                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 16 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 00-5132
                                                    (D.C. No. 97-CR-110-C)
    FELIX RENDON OSUNA,                                   (N.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before BALDOCK , PORFILIO , and ANDERSON , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Defendant Felix Rendon Osuna was convicted following a jury trial of

possession of a machine gun in violation of 18 U.S.C. § 922(o) and possession



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
of an unregistered firearm or destructive device in violation of 26 U.S.C. §§ 5845

and 5861(d). He appealed his conviction. This court remanded his case for

resentencing with respect to the number of destructive devices possessed by

Mr. Osuna, and for the district court to make findings as to whether the lack of an

interpreter under the Court Interpreters Act, 28 U.S.C. § 1827(d)(1), “inhibited

communication by Osuna with the court and jury, or inhibited Osuna’s

comprehension of the proceedings and assistance to his counsel to such an extent

as to have made the trial fundamentally unfair.”   United States v. Osuna , 189 F.3d

1289, 1293 (10th Cir. 1999) (quotation omitted).

                                            I.

       Under the Court Interpreters Act, a criminal defendant who relies

principally on a language other than English has a statutory right to a

court-appointed interpreter when his comprehension of the proceedings or ability

to communicate with his counsel would otherwise be impaired.      Id. at 1291.

Mr. Osuna, a naturalized citizen, was born in Mexico, but has lived in the United

States since 1975. Mr. Osuna speaks English, spoke English with his lawyer and

during court proceedings, and never requested an interpreter. During the trial

proceedings, however, the court reporter had difficulty understanding many of

Mr. Osuna’s answers, noting some fourteen times in the record that his answers

were “unintelligible.”   Id. at 1293, n.3. The trial judge also commented that


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Mr. Osuna was answering many questions very rapidly and was not always

answering the questions asked, causing confusion. At one point during the trial,

the prosecution mentioned to the trial judge that “maybe we ought to have

a Spanish interpreter.” R. Vol. IV, at 408. However, Mr. Osuna’s counsel

declined, stating he thought that “would even be more difficult.”   Id. Although

Mr. Osuna did not raise the issue before the trial judge, he claimed on appeal that

the trial court erred in not appointing a Spanish interpreter for him. This court

could not determine from the record whether the use of an interpreter would have

alleviated Mr. Osuna’s difficulties in presenting his testimony, and remanded for

further findings and proceedings.    Osuna , 189 F.3d at 1293-94.

      On remand, the district court held an evidentiary hearing. The probation

officer who prepared Mr. Osuna’s pre-sentence investigation report testified that

his interview with Mr. Osuna was conducted in English, and that Mr. Osuna

appeared to have full comprehension of the English language. The probation

officer testified that Mr. Osuna was able to describe the circumstances of his life

in English, and that there was never any indication during the interview that

Mr. Osuna was unable to understand his questions. Mr. Osuna testified at the

hearing on his own behalf, this time with an interpreter. He testified he speaks

Spanish at home and often at work and claimed that he had difficulty

understanding the questions posed to him at trial.


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      The district court made detailed factual findings that the lack of an

interpreter did not inhibit Mr. Osuna’s comprehension of the trial proceedings or

his ability to present his case. It first noted that Mr. Osuna’s testimony at trial

indicated he regularly speaks English and that there had never been any indication

during the trial that Mr. Osuna spoke primarily a language other than English.

The court explained that the confusion it referred to during the trial and the points

in the trial transcript indicating Mr. Osuna’s answers were unintelligible were

caused not because he spoke primarily a language other than English, but because

of the manner in which he presented himself. Specifically, the court found that

Mr. Osuna often spoke too rapidly to be understood, pointing out that the record

reveals he frequently had to be asked to slow down. In addition, the district court

found that some of the confusion in Mr. Osuna’s testimony was caused because he

failed or refused to give responsive answers to the questions. Further, the district

court noted that defense counsel posed confusing and inarticulate questions to

Mr. Osuna. The district court found that throughout the majority of his testimony,

Mr. Osuna was able to give clear, articulate and precise answers. Finally, the

district court found that Mr. Osuna’s testimony during the evidentiary hearing

lacked credibility, noting that he conducted himself during the hearing entirely

differently than he had at trial. The district court noted that despite Mr. Osuna’s

claim that he did not understand the questions asked of him at trial, he answered


                                          -4-
questions at the hearing before his interpreter translated them. Because the

district court found that nothing inhibited Mr. Osuna’s capacity to understand,

communicate and fully participate in his trial, it denied his request for a new trial.

The district court later resentenced Mr. Osuna in accordance with this court’s

remand order, and that issue is not challenged on appeal.

                                                II.

       The appointment of an interpreter under the Court Interpreters Act

is committed to the trial court’s discretion.         Osuna , 189 F.3d at 1292 (citing

United States v. Tapia , 631 F.2d 1207, 1209 (5th Cir. 1980));          Valladares v.

United States , 871 F.2d 1564, 1566 (11th Cir. 1989). The underlying issue of

whether a defendant needs an interpreter, however, is a factual determination

made by the trial judge,   Osuna , 189 F.3d at 1292, and is reviewed only for clear

error. Gonzalez v. United States , 33 F.3d 1047, 1050 (9th Cir. 1994).

       We initially note that the district court did not abuse its discretion in

holding an evidentiary hearing consistent with our remand order.            See Osuna ,

189 F.3d at 1294 (remanding for findings “and if necessary, further proceedings

in the trial court to make those findings.”). Mr. Osuna claims that the district

court clearly erred in finding that his claimed language difficulties did not inhibit

his ability to communicate at trial. He contends the district court’s findings are

contrary to statements in this court’s remand order that his difficulties at trial


                                                -5-
were caused by the rapidity of his testimony and his Spanish speaking

background. Contrary to Mr. Osuna’s assertion, this court did not make

a determination in its remand order that he spoke a language primarily other than

English. As we pointed out in our remand order, we were unable to ascertain

from the cold record whether the problems with Mr. Osuna’s testimony would

have been alleviated by the use of an interpreter.    Osuna , 189 F.3d at 1293.

       The trial court is best positioned to evaluate the need for an interpreter

because it is in direct contact with the defendant, and therefore can best assess

the defendant’s understanding of the English language, the complexity of the

proceeding, and the linguistic context of the testimony.    See United States v.

Coronel-Quintana , 752 F.2d 1284, 1291 (8th Cir. 1985);      see also Osuna , 189 F.3d

at 1296 (Brorby, J., dissenting) (“the trial judge is in the best position to assess

a defendant’s or witness’ language usage, comfort level and intelligibility.”).

It is precisely for this reason that we remanded this case to the district court to

make the necessary factual findings based on its direct observation of Mr. Osuna

and the trial proceedings. The district court’s findings are not contrary to this

court’s remand order.

       Mr. Osuna also contends that the district court’s findings are clearly

erroneous because, while the record shows that he may have understood English,

it does not support a finding that he was able to speak English. We conclude


                                             -6-
from our review of the original record and the record of the proceedings and

testimony presented on remand that the district court’s factual findings that the

lack of an interpreter did not inhibit Mr. Osuna’s ability to communicate with the

court and jury, to comprehend the proceedings, or to assist his counsel, and did

not render his trial fundamentally unfair, are supported by the record.

      Accordingly, the judgment of the United States District Court for the

Northern District of Oklahoma is AFFIRMED.



                                                    Entered for the Court



                                                    Bobby R. Baldock
                                                    Circuit Judge




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