Bad Interpreter? What’s the Four-Part Nazemian Test?

In United States v. Nazemian (9th Cir. 1991) 948 F. 2d 522, 527, the Ninth Circuit considered the issue of how to treat opposing-party statements made through an interpreter when the testifying witness was unable to understand the original language of the declarant and can testify only to the words of the interpreter.

Nazemian identified four factors to aid in determining whether an interpreter’s statements should be attributed to the speaker: (1) which party supplied the interpreter; (2) whether the interpreter had any motive to mislead or distort; (3) the interpreter’s qualifications and language skill; and (4) whether actions taken subsequent to the conversation were consistent with the statements as translated.

For an example of how this test was evaluated, the recently published (May 24, 2024) ruling in United States v. Ulises Romeo Lucashernandez is helpful.  

In November 2019, Border Patrol Agent Brian Mauler was patrolling a remote, rugged, and sparsely populated area approximately three and a half miles north of the U.S.-Mexico border and sixteen miles east of the nearest port of entry when he discovered shoe prints crossing a dirt road.  

He followed the footprints until he encountered Mr. Lucashernandez and two other individuals at the bottom of a twenty-foot deep sand wash. 

After identifying himself as a Border Patrol Agent he conducted a brief field inspection by asking each individual three questions about their citizenship and immigration status.  According to Agent Mauler, he and the individuals communicated with each other entirely in Spanish.  Based on the questions he asked and the responses he received, Agent Mauler placed all three individuals under arrest.

Mr. Lucashernandez was charged with misdemeanor attempted entry by an alien under 8 U.S.C. § 1325(a)(1).  

Before trial, Mr. Lucashernandez moved to exclude Agent Mauler from testifying as to where Mr. Lucashernandez said he was from (Mexico) based on Agent Mauler’s Spanish-English translation of his questions and Mr. Lucashernandez’s answers, arguing that Agent Mauler was not qualified as an expert to translate the statements.

The motion was denied and then at trial, Agent Mauler testified that he completed a two-month Spanish language program during his five months at the Border Patrol Academy.  He conceded that he was not fluent in Spanish “to the point where [he] could have a conversation,” but he stated he was proficient enough to perform his duties as a Border Patrol Agent, explaining he used Spanish every day at work.

He also testified that he and Mr. Lucashernandez did not appear to have any difficulty understanding or communicating with each other on the day of the arrest.  He said he asked Mr. Lucashernandez three questions.  He asked him where he was from and he said Mexico.  Second, he asked him for immigration documents to be in the United States and Mr. Lucashernandez said he had none.  He then asked him if he illegally entered the United States and he stated that he had.

Another agent testified that Mr. Lucashernandez had been deported from the United States twelve times.

At the conclusion of the trial, the judge found Mr. Lucashernandez guilty of attempted illegal entry and he was sentenced to time served.

After trial, Mr. Lucashernandez appealed the judge’s ruling on his motion to exclude Agent Mauler’s testimony.  The appeal was filed in the United States Court of Appeal for the Ninth Circuit, which ruled that Nazemian really did not apply because Agent Mauler’s testimony as to what Mr. Lucashernandez stated was not hearsay since they were party admissions, an exception to the hearsay rule.  Moreover, Agent Mauler laid a sufficient foundation that he understood Mr. Lucashernandez’s statements.  Lastly, the Ninth Circuit ruled that any error in admitting Mr. Lucashernandez’s statements was harmless given the totality of the circumstances (finding Mr. Lucashernandez hiding in a remote area north of the border with no immigration documents allowing him to be in the United States and his history of being deported twelve times previously).

The Ninth Circuit pointed specifically to the record of Mr. Lucashernandez’s being deported twelve times previously to establish that Mr. Lucashernandez was from Mexico, so Border Patrol Agent Mauler’s testimony that Mr. Lucashernandez told him this was not needed for the conviction, as Mr. Lucashernandez’s deportation history was sufficient evidence for this.

We present this summary for the reader because we have had clients claim, in the context of a motion to vacate a conviction, that during a plea or during a prior trial, an interpreter was difficult to understand or did not properly translate our client’s testimony.