ARNULFO TORRES PEREZ, PETITIONER V. UNITED STATES OF AMERICA No. 90-6874 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-6a) is reported at 918 F.2d 488. JURISDICTION The judgment of the court of appeals was filed on November 21, 1990. The petition for a writ of certiorari was filed on January 23, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court erred by failing to provide a translator to petitioner at the hearing at which the court accepted his guilty plea. STATEMENT After a plea of guilty in the United States District Court for the Western District of Texas, petitioner was convicted of conspiring to distribute and to manufacture methamphetamine, in violation of 21 U.S.C. 846, and on two counts charging distribution of methamphetamine, in violation of 21 U.S.C. 841(a)(1). He was sentenced to 240 months' imprisonment, to be followed by five years' supervised release. The court of appeals affirmed (Pet. App. 1a-6a). 1. Petitioner is a citizen of the Republic of Mexico who has resided in the United States for 19 years. Pet. App. 3a. On March 15, 1989, petitioner met with undercover DEA agents to discuss the purchase from the agents of chemicals and glassware to produce 100 pounds of methamphetamine. Id. at 2a, 33a. On April 12, 1989, petitioner again met with the agents and gave them two samples of methamphetamine. Id. at 33a. Later that day, petitioner gave the agent $19,960 in cash and 224 grams of methamphetamine in return for chemicals and glassware. After completing this transaction, petitioner and his half brother were arrested. 2. At his initial appearance before a magistrate, the magistrate asked petitioner if petitioner understood the proceedings. Petitioner replied, "I understand everything so far." Pet. App. 2a. The magistrate then told petitioner that "if you have any difficulty in understanding what's going on, stop and let us know so that we can do something because we can get a translator to assist you." Petitioner did not request a translator or other assistance. Ibid. At petitioner's detention hearing, the magistrate noted that a translator was present in court but stated that "it was my understanding from the initial appearance that * * * both defendants in this case understand English." Petitioner's counsel agreed that petitioner did not need a translator to understand the proceedings. Pet. App. 38a. Prior to trial, petitioner agreed to plead guilty to the indictment. At the hearing at which the district court accepted his plea, petitioner did not have a translator. During this hearing the district court asked petitioner more than 30 questions regarding his understanding of the rights that he was giving up by pleading guilty, the nature of the charges against him, and the possible penalties that he faced. Petitioner responded appropriately to each of those questions without requesting a translator or seeking any explanation from his attorney or the court. Pet. App. 24a-35a. At the conclusion of this hearing, the district court found that petitioner "fully underst(ood)" the charges against him, the penalties for his offenses, and the rights he was waiving by pleading guilty. Id. at 35a. At petitioner's sentencing, an official court interpreter translated the proceedings for petitioner. Pet. App. 3a, 36a. 3. The court of appeals rejected petitioner's claim that he should be allowed to withdraw his guilty plea because the district court did not inquire into whether petitioner needed an interpreter at his plea hearing. Pet. App. 1a-6a. The court noted that the magistrate at petitioner's initial appearance and at his detention hearing advised petitioner of his right to an interpreter and that petitioner did not ask for an interpreter on either occasion. The court held that "the magistrate's inquiry and (petitioner's) response sufficiently reflect that (petitioner) was capable of understanding the judicial proceedings and was aware that a translator was available to him if needed." Id. at 4a. It found that, in these circumstances, the district court was not required to repeat the magistrate's inquiries absent a request for assistance from petitioner or some indication that petitioner required an interpreter. ARGUMENT Petitioner contends (Pet. 4-9) that the district court's failure to provide him with a translator during his guilty plea proceeding prevented him from understanding that proceeding and thus from entering a knowing and intelligent plea. This contention is without merit. A guilty plea is valid if it is entered knowingly and intelligently. See McCarthy v. United States, 394 U.S. 459, 466 (1969); Fed. R. Crim. P. 11. Rule 11 guarantees that a guilty plea will meet this standard by requiring the district court to inform the defendant of the nature of the charge to which he is pleading guilty, the maximum and minimum penalty he faces, and the rights that he is forfeiting. In this case, the district court fully complied with Rule 11 by extensively questioning petitioner on these matters. Petitioner responded in English to each of the district court's questions. Moreover, petitioner told the magistrate -- in English -- at his initial appearance that he understood the proceedings, and his counsel stated at petitioner's detention hearing that petitioner did not need an interpreter. Also, petitioner has lived in the United States for 19 years, and he points to no evidence in the record that suggests that he does not understand English. Accordingly, the district court correctly concluded that petitioner understood the consequences of his guilty plea, and there is no merit to his claim that his guilty plea was not knowingly and intelligently entered. For the same reasons, there is no merit to petitioner's claim (Pet. 5-6) that the district court's failure to provide him with an interpreter violated the Court Interpreter's Act, 28 U.S.C. 1827. Under that statute, the district court was required to appoint an interpreter at petitioner's guilty plea hearing only if the court "determine(d) on (its) own motion or on the motion of a party that such party (including a defendant in a criminal case) * * * sp(oke) only or primarily a language other than the English language." The district court's decision whether to appoint an interpreter under this statute is a discretionary one subject to the abuse of discretion standard on review. See Valladares v. United States, 871 F.2d 1564, 1566 (11th Cir. 1989); United States v. Coronel-Quintana, 752 F.2d 1284, 1291 (8th Cir.), cert. denied, 474 U.S. 819 (1985). Because neither petitioner nor his counsel requested an interpreter and because nothing in the record put the district court on notice that petitioner needed an interpreter, the district court did not abuse its discretion by failing to provide petitioner with an interpreter at his plea hearing. Petitioner makes two subsidiary claims, both of which also are without merit. First, he claims (Pet. 7) that only he, and not his counsel, could waive his right to an interpreter at his plea hearing. The court of appeals recognized that "(t)he waiver privilege is, of course, personal to the defendant." Pet. App. 5a. But as it explained, the waiver privilege "only factors into the proceeding upon a judicial finding that either the defendant's comprehension of the proceedings, or his communications with counsel or the court, is inhibited by language or hearing difficulties." Ibid. In the absence of any evidence that petitioner did not understand the proceedings, petitioner had no right to an interpreter. Second, he asserts (Pet. 7-8) that his counsel was ineffective for failing to request an interpreter. The court of appeals did not consider this issue, and this Court ordinarily does not consider issues not passed on by the courts below. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 147 n.2 (1970). In any event, it seems likely that petitioner's counsel did not request an interpreter because, as the record makes clear, petitioner did not need one. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General J. DOUGLAS WILSON Attorney APRIL 1991