United States District Court, D. Arizona
REPORT AND RECOMMENDATION
J. MOKOVICH. UNITED STATES MAGISTRATE JUDGE
before the Court is Defendant Henry Dosveli Mejia-Perez's
Motion to Dismiss the Indictment based on violations of the
Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution, the Speedy Trial Act (18 U.S.C. § 3161,
et. seq.), and the Court Interpreters Act (28 U.S.C.
§ 1827). (Doc. 25.) The defendant seeks dismissal of the
Indictment because he speaks insufficient Spanish (or
English) to adequately communicate with counsel and
understand court proceedings, and an interpreter cannot be
located for the defendant's primary language, which is a
dialect of Mam. See Def.'s Motion to Dismiss
(Doc. 25). The Government filed a response essentially
arguing that it is the court's responsibility and duty to
find the defendant an adequate interpreter.
to LRCrim. 5.1, this matter came before Magistrate Judge
Markovich for an evidentiary hearing and a report and
recommendation. On May 17, 2018 and May 25, 2018, an
evidentiary hearing was held before this Court regarding the
motion to dismiss.
Magistrate Judge recommends that the District Court, after
its independent review, grant defendant's motion and
dismiss the indictment without prejudice.
The Incident Resulting in Arrest
defendant was arrested on December 14, 2017, for allegedly
assaulting a United States Border Patrol Agent. A criminal
complaint dated December 15, 2017, alleged the following
facts that led to the defendant's arrest. Border Patrol
agents on duty in Three Points, Arizona, observed two
individuals who they suspected had crossed illegally into the
United States. Agents apprehended one individual, but the
second individual, later identified as the defendant, ran
from the agents. One of the agents pursued the defendant on
his motorcycle. The agent found the defendant hiding by a
cactus. The agent announced himself as a Border Patrol agent
and gave commands for the defendant to put his hands in the
air. The commands were ignored and the agent grabbed the
defendant's shirt collar. The defendant stood up in an
aggressive manner and grabbed the agent's arm and
motorcycle handlebars, and lunged at the agent. The defendant
pulled the agent off the motorcycle and kicked and punched
the agent. Eventually, the agent was able to gain control of
and arrest the defendant. The defendant invoked his right to
counsel after his arrest.
Prior Court Proceedings
defendant appeared for an initial appearance on the complaint
on December 15, 2017. The defendant did not have counsel at
the initial appearance, and he used the services of a Spanish
interpreter. On December 19, 2017, the defendant had his
detention hearing and preliminary hearing, and again used a
Spanish interpreter for those hearings. The defendant's
appointed counsel was present for those hearings. In the
instant motion, defense counsel represents that during his
initial meeting with the defendant, it was apparent that he
had difficulty understanding Spanish. However, counsel
“felt that he could make it through the brief DH/PH
hearing with a Spanish interpreter.” (Doc. 25 at 2.)
Counsel concluded that the defendant would need a Mam
interpreter for future proceedings.
January 10, 2018, a federal grand jury returned an indictment
charging the defendant with assault on a federal officer. An
arraignment was scheduled for January 26, 2018. Because of
the need for a Mam interpreter, defense counsel rescheduled
the arraignment for an individual hearing on February 8, 2018
before this Court.
Aguilar, a Mam interpreter, was present by telephone to
interpret for the defendant at the hearing on February 8,
2018. (Dkt. #14.) Mr. Aguilar informed the Court that he was
unable to interpret for the defendant because of the dialect
differences. As such, the arraignment was rescheduled for
February 15, 2018.
arraignment on February 15, 2018 (Dkt. #15), another Mam
interpreter, Bertilda Mendoza, was present by telephone to
interpret for the defendant. However, once again, the
arraignment could not take place because the interpreter and
the defendant spoke different dialects even though they were
both from the San Marcos department. The arraignment was
continued to February 22, 2018.
February 22, 2018 (Dkt. #16), the Court advised the parties
that the interpreter's office for the District of Arizona
had not yet been able to secure an appropriate Mam
interpreter for the defendant. The Court reset the
arraignment for March 1, 2018. That hearing was later
rescheduled to March 2, 2018, based on the interpreter's
March 2, 2018 (Dkt. #18), for some unknown reason, Mam
interpreter Bertilda Mendoza once again appeared
telephonically for the hearing. Ms. Mendoza again confirmed
that she could not communicate with the defendant, and
expressed doubt as to whether the Court could secure an
interpreter that spoke the defendant's dialect. The Court
set a status conference and arraignment for March 14, 2018.
However, that hearing never occurred because of a
miscommunication with the potential interpreter as to the
time of the hearing. As such, the arraignment was continued
to March 19, 2018.
March 19, 2018 (Dkt. #23), Mariano de Jesus Garcia Matias
appeared telephonically to interpret for the defendant. Mr.
Garcia Matias speaks the defendant's dialect of Mam.
However, because Mr. Garcia Matias does not speak English,
Carlos Arvizu, a certified court Spanish interpreter, was
present to translate between English and Spanish. Defense
counsel met with the defendant using the services of both
interpreters prior to the arraignment hearing. The Court
ultimately conducted the arraignment using the two
interpreters, and set a trial date of May 1, 2018 and a plea
deadline of April 13, 2018.
Events Subsequent to the Arraignment
plan was for defense counsel to use Mr. Garcia Matias to
interpret for the defendant during their meetings at the
pretrial detention facility where the defendant is housed.
However, defense counsel has been unable to get in touch with
Mr. Garcia Matias since the March 19, 2018 arraignment.
April 6, 2018, court interpreter Juan Radillo advised the
Court and the parties that Mr. Garcia Matias was available
for a status hearing on May 2, 2018, and could set aside a
three-hour block of time for the hearing. That amount of time
was allocated for a status hearing to provide defense counsel
with an adequate opportunity to review a plea offer with the
defendant and prepare him for a change of plea hearing the
same day if the defendant wanted to accept the offer.
However, that hearing never occurred because Mr. Radillo lost