15, 1990) (Counts II through IX).

On February 21, 1991, after jury selection and prior to opening statements, Mr. xxxxxxx pled guilty to counts seven and eight of the superseding indictment in front of the Honorable Stanley S. Harris.

On April 23, 1991, Mr. xxxxxxx was sentenced to 135 months on count seven and 135 months on count eight, to be served concurrently, to be followed by four years of supervised release on count seven and four years on count eight, each to run concurrent with the other. Among the terms of the supervised release were that Mr. xxxxxxx participate in an alcohol aftercare program which included detoxification if necessary. Mr. xxxxxxx did not take a direct appeal of his sentence.

Mr. xxxxxxx filed a pro se 28 U.S.C. §2255 motion on March 20, 1992. On August 20, 1992, the district court dismissed all but two of Mr. xxxxxxx's claims without a hearing. The two claims remaining were 1) the district court's failure to hold a hearing and make a record of petitioner's request for substitution of counsel; and 2) an ineffective of assistance claim.

The district court held hearings on the two remaining claims of Mr. xxxxxxx's motion on September 20, 22 and 30, 1993. Both the government and Mr. xxxxxxx filed proposed findings of fact and conclusions of law. In a written order the district court denied Mr. xxxxxxx's motion on May 20, 1994. Mr. xxxxxxx filed a timely notice of appeal from the district court's denial of his motion pursuant to 28 U.S.C.