MARIA E. STRATTON
Federal Public Defender
CARLTON F. GUNN
Deputy Federal Public Defender
Suite 1503, United States Courthouse
312 North Spring Street
Los Angeles, California 90012-4758
Telephone (213) 894-2231
Attorneys for Defendant
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
xxxxxxxxxxxxxxxxx,
Defendant.
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NO. CR xxxxxxxxxxxx
EX PARTE APPLICATION FOR PRETRIAL SUBPOENAS DUCES TECUM; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION
Defendant xxxxxxxxxx, through his counsel of record, Deputy Federal Public Defender Carlton F. Gunn, hereby applies to this Honorable Court for two pretrial subpoenas duces tecum. The first directs a private individual named Steve Kang to provide a voice exemplar in which he speaks in Korean the phrases "tired of running from the law", "bad cargo", and "have to be careful about the police". The second directs Deputy Steve xxxxxxxx of the Los Angeles County Sheriff's Department to provide a voice exemplar in which he (1) reads in Korean the FBI report of interview attached to this application as Exhibit A and (2) asks in Korean the question, "Did you know you were dealing with stolen property?"
This application is made pursuant to Rule 17(c) of the Federal Rules of Criminal
Procedure and is based on the attached memorandum of points and authorities and
declaration, all files and records in this case, and such further information as may be
submitted to the court regarding this application.
Respectfully submitted,
MARIA E. STRATTON
Federal Public Defender
DATED: July __, 2000 By______________________________
CARLTON F. GUNN
Deputy Federal Public Defender
MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
xxxxxxxxxxx is charged with five counts of possession of goods stolen from a foreign shipment, in violation of 18 U.S.C. 659. Trial is presently scheduled for December 12, 1995.
Mr. xxx native language is not English but Korean. He was interviewed by an FBI agent with the assistance of Korean-speaking individuals on two occasions. See Exhibits A, B. On the first occasion, a businessman named Steve Kang, who is also one of the victims from whom property was stolen, served as translator. On the second occasion, a Los Angeles County Sheriff's Deputy named Steve xxxxxxxx served as translator. See Exhibit B. Mr. xxxxxxxx allegedly admitted in both interviews that he knew he was dealing in stolen property. See Exhibit A, at 1; Exhibit B.
The report of the first interview does not contain many verbatim quotations of what Mr. xxxxxxxx allegedly said. It does include a few, however, including "tired of running from the law", "bad cargo", and "have to be careful about the police". See Exhibit A, at 1.
The second report of interview reflects much more about exact words which were used. In particular, it indicates that Deputy xxxxxxxx translated the written report of interview from the first interview; indeed, it appears that this was the main focus of the second interview. See Exhibit B. The report of the second interview also reflects at least one specific question which Deputy xxxxxxxx apparently asked in Korean: "Did you know you were dealing with stolen property?" Id.
One of the factual issues which will arise at the trial will be whether Mr. Kang's translation and Deputy xxxxxxxx's translations were accurate and unambiguous. If they were not, the jury could conclude that Mr. xxxxxxxx did not admit knowing the property was stolen. The defense intends to retain a Korean language expert to evaluate the accuracy, clarity, and fluency of Mr. Kang's and Deputy xxxxxxxx's Korean.
In order for the defense expert to form an opinion, he needs to hear Mr. Kang and Deputy xxxxxxxx speaking in Korean. It will not be sufficient if he merely hears them speak briefly in court without having an opportunity to listen carefully. The court should therefore order issuance of the pretrial subpoenas duces tecum which are requested in this application.
II.
ARGUMENT
A. A VOICE EXEMPLAR OF AN INTERPRETER'S TRANSLATION OF WORDS USED DURING THE
INTERROGATION OF A DEFENDANT IS SUBJECT TO SUBPOENA UNDER RULE 17(c) OF THE FEDERAL RULES
OF CRIMINAL PROCEDURE.
Rule 17(c) of the Federal Rules of Criminal Procedure provides that a subpoena may not only command a witness to appear and give testimony, but may also "command the person to whom it is directed to produce the books, papers, documents, or other objects designated therein." While the catch-all phrase "other objects" is not defined in the rule, the Supreme Court has described the rule as applying to "any document or other materials, admissible as evidence." Bowman Dairy Co. v. United States, 341 U.S. 214, 221 (1951). In construing a comparable statute authorizing Internal Revenue Service summonses for tax investigations, the Supreme Court has explained:
The scope of the "testimonial" or evidentiary duty imposed by common law or statute has traditionally been interpreted as an expansive duty limited principally by relevance and privilege. . . .
One application of this broad duty to provide relevant evidence has been the
recognition, since early times, of an obligation to provide certain forms of
non-testimonial physical evidence. In Holt v.
United States, 218 U.S. 245, 252-253 (1910) (Holmes, J.), the Court found that the
common-law evidentiary duty permitted the compulsion of various forms of physical
evidence. In Schmerber v. California, 384
U.S. 757, 764 (1966), this Court observed that traditionally witnesses could be compelled,
in both state and federal courts, to submit to "fingerprinting, photographing, or
measurements, t
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