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United States v. Mejia-Perez

United States District Court, D. Arizona

May 30, 2018

United States of America, Plaintiff,
v.
Henry Dosveli Mejia-Perez, Defendant.

          REPORT AND RECOMMENDATION

          ERIC J. MOKOVICH. UNITED STATES MAGISTRATE JUDGE

         Pending 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.

         Pursuant 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.

         The Magistrate Judge recommends that the District Court, after its independent review, grant defendant's motion and dismiss the indictment without prejudice.

         I. FACTUAL BACKGROUND

         A. The Incident Resulting in Arrest

         The 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.

         B. Prior Court Proceedings

         The 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.

         On 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.

         Rosendo 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.

         At the 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.

         On 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 availability.

         On 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.

         On 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.

         C. Events Subsequent to the Arraignment

         The 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.

         On 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 ...


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