Curbelo: Translations did not violate Confrontation Clause

In U.S. v. Curbelo, No. 10-14665 (Aug. 9, 2013), the Court affirmed convictions for manufacturing and possessing large quantities of marihuana with intent to distribute. The Court held that Curbelo waived his Fourth Amendment challenge, based on U.S. v. Jones (2012), to the police’s use of a GPS device on his car, because he failed to raise this suppression issue before trial, as required by Fed. R. Crim. P. 12(b). This waiver applies even to “claims based on a new ruling from the Supreme Court.” Noting that, post-Alleyne, a challenge to the sufficiency of the evidence supporting the quantity of marihuana proved will no longer be reviewed for “clear error” by a sentencing court, but for whether a reasonable jury could find it beyond a reasonable doubt (drawing all inferences in favor of the verdict), the Court rejected the argument that the evidence was insufficient to prove that the defendant conspired to possess 1,000 or more marihuana plants. The jury heard testimony that the grow houses produced at least 1,190 plants. The Court also rejected a challenge to the jury verdict form, finding any omission “irrelevant.” The Court also rejected a Confrontation Clause challenge to the admission of English translations of the transcripts of taped conversations in Spanish. A cooperating witness – not the translator – testified that he reviewed the transcripts and that they accurately translated the conversations. The Court determined that the Confrontation Clause issue arose not out of the translations themselves, but out of the representation that the translations were correct. Here, the person who made that representation was not the translator, but a witness, who was subject to cross-examination, and who himself compared the recordings and transcripts. Consequently, no Confrontation Clause violation occurred. The Court distinguished other cases involving the certification by a person who had no first-hand knowledge of the facts, and who testified about others’ assessment of the facts. The Court rejected the argument that a jury verdict was required on the forfeiture count, pointing out that Fed. R. Crim. P. 32 only requires a jury verdict on the forfeiture of “specific property,” but the judge can decide forfeiture of “money judgments” – as here.