counsel good morning may it please the court i'm thomas hastert for appellant samuel the gash this is a case as you know that's a confrontation clause case and while i don't intend to speak much about the law except in responding to questions i thought it apt to begin with something from justice scalia in crawford as confrontation is really kind of a legacy of his in the in the criminal law and that is his statement before the court in crawford we do not think the framers meant to leave the sixth amendment protection to the vagaries of rules of evidence much less to amorphous notions of reliability it commands not that evidence be reliable but that evidence but that that reliability be assessed in a particular manner by testing in the crucible of cross examination and the central issue in this case is the quality of the interpretation law that allows you to be successful in the appeal that you are making what is the case or cases that you cite that you believe represent clearly established federal laws established by the united states supreme court on this issue yes and really i think crawford does that you know there is roberts yes very global issues but the facts are totally different than not it is not factually of an interpreter and into iraq so crawford is your authority right yes i mean i think that everything else well i would say i think rock and r s they i mean but but they are they are not interpreter cases if that's what you're asking me what i meant there you need to go to lynn and the other cases from the circuit and i know i need supreme court precedent right so i began and rest on crawford statement and me try to explain why that is offended here so  samuel again ash is an immigrant from eritrea his cousin comes here and subsequently her daughters whom he sponsors to come to this country  trial the daughter to testify through in english it's only the mother is how goss who testifies through an interpreter that interpretation is very clearly i would say from the record deeply flawed i think the interpreter fails i mean i mean after this council if i recall the record correctly when asked to specify  translation was incorrect your client indicated that there was one potential ambiguity instead of using the word discipline that should have been control what else so i will shift to speaking that which is kind of one of the piece first of all the record as it develops in the state court is significant and i i regret that the briefing wasn't as explicit on these two points that response about the difference between disciplining control i will speak to in detail but i would first note that it arises when the trial judge directs him to give one example and that is the example he gives not his best example or the right presumably  in short order the defense attorney speaks up and asks for questions in aid of objection around a question about control or where control comes into ms hagel says testimony on the heels of that five pages later in the transcript  she moves to strike and they end up deciding the call the interpreter in she asks for mr gast to testify that day the judge instructs you know i want to get through more things he'll testify later about that ends up being three hundred pages later but when the interpreter testifies that day the record is in audible as to the languages that are being spoke and although it's clear and it's clear from defense counsel's initial objection in the face of control that there are different languages involved and when mr gash testifies to the judge later he explains that both he and ms how goes his cousin native language is true to that is seven one thousand to seven twenty one of the excerpts of record is where you'll find all of that discussion onselen you know this is an argument i don't pretend to be an expert in spanish but i speak it pretty well not certainly not like my colleague but nobody can translate exactly there's always a difference so the question is what what's the issue how much is a problem and in this case as i see it the testimony of the mother is really not all that important in this case she's of collateral figure she's not the primary witness it's the victim under the president's prague what do we do with this you have to show that there was a substantial injurious effect do you not and i'm trying to figure out yes so i mean you and based on what you've said here how the does difference between discipline and control from the mother's testimony  makes that kind of a difference let me try to elucidate that because if you if you look and i would urge you to go to the prosecutor's opening statement and read that it's clear that he has some expectations about what's going to come in from his how goes this testimony and i think it's fair that both parties have that through a police report where her daughter translate and that's that comes out in the testimony  but the prosecutor is opening in talks about how and he refers to mr nigh gash as a father figure in this family the head of the household and how he is exercising discipline over the girls you know about where she's going how she doing school he interfaces with the school he then goes on to speak of her grooming grooming him grooming her with all respect he did a whole lot more than groom her by her repeated testimony grossly abused her according to her testimony and so the mother's never even heard from putting aside the first probably in this case i again i  struggle with how a minor discrepancy in the language translation has pretty much to do is showing prejudice here without the if the mother had even appeared you've got  jury going to believe what the jury's going to believe in the jury believe the girl right so it is it is a he said she said case the most about and i'll speak to why the mother matters in just a second it's a it's a case in which in the grand jury there were sixty two c charged thirty of those end up being dismissed with whatever comes out that that wasn't you know war now as they prepared for trial by the girl's accusations another seven r m j o s a twenty five counts for the jury which convict comes testimony alone the mother is not even considered the jury could easily have convicted this this man and it seems like your whole case is resting on the translation error if it  was for which you have no direct supreme court case and you haven't shown prejudice worth the prejudice or the state calls the mother as a witness the evidence that the defense would have developed and you can see this intice a painted by the prosecution in its opening is that the girl resent it mr gash because he was both very involved in her education the interface with the school he was this father figure he was questioning her about her social interactions what she was dealing doing with boys what she was doing of the things he was the defense theory is exerting that role of a father and a disciplinary and not controlling in grooming and the prosecutor is able to make it out but the testimony was that he raped her repeatedly right that is the girl's testimony as pretty important as not it's critical testimony absolutely and if it were credited without any other witnesses that would be enough to convict him but part of his ability to confront her was to confront the government's case her mother who brought her to this country when he sponsored them and who would have presumably testified if she had had an adequate  he was this father figure she's also if you look at the mother's testimony it is alternately i think fairly clear that she is kind of using the interim cation to evade when there's discussions about the trip to seattle and let me ask why call you my final statement that in this case on the interpreter issue things get get turned on their side and it's made incumbent upon mr going to gash who doesn't speak english is the first language to prove that things are wrong the state's briefing repeatedly the morning may have please the court jordan silk on behalf of the superintendent steve frankie district court correctly rejected petitioners confrontation claims in this case first and foremost because no state court ruling involved was contrary to or involved any unreasonable application of clearly established federal law i respectfully disagree with my colleague that crawford clearly establishes that the interpretation issues in this case  were amounted to a violation of the confrontation clause and there's no other cases that address this issue and i think that really and is the matter on that point to address the more specific issues that sort of go into the prejudice  component of that because additionally even if even assuming that the interpretation issues amounted to a while but what do we do with the petitioners argument that because we don't know what the victim's mother confrontation that he was titled sure a few responses to that one there's been no additional evidence presented even in the save us proceeding to further develop the record about the nature of the interpretation difficulties and i think and given the context of the petition bearing the burden here that's that falls more at the petitioners feet than at the superintendent's feet beyond that though it's there is actually i mean this case is somewhat unique in that mr new gash was at trial and actually the reason why this issue essentially arises is because he is able or so he claims to identify these problems with the interpretation and he does have an opportunity to outline those problems for the court and because in relation to another point which is what i find one of the most significant things about the record in this case is that when you read the transcript of the mother's testimony certainly there's no dispute that the with the interpreter did not translate verbatim it was not a certified translator it was the best that the that was available given the nature of the languages involved most of the question most of the answers are responsive to the questions there's written so that in and of itself i think is evidence that what that undercuts petitioner's contention that this was seriously in accurate translation and actually when you look at the petitioners testimony about the nature of the interpretation difficulties it really i think a fair reading of that testimony is that his major problem was that the witness was not providing a verbatim translation  interpreter the interpreter was paraphrasing question questions and answers but without changing the essential meaning so i think the record does show affirmatively that whatever that the nature of the interpretation problems to the extent there were any were in the nature of not providing a verbatim translation without ultimately the essential substance the essential meaning and accuracy of the translation being affected and i think you know but one of the issues that arose in the cross examination of the mother was this issue about the mother testified that she got into work in the morning and then in the afternoon it was she worked for eight hours in response to a question how long did you work and the enter the interpreter initially just at eight hours and it was the defense counsel developed this idea that well you left off the front part where she said she got in in the morning and then in the afternoon it was eight hours so this  a i mean the defendant is making an issue about a potential problem in the translation of that that in significant of a point i think that it would certainly be the case that if there was something like she was asked you know did your daughter disclose this abuse and she said yes and that was an incorrect translation and he would have been standing up and saying no that's totally wrong the bottom line is from your perspective because mr gash was there he did speak both languages if there was a problem through his lawyer he immediately interjected and question is that correct it seems to be the case the you know and the other issue is that so then when he mr gash later testifies about the interpreter issue the one exam to you know to respond to my opponent's point about that was just one example of the potential difficulties involved a that was you know he needs to it's his burden in this this case to establish that there was a problem so if that's the only example he has then that's what this court has to look at but there was actually a discussion after that where  defense counsel says well yesterday he also talked about the there being in accuracies in the translation of the mother's testimony about the statements that the mother had made to police and on cross examination of mr  gash about that issue the prosecutor kind of goes through and said well here's the police report this is what i asked her she said that she told the police this or she didn't tell the police that and that's all accurate and he confirms yeah that's what she said so even you know i think given the nature of the record in this case there's a sense that what mr gast was able to point out as problems with the interpretation are really all that's there and at the end of the day an interpreter paraphrasing testimony without changing the essential meaning is does not rise to the level of a confrontation violation and certainly the state trial court in this case record judgment thank you you know you don't have any rebuttal time left but you've done a fine job so we appreciate your argument the case just argued is submitted