UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 22-50110

Plaintiff-Appellee, D.C. No. 3:19-mj-24522- v. LL-TWR-1 ULISES ROMEO LUCAS- HERNANDEZ, OPINION

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Todd W. Robinson, District Judge, Presiding

Argued and Submitted April 8, 2024 Pasadena, California

Filed May 23, 2024

Before: Marsha S. Berzon and Salvador Mendoza, Jr., Circuit Judges, and Susan R. Bolton,* District Judge.

Opinion by Judge Bolton * The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. 2 USA V. LUCAS-HERNANDEZ

SUMMARY **

Criminal Law

The panel affirmed the district court’s ruling upholding Romeo Lucas-Hernandez’s misdemeanor conviction for attempted illegal entry under 8 U.S.C. § 1325(a)(1), following a bench trial before a magistrate judge, in a case in which Lucas-Hernandez asserted that the magistrate judge erred by admitting a border patrol agent’s Spanish-to- English translation of Lucas-Hernandez’s field statements. In United States v. Nazemian, 948 F.2d 522 (9th Cir. 1991), this court 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 on a case-by-case basis 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. Lucas-Hernandez argued that the agent’s testimony of Lucas-Hernandez’s field statements was hearsay and fell outside the hearsay exclusion in Federal Rule of Evidence 801(d)(2) because the agent was not a “mere language conduit” under Nazemian, 948 F.2d 522 (9th Cir. 1991); and ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. USA V. LUCAS-HERNANDEZ 3

that the agent employed specialized knowledge as a Spanish interpreter but was not qualified to give expert testimony. The district court found that Nazemian did not apply, so the agent’s testimony as to Lucas-Hernandez’s field statements was not hearsay; the agent laid a sufficient foundation that he understood Lucas-Hernandez’s statements; and any error in admitting Lucas-Hernandez’s statements was harmless. This court had thus far applied the Nazemian factors only where the witness testified to a third-party interpreter’s translation of the declarant’s statement. The panel held here that Nazemian’s four-factor analysis applies to the statements of a party opponent that are translated by the testifying witness. Rejecting Lucas-Hernandez’s argument that the government could not have established the required element of residency-status under § 1325(a)(1) absent the testimony about his admissions during the field interrogation, the panel held that any error in admitting the agent’s Spanish-to- English translation was harmless considering together the evidence presented from Lucas-Hernandez’s A-file, database searches, and the circumstances when he was found by the agent. 4 USA V. LUCAS-HERNANDEZ