a native of turkey whose primary language is not english who was tried testified and was ultimately convicted by jury without the assistance of a court interpreter despite his requests for  ok so i'm actually really interested in figuring out what you think is the right standard to judge this kind of thing because we know there are a lot of people for whom english is a second language you nonetheless are quite fluent perhaps even more fluent than those of us who only speak english suggest because english is your second language to me isn't and the statutes clear that's not the end of the inquiry we also i totally understand the point that you can know enough english maybe right and that's different from speaking in comprehending all you know i get all of that but we also know the district courts have to be the one to kind of assess facts of somebody's kind of lingering visa v their knowledge of english or not so how is  appellate court to judge a district court's evaluation of that well i think that is the issue before us and it is a course specific to this case but let me suggest some of these factors first of all the court basically concluded after significant discussion with mr koskinen who i think did at least a good job of expressing how we couldn't express himsel by saying i need time on the deliberation i'm better at using english and writing than orally i have trouble with people speaking too quickly or simultaneously there are certain pronunciations certain ways of speaking i can understand orally i can't do this as well as i need to so one thing you should be looking for is an appellate court is that level of information which i found in other cases and i've looked at a lot of cases across the circuits not just this circuit i mean never found that a level of specific information about what the problem is with fil but looking at it through the district court and i have we have a guy who spent seven years at syracuse university he's been in the country fourteen years and just looking at the record of appears to be very few instances where he indicated any problem understanding his his attorney and ever said i know i have trouble communicating with him i'd like to address all of that those are all part of the factors that this court needs to consider and they're all here that are we considering factors are we trying to decide if the district court's determination was clearly erroneous the tenth circuit seems to indicate that that's what we're doing and so that's a different prism than just straight up abuse of discretion it's an abuse of discretion standard there's a clearly erroneous factual determination that sort of thing is what you're used to but the facts here that he determined wear one you're intelligent and two you made some fairly sophisticated if some would consider frivolous arguments to me today he didn't say i don't believe you when you say you have problems when people are talking simultaneously i don't believe you when you say that you can't understand certain things because of the pronunciation i don't believe you when you say i need time to express myself orally and time to understand what said orally so this is not a situation where you have hurdles of clearly erroneous findings i don't think so i'm not suggesting it's clearly erroneous to say that mr costin is in his intelligent intelligent people don't speak english it's a shrewd and so i have no reason to believe he's not intelligent i mean he he was fairly articulate and saying what his problems were with not being run you addressed the syracuse university thing because to me that is the biggest argument against you because i think you can live in this country a long time and not speak english well i think you can write english and not be able to comprehend it all of that i completely agree with you that that's all possible but i think it's difficult to get around the idea that you're attending university which is part of the world part written and apparently doing ok so how do you answer that we don't know that he was apparently doing ok first of all he came in the united states in two thousand to get a master's degree and learn english he goes at some point syracuse university and by two thousand and seven he ended his studies there's nothing in the record to suggest what he studied how well he did there whether he took a one hour per semester or three hours every other semester he there's no evidence he got any degree of any sort there's really no evidence what he did it's syracuse and it isn't that he was burned to bring that forward to say look i mean while i attended syracuse i took you know all math classes or all classes that were online that i could you know keep watching over and over again or you know whatever whatever that would explain as opposed to what we all think of as a traditional college class where you have a professor talking sometimes very quickly and and you're comprehending and doing well well i had you know would prefer that he had talked to more about his stay in syracuse see didn't know what he studied i thought he was he almost obtained his master's degree in telecommunication and network management he said at some point and i think this was a probation officer that he studied i think that's in the pre sentence report he said he studied telecommunications and networking management i have i saw nowhere where he said or it's verified that he almost completed well according to the transcript of the immigration proceedings he has two classes short of obtaining his master's degree he had that and that is in the record through the a follow your own ok well i think that's that's something put some meat on the bones to get does and there's no question that i mean it's meat on the bones but it took seven respond to the question because he didn't understand that the only remark he made during the trial our just about the only remark or i don't understand the rude you spoke up out of turn and that but of all i think the fact that he didn't understand the rules is significant under the court reporter court interpreters act because the question is does the fact that his language is primarily not english inhibit his but you at least have to be able to discuss these things with them orally i mean i as someone who's represented people for whom english is a second language i found when i've gone to the jail and i sat down and you know they said we i can speak english and i start talking about due process or procedure or indictments or burden of proof their eyes glaze over which they nothing from the or you're complaining about he didn't complain but he also didn't to reinforce what you were thinking would and the only time we hear from the lawyer at all is that sentence and where he essentially admits that he doesn't understand things so the lawyer says he didn't understand so i think that's a very good fact for you that the lawyer at something later says he didn't understand why it says yes and that's that's a good fact in the record for you i'm complete backup to the legal standard and do you have to show that there is some prejudice for this well do you not need to show prejudice because it's appears that they're the stay from he his main point is the stay from the second circuit we have the order where there's it's it's been fake if there's no state in fact so he was legitimate for them to he doesn't have a legal argument as far as i can tell and i may say i agree with you but it took me a long time to figure that out which goes to sort of the issue of the complexity of the case which i think is a factor in my favor as well mr prosper and specter but they are i don't see how you have to prove prejudice when the question alternately according to this the fifth circuit under tapia is whether the trial and at the end of the day is fundamentally unfair i mean it can't you have a fundamentally unfair trial even if there's sufficient evidence to support the conviction so i mean i'm kind of back i still don't feel like i have a clear understanding if we are if we are to articulate was we have to have a measure by which we judge the district courts determination so you were going to you said you were going to give us factors i'm having trouble understanding with those factors are is you would have us as the legal standard by which we judge the findings that the district court made or didn't make the question is did the as the english a second language inhibit his ability to understand the proceedings to communicate with counsel in the court and as a witness to testify to express himself judge davis said he expressed himself but if you look at the issue that i raised about the use of the word cordial i mean there's no way he was using that word properly he even said it with respect to his prison testimony it was really cordial custody for them to keep me for forty five months when i've never committed a crime he's not using the word priest neither see people use words incorrectly my lawyer and just a moment but it's evidence of the problem he doesn't understand where merican words properly english words well you criticize the district court for not finding that the defendant was sort of lying when he said i have trouble you know communicating orally and listening to people talk fast and that kind of thing so if it is recorded said i don't believe you you lack credibility would that change this would you then not have appeal i mean is that what we're looking for for the district court to say look i just don't believe that you have that much trouble everybody has some trouble some people don't know what some legal terms mean and they only know english we have a lot of people that are not very well educated who end up in court and the only language they know is english but they don't know a lot of english big words in quotes her and i think though the fact that somebody doesn't know what mitigation means a lot of defendants who don't know any other language don't know what mitigation means so my question is is it the district court's lack of finding that firm deadly that is not credible and can we imply that finding from the district court i don't think you can imply the finding but i think that is one of the things you look at you have a trial you don't have a bilingual attorney you have someone who t interpreter this is not a plea this is a trial it's complex if for no other reason then because of his theory of defense with all of these courts and orders and requests for withdraw the mandate except for all those things you all know about and you don't have clear evidence of the nature of what he learned at syracuse in seven years you don't have an attorney who says judge he's lying and you don't have a judge who sells i disagree with you i think what you have is a judge who just took a simple way out said look you know you're smart models ruling and i don't think that's ok under our constitution and under the court reporter under the cou this case for us onto the alar of all these court reporting cases and i mean all these interpreter cases what's your best case my best case is is top up yet and it's not fully but you know they were manned and said see if there was someone sitting next to him an interpreter the best case is i could find no case where somebody goes through a trial says i can't understand expresses problems throughout the chinee doesn't say he's lying he's making the judge and he even testifies and gets convicted i mean it seems to me if nothing else when you add all those factors together you have maybe not a standard for every other case but certainly a standard for this one that there was an that there was an abuse of discretion in a fundamentally unfair trial that doesn't have to mean he would have been found not guilty it's just don't know that we would have to find them was clearly erroneous i wish the distro had made his findings tied to the court reporter i'm sorry the court interpreter x he did not but throughout the trial he made numerous  comments and findings specifically even at the very first hearing he told after the very first hearing lasted almost two hours and mr costin was allowed to speak on his own behalf mr johnson u ntil they got to the motion to quash which they held at the very in the hearing mr costin was allowed to speak for himself and after seeing all of that and the abilities of mr costin in the courtroom and interacting with mr costin for quite a while  just drill says part of your problem is you don't want to listen part of your problem is you want to talk and hopes that you can delay this proceeding so right there we understand from judge jerome that he believed that costin clearly understood what was going on in the courtroom and just was attempting to delay his proceeding now judge brown did take a recess during this hearing and he went in the back of mr costin's a file and from that he would be able to say that mr costin engaged in the exact same type of activities in his administration flop proceeding where he was provided with an interpreter he refused to listen to the administrative law judge he tried to take over he tried to do things that he wanted to do and it got so bad i believe the issue abandoned and ordered him to ported so mr costin's and a pain in the rear and in these proceedings is not new and was clearly reflected in his immigration file where he had an interpreter and i would chastises him and tells him mr costin you need to speak turkish you need to rely on the interpreter and in spite of that mr costin continued to speak english and at one point the a have to speak turkish just because the as a turkish interpreter helping him understand what other people are saying i don't understand why that the fact that he can speak english somewhat i mean that may be it that may be one of the factors but i don't understand why he has to speak turkish just because he has a turkish interpreter and i've seen proceedings where the person speaks in english but listens in spanish or because they want to be able to make sure they understand it better and i don't know what the rules are in this administrative proceeding your honor and it could be that this particular judge had just been burned in the past on an appeal where and defendants or excuse me a and alien spoke a lot of of english and then on appeal claim that there was some communication problem i don't particularly know but i would point out that in response one of the times the the administrative law judge was speaking english and i don't believe it was a minute i have a first by memory on the transcript recently but i don't believe that it was a very detailed or difficult to understand conversation and mr koskinen thing or said that he didn't understand and the judge is very frustrated with him and said look you see you keep speaking to me in english and when i try to respond in english then you pretend you don't understand so so that's assault with the ministry of law judge but that's the part we don't have a pretend in the district court record if we did that this would be a much easier case probably if the judge if the judge said you pretending you're faking and that would make the whole case quite simple under clearly erroneous absolutely but he did say that i just think that you're trying to talk and talk and talk and try to delay these proceedings and prevent your inevitable immersion record before drove through it was you he asked the government to make an exhibit in that as his native language was spanish i'm guessing we wouldn't have this case because i'm guessing a spanish interpreters pretty easy to come by in the western district louisiana maybe doesn't have as many spanish speaking defendants as other parts of the fifth circuit but nonetheless that's a common language that's not english spoken by people in this in this general region maybe even french i don't know but you know some of the language that's very common the problem as i see it is judge drill probably didn't know where it was going to find a turkish interpreter at the quickly and should that matter because i'm guessing if there was if the language was spanish and he had a spanish interpreter sitting in the next room or down the street just call him up and get him down there and not have this issue because as a judge the last thing you want to some issue about what was my understand what was going on but because it would be some kind of convoluted thing to go find an interpreter in this language i'm guessing that in some degree drove it and is that proper i don't actually know that that's the case your honor i have had cases in shreveport where we had great difficulty in finding a qualified spanish interpreter especially at the last minute because they are there's one lady who does a lot of the interpreting both entry put him and i when she is in high demand as you might imagine i think she's possibly the only certified court interpret anyway i think that what drove judge jones decision is not necessarily the type of interpreter although i can see that that is a difficulty of getting interpreter in any language as opposed to that there are courts where there is an interpreter on standby and certain length which is is do you think that factored in and is that an appropriate factor the difficulty of getting a turkish interpreter i think there's no indication the record that it was wrong or i think the judge was frustrated with what he perceived as mr costin's attempt to delay the proceeding and in line with his refusal to get on the airplane or feel to walk in the airport without screaming dragging out his immigration proceeding for over two years of using to cooperate with the a l j i think the judge was just very sincere to the steps that mr costin's history indicated he had taken to delay his inevitable deportation and i don't i think if mr costin had stood up and said you know i'm sick and i need to go to the doctor the judge would have had the same frustrations with the inability to go forward with the trial that day given mr costin's documented history but would have had to send him to the doctor unless he made a finding that he was faking it  that and opposing counsel i'm sorry they probably had a test banks but maybe the stress of the proceedings but i think that that judge pirro was just attempting to proceed with the trial that day he had the jury there he had the parties there i don't think that his inability to obtain easily a turkish interpreter was the really driving force because in such instances either the court or the department or someone could have come up i mean i've needed you know or do interpreters and all kind of unique to not in louisiana type languages and we have been able to come up with someone so i think it was just the well here goes again trying to delay everything and do you believe th president's plays a role in this analysis or do you agree with opposing counsel that whether or not he could have prevailed on the merits is irrelevant to this abuse of discretion determination i think that he i think that he does have to show some form of pressures are that he received a fundamentally unfair trial that's his and doesn't mean that he has to show that he had a meritorious defense does it i think he has to show that he received a trial that was so so mr it received a trial that was so fundamentally unfair it's i'm sure this is not an appropriate analogy but it is the thing this brings them out is the execution of the mentally ill where he does not understand what is happening to him and what is happening to him you have authority for this the standard that you would suggest for us to use i have not seen any case law that discussed whether or not i have not seen in the law but i think he does have to show that he received a fundamentally unfair trial at the very least and and this in this this can record does not demonstrate that he did see the relative lack of helpful opinions in this area and you have to be and so on but we don't have a whole lot that gives us us kinds and that's why i'm particularly interested obviously in resolving the particular case but also in providing some guidance or clarity or whatever you want to call it so we've heard from your opponent as to what the factors of the consideration should be what would you say what should district courts do when faced with somebody saying clearly he is a non native english speaker that's not we know that's not fake when you have a person like that and it's kind of a statute now we're looking at the second prong of whether that prevents them from understanding the proceeding how should a district court a value weight that what factors what analysis whatever well i think it's going to be very fact intensive and i don't know that it's easy to come up with a do one two three but i think in this case what is relevant is that the district court did have extensive interaction i mean this was an unusual case there actually it was not between the district court and mr johnson it was directly between the district court koskinen and so the district court was able to mean a lot of times you could just look at somebody and tell if they're comprehending what you're saying versus glazing over and have no idea and he could in the district or could also  see and understand that mr costin's answers to his questions were appropriate under the circumstances the court could look at the complexity of the underlying case it was not at all complex it was it was quite simple with mr costin just trying to obstruct the immigration agents as are the deportation agents as they tried to get him into the airport and on to the playing the judge could also from his extensive interactions with mr costin determine his sincerity and his truthfulness when he claimed that he could not understand the english language he could listen to any concerns that mr johnson all may have raised and mr johnson's only concern that i recall him raising at least during the trial was that a mr costin would not cooperate with him and he said costin was on the stand and i would also like to point that out your honour's the judge really did try to determine from mr koskinen what are your problems what is the issue in this case and mr costin refused to cooperate with the judge when the judge asked him when did you enter the united states he wouldn't answer when he asked the judge ask him what your education level he wouldn't answer the judge was trying to get answers from mr costin and was trying to make a rule reasoned decision in this case that mr costin had to do that in english but mr costin answered that answering those questions or the judge that answering those questions violated his right against self incrimination and were irrelevant because he was a warrior so he understood the questions he just did not want to answer them your honor so yes i agree the questions were asked in english but costin understood in english and refused to cooperate with judge darrelle when mr costin was on the stand on direct his lawyer ask him what is your country of origin and mr he said something along those lines i'm not going to do it so what about it i'm going to answer that question he understood what he was being asked he was just being difficult and did not want to cooperate with perceiving so the judge really so you're asking me what to suggest but i mean to what extent does the defendant have novelization to cooperate in the judge's determination mr costin would not cooperate with the probation office that is documented in the p s r he refused to answer a lot of their questions he would not provide them information about his family his education or his employment he he wanted to object to the entire p s r saying that it was all false it just the record is it's got many examples where it was the cause was given every opportunity to to prove you know to demonstrate to the judge need to make affirmative findings look you are just being difficult and strippers and i don't believe you i think this language thing your fake it in you know kind of a lingering visa the language it doesn't there need to be some express findings on that because i mean a lot of defendants are difficult they're still entitled to their rights i you know i think this is the challenge of being a trial judge is humans are human and not all of them are funding deal with so i don't find his being difficult a reason for him to be denied a right that he would otherwise be entitled to so if that leads to the district court saying look i think this turkish thing is yet another example of your trying to del cetera et cetera and therefore i find that you're not credible in what you're saying it seems like he says well i think you want to delay or whatever but he doesn't say you're not credible in saying yeah i understand english when i've spoken slowly and clearly and all of that but not when people talk fast and use big words and whatever that's of the essence of what he's saying he's not saying he doesn't speak any english and did the district court ever find that not credible i think that is  rulings although i agree fully that i wish the district had explicitly said that it did come up at sentencing where the judge explicitly said that mr costin had lost his credibility had no credibility or something along that lines but that was in context of sentencing the judge did not make any such explicit finding at the trial or in the pretrial hearing and as you said as one of  said earlier we we probably would have been here had he done that had he done so but i think that is implicit in in everything so is that it i mean is that kind of the bottom line going forward is a district courts automake whatever we do with this case that district works on a make explicit findings of if they if a defendant in the first hearing because this is unlike other cases where it was down the road says i need an interpreter i don't understand that the district court should make explicit findings about whether that's true or not at that stage or given the interpreter i think that it would be i think it would be extremely helpful obviously for the district court to make such findings and i think it would have been equally helpful had they u s a s the district court to have made such findings but would you agree that if it is true what he said in other words that yeah he can write read and write pretty well in english and when people speak slowly and use simple words he can follow but that he has difficulty in the like the discussion we're having now where i'm talking pretty fast and you're kind of responding in whatever that that would be hard for him to follow if that were true would he be entitled to an interpreter an interpreter an instruction from the court that everyone should speak slowly clearly insisting clay i have had that happen before too where you have witnesses with hearing problems or other difficulties and everyone is just told even when you have an interpreter you have to speak extremely play so that the interpreter can interpret and if that would have solved it just speaking slowly and everyone speaking one person at a time and not on top of each other then then that that could assault they didn't do that what i'm saying is if the court if it were true then you need some kind of accommodation be it an interpreter of it everybody speaking slowly whatever it is if that's truthful but he's not just milling gring or whatever the right word is faking  it then why was his trial fundamentally unfair if he didn't get that i don't think so your honor because the question to the court reporter act is does he speak only are primarily in a language other than english so as to inhibit his comprehension of the proceedings and i just don't see that in this case he didn't comprehend the proceedings i don't see that he received a fundamentally unfair trial  he as i said he spoke clearly back and forth which is trail his attorney never complained that he was unable to understand him and i just i think that in this case on the facts of this case that mr costin did receive a fundamentally  you i agree that you don't have a lot of guidance from the case law except for the absence of any case like this where someone went through a trial specifically in advance of the beginning of trial not on appeal was filed in advance by him course he was appointed by he was represented by counsel would have been inappropriate for him to fall something in the tone but certainly the first presentation court presentation other than the arraignment where apparently there was no translator we i don't have a copy of what happened at the arraignment but there's no indication of a translator there are some indication that the following talked earlier and  e certainly made some filings with the judge later in the case specifically recall one and you when you read the filing because we don't have all of the filings that he made in all the circuits although he did say that he had help from detainees i think it's important to acknowledge that and then he took hours and hours and days and days to do that work but he did even in the filing that's in this record you can tell he doesn't use words properly all the time i mean intelligence can only go so far when i don't think the intelligence thing i mean i don't get any more or less intelligent when i go to a foreign country but it doesn't mean i can speak their language such an unusual case because normally you just get an interpreter when the issues raised whether it's by the lawyer about you know what it says inhibit not inhibit a lot and hit communication understanding and i don't think that the court's ruling in any way said i do not believe you when you say all went kicking and screaming the airplane wouldn't get home and that everything you could to slow down well he knew that he went kicking and screaming eventually but it's not clear from the record how much he knew what was in that frustration that mr costin created with the judge and probably others he's been he's dealt with was it and it was he made the determination and then he had the lawyer put it into the record isn't that that's proceedings but he's filed with the lawyer said as he's filed so many things in english and that's when mr costin suggested when i have days and days and weeks and weeks to work on it all and testified later with the help of detainees guards to the council's responsibility i think there are guidelines when you need to request a terminator and it's one of the factors whether or not you've used an interpreter in prior proceedings i'm just been our case i would have expected and the attorney to as for an interpreter just to go see the client and would have approved that expenditure i mean i know we're not asked this isn't an ineffective assistance of counsel claim but in my practice and twenty plus years of being the federal defender we err in favor of getting an interpreter so that we're not dealing with this problem now or later or what for and if you were still here in a