good morning ladies and gentlemen our first case for this morning is united states against later this christians from mr lee a buzz inability to speak english language being primarily a spanish speaker or almost exclusively a spanish speaker the first is the traffic stop that trevor weiss conducted when the three individuals were consent to search the car in addition to prolonging initial traffic stop from the point of issuing a ticket twice and then started a new traffic stop or an additional stop that wasn't justified by english word yes but said c and that was the extent of the conversation unfortunately trivializes were lying on a cheat sheet that he had made that in accurately translated many spanish phrases but as is relevant in this case can i search your common word for card in spanish i'm not a spanish speaker myself but certainly coach is is a well known word in the government points out that had he typed it into his i phone it would have come out that it was course coaching and still would have been well but i don't know that but the broader point that the just record makes is and this certainly i mean common sense tells you this happens all the time when people are communicating across languages you don't always pick quite the right word but the native speaker understands what you're getting at and there's the car sitting there twenty to twenty five feet away and the court finds mr laver didn't think he was being asked can i find a car there's a car sitting there you know a council table instead he understood that it meant can i look in your car and i guess if that didn't work any had been added to the sentence would have both come into court it would have been fine it's possible i have very little knowledge of spanners over the experts testified that that was not would have not been the correct way and i think if we look at the totality of the circumstances license procedure is also in spanish i'm sure that's true so i think that the broader point is if we really are going to look at the totality of the circumstances the district court also  earth here some evidence to the effect that mr leyva is concerned before he even gets out of the car you know he's talking to the two women in the car the thought the prospect of a search is on his mind or there's evidence to suggest that in the district court credits that evidence and the district court makes what i think is probably a factual finding that he understood from this admittedly clumsy way of phrasing the thing using the word scar instead of a better word that he gets it that he knows he's being he's being asked to look in the car i think that that actually points to the other direction though the two occupants testified that he directed them to put some things in the glove compartment and if he was looking at thinking about the fact that it might be searched i think he would have said you know if he had understood the question because he was looking to hide the evidence and the was in the car so if you had understood the question i believe you would have said no you cannot search you know that would be a very sensible thing except you as a defense attorney have probably seen thousands of cases where people say yes you can search and they're the drugs are in the compartment or they're in the trunk or they're in the glove compartment that they are where they are and it's probably because in the real world our notions of your obligation to respond to a police officer's request are much stricter than in the slightly fictional idea that you're not being cool worst that seems to prevail right i think in most of those situations the officer and the person consenting speak the same language i think that's the key in this case if mr li if i had been an english speaker and why since how can i search your car even though i believe there was another that the stop it ended and another stop had begun i think consent would be a valid point in that case but if we look at the whole circumstances he was trapped in a car away from the people who had been interpreted to him twice noted that he had not responded when mr lee ever had not responded when i'm not entirely sure there were a weis was in the car and then chapman was standing on the passenger side of the car and i believe there was at least one other officer on the scene at that time and i believe it was the other officer who spoke spanish  and and none of those people of course were asked to translate this very important question that i could have seen a question starting out more logically is where are you going is there anything illegal in your car which we no he did not isn't that kind of and i know that's a common tactical choice but it's pretty tough to prove that the district court was wrong about his mother his understanding of the situation when he didn't even take the stand to explain consequences right in front in terms of the strength of the motion to suppress and it might have been wraps it might have been an easier case for the district court to say oh yes you know my own interpretation of him on the stand is that he knew what office a tr meant when he asked even though he asked and incorrectly well there are no i mean i would never thought that mr laver would have been able to say i misunderstood that's not you know i did not consent but we don't he we don't have  understand the burdens on the government and so right but but it's hard to beat something with nothing so i understand that and there and we believe that to tell you the circumstances certainly point to that interpretation of what happened between the two of them in the think that in this case good faith is if the court agrees with us on every step up to this the good faith exception is doesn't apply to a case like this what this was clearly a systemic continuing use a bad from the cop whether it was bad hunch and i don't think so i think that he had probably had situations where he needed this and made it using a translate out that clearly wasn't functioning properly well that's the problem with translate apps but it's about the best you can do in a world where people speak quite a few different languages i would say specially spanish is probably the most common that he's going to find in that corridor in illinois probably and he had at his disposal officers who spoke spanish and court interpreters i'm sure both state and federal court interpreters who could have given him better options if he had chosen to do that i'll move on us testifying the transcript reads fairly clearly the interpreter and he seemed to be working the interpreter saying logical things then we take a lunch break and a different interpreter comes and it's nearly  readable in the transcript there certainly are parts that are very garbled but as i understand it the last go interprets on a couple of days and you're focusing only on the afternoon of the fifth day well certainly for the defendant's testimony have looked this morning to it and to see when she interpreted again and she interpreted a pretrial hearing there's no other mention that she was the interpreter although i think she probably was it just happened doesn't happen to be in the record anywhere i was not proud counsel so i can't tell you from that experience but certainly from our point of view when it becomes an issue is when she's trying to interpret for our client who's trying to exercise his right to testify and tell the jury his side of the story just he ever indicate you know based on the ability to review transcripts or the like with counsel something he was trying to convey they didn't get across i understand your point that he wouldn't necessarily know at the moment but that's not the only time available right actually by now because it seems to me that he was able to get across his fundamental defense which was that this whole thing was going to go and martin's idea and he was just to do was driving along so this bit about ever meeting his wife and things like that strikes me as a little peripheral there were some peripheral issues that certainly were mistranslated as well we get the difference between what he's wearing pants cell phone pull over and that sort of thing but we get into the main issue is who was in control when when of alaska was testifying and i'll answer the first part of your question defense counsel said that they had asked mr lay there to kind of give them a signal when he was having trouble understanding the interpreter and he give that single signal several times and objections to that and didn't the district court judge respond you know exactly as defense counsel ask you know slowing down try yes and no answers you know give the interpreter time to interpret manageable chunks of testimony i think the district court judge was trying really hard to understand it is i think the judge did to a certain point and then it became pretty obvious that those instructions weren't helping and there is no other point that the translation is is part of the transcribed record or even the audio record because this is the only person who testified in spanish so if alas interpreted and at other times it wouldn't be part of the record as we know it because it would not be transcribed by the by the court reporter at that point it but it becomes it's a it's a sea change as soon as the lunch break ands and alaska comes on this christians and i get inside i'm not i'm not sure i share your view of this is i've read through the transcript and i saw what looked to me like you know the fairly normal kinds of of rough spots in interpretation of testimony and questions and intervention by counsel and by the court at times to to stop the private dialogue that might have been going on or to to try to get the government counsel to ask say one question at a time compound questions cause problems and write your stances but i didn't see any situation where defense counsel were raising red flags saying this is so bad judge we've got to stop you with a mistrial or we've got to just recess till we can get a different interpreter in here and cetera right and so i it's not clear to me that this was just all that serious a problem the unmanageable problem well i think that defense counsel certainly was raising red flags and several times the judge there was more than one objection about the manner in which it was being interpreted and that the difference for me is that when you start talking about different pronouns and the lascaux will say you know i said that under my i meant he said that no she said that and for a jury listening i think it would be nearly impossible to determine made a motion for mistrial i think so and that didn't happen but i think the district court judge also has a duty at some point to say this is not working that this court this interpret clearly is not able to seeing a lot of mr walters this week so thank you if i could begin by addressing the second issue first since we just addressed the alleged inadequacy of the interpretive interpretation services during trial but the question of the very good point i don't know if you've ever been in a situation where somebody was interpreter for you but i once was in china where they were interpret ing to chinese judges what i was saying and i honestly wouldn't have had the faintest idea if they were reading a novel to my audience or what if it weren't you're putting what i was saying the whole premise being that you don't speak the other language so how would mr leyva have known whether the lasco was doing an adequate job of his ability to testify i think that's what the court interpreters x speaks to of as far as a recording and your honor brought this up that it's not just during trial in which this record could have been made as we argued in our brief the record could have been made post trial and i respectfully disagree with my colleague who is my friend but i do believe that that recording is discernable particularly to a spanish speaking individual i will give you some instances i don't speak spanish have not for a long time but there are a number of times it struck me as i didn't read in reading the transcript where he would say that's normal but you know what when i listened to the recording i heard him use the term time in spanish too and we don't use that word you can't just use the direct cognate no i i'm just giving you an example though of where that might have been questionable but yet when you listen that that is what he is saying but to address the court's question i think in any case in which you have someone who does not speak english and yet they're the first seedings are required to be in english you're going to have an interpreter and no one can know at that point in time person other than the interpreter of whether it's accurate so that's why we do have the court interpreters act or is this court stated no and kuko versus holder the immigration case that there's that there's th opportunity post child to sit down with a translator or an interpreter to come up with the affidavits to point out to the district court is the finder of fact where the inaccuracy happened or where they occurred have to get daily copy it sounds think for too well at least for one reason first of all a lot of times when it looked like it was confusing if you continue to read the lines following that that it was often clarified of gideon example when he talks about i sat on a table i looked at a book i pointed at my food that's how i translated in english no one would have an idea looking at that phrase or that terminology of what he was talking about and yet when read in the context of that page of the transcript he's talking about ordering food in an english speaking restaurant and by the way that interpretation that i'm speaking of came from the morning's interpreter not from mr lascaux other syntax and grammar issues throughout the transcript not just with miss go but ultimately what we're looking at is did he get his story across and i think any fair reading of the transcript or listening to the recording makes that case that he was an innocent bystander who was duped by these b a go and martin that he it was basically the three monkey story of hear no evil see no evil speak no evil i went on a five six day trip went into a number of stores and i had no idea what was going on so even with of the lack of a request for a mistrial counsel never actually asks for a substitute interpreter that's correct your honor that that yeah and also the other thing i'd like to point out and you with with respect there was only one time that mr leyva raised his hand as if he didn't understand something as when mr harris the prosecutor asked a three question compound question it wasn't multiple times that he raised his hand as if you didn't understand  also think that what we have are two permissible views allowed by the evidence and the choice between them by the district judge not being clearly erroneous and that is given the context with the car sitting twenty to twenty five feet directly in front of the defend at and of weiss and asking that question which is literally translated to may i search for your car may i locate your car but it was understandable what weis asking of the defendant then i don't testimony about what cuban eddie i'm or mexican indian or anybody else's idiom what it then there was some testimony about a mexican idiom potentially i think mrs spina and spanish and some parts of mexico may mean may i search in your car which that proposition was not used here but we think that that question was not so far afield a and given the immediate non hesitant non quizzical response of the defendant i know the counsel is talking somewhat tongue in cheek but i'd listen to the tone of her voice when she said my response would have been sure kind of like either question or sarcastically but that's that's not how mr lee even responded there was no quizzical response no no questioning it was no hesitant an affirmative the testimony was he said yes nodded said see the officer then came back with a question or reply i see and leave it then again said c and these are the little strange though that he's over there in squad car usually with these traffic stops that he didn't want to drive or to get out of the car because that exposes them i've i've seen it both ways i think you're right your honor predominantly they aren't in the car but there's nothing the constitution prohibits asking the driver to come back to the squad car except that the consequence here of doing that is to separate him from anybody who could help him with the language and well language problem i  certainly agree that that could be a nefarious interpretation of what occurred but i don't think the officer was required to take him at his word as he's driving down the highway with probably wisconsin plates on his car and heading to wherever that he doesn't speak english i think he could acquire in one way of doing that is to is to possibly separate him and he realizes no he does not speak english and i don't think that that is necessarily an inappropriate thing and certainly the not clearly erroneous and on top of that we do stand by our good faith argument and the fact that the defense kind of doubles down on that argument they were the ones to raise that he should have used as i phone or could have used  i'd like to make a crack couple corrections in the record at least one that i think is very important i think counsel stated during her argument that there was a spanish speaker present at the stop there were three officers initially in order it was trooper weiss made the stop sometime thereafter trooper chapman shows up chapman testified he doesn't speak of record sixty five the suppression hearing transcript what he was involved in was the interview of the defendant which took place at either district nine or just district seven headquarters so the record will show that he was not at the scene of the traffic stop no ultimately there were there were five that showed up you had the the three troopers during the stop and then during that when the consent to search was obtained after the search there were two detectives that showed up one of them's name was john yard and then the other was the testimony was his name was larry pest a challenge i think it may have been the secret service agent special agent vance pest but regardless they were not present during the stop the team at the time of the search and so you had no one  fluent spanish at the search itself or prior to the search so i just want to make that clear for the record so ultimately what we are asking this court to do  affirm the district court's determination on a consent search that it wasn't clearly erroneous because there are two permissible views of the evidence in this case and then because of the lack of a demonstration of an adequacy of interpretation and even with that inadequacy if there were one that in the absence of prejudice your honor we would say that there is no due process violation with regard to the interpretation services rendered so what about supervised release before you sit down thank you for asking about that i think in cafcass united states versus capice this court made clear that what we do is read we review the record as a whole and i think it's very clear as to why the judge imposed supervised release in this case when he first addressed the defendant's objection which was i abided by my terms of condition during pretrial release therefore do not pose supervis i think the court in response to that objection said you know there are a lot of cases in which defendants abide by pretrial release conditions but yet we still impose supervised release and overwhelming majority of those cases that you did now that w yeah if that were the only finding your honor that would be insufficient just because someone else gets it doesn't mean they should but when we look at the other statements this court which has been on the bench for a long time he was expressing his concern about restitution he wanted to ensure these victims are made whole and then there really doesn't ever connect the dots i mean he says i want you to pay even says i'll give you a break i'll shorten your supervised if you do but he never says the one and only reason or one of the five reasons are or whatever else it may be reason on imposing supervised release is to ensure that we've got some hook  think though he almost does completely complete to the extent it's required and i would respectfully disagree that that he would have to explicitly do that but when he states two years supervisor lease if you get the restitution paid then we'll take off if you get paid within the first year then i'll take it off i think that's as close as it gets to connect but give you an example outside of connecting the dot explicitly is in the united states versus capice with respect to defendant jurgens judge carolyn imposed a term of supervisor least had gone through all the thirty five fifty three a factors in determining their sense of imprisonment didn't necessarily connect those thirty five fifty three factors directly to the supervisor ways and yet this court looked at the record as a whole and said you know that is a sufficient explanation of the thirty five fifty three a factors to support the imposition of that term a supervisory lease and we believe by analogy that same reasoning should apply here and certainly under thirty five fifty three a seven restitution to victims as an appropriate factor for the district court to take into consideration if there are no further questions from the bench sir and we would ask the court affirm the judgment the district court ok thank you now you ran out of time as christianson but if you want to minute to talk about supervised release i will give that to you about the supervised release i think it's pretty clear that the judge thought and the primary thought was well everybody get supervised release and you consider the pretrial but also didn't consider the fact that mr levy had no criminal history  been on probation before had never needed to comply had never had a problem he was in florida entirely pretrial and pre sentencing and always complied the other issue is that for payin restitution he will he is currently paying through the eye of r p in prison his co defendants are paying because they got shorter sentences or and are on supervised release and they didn't government can continue to collect through their financial litigation unit the banking matter is