Criminal defense lawyers are forced to rely as much on instinct as information. Clients may genuinely not know the facts or refuse to share them. Criminal discovery, despite the stakes in criminal cases, is a shadow of its civil counterpart. Prosecutors, more often than not, “play things close to the vest,” to quote a direction ascribed to one of the DOJ prosecutors in the disgraced prosecution of Sen. Ted Stevens. But the defense has no excuse, the Eighth Circuit implicitly holds in United States v. Abdirahman Mohamed, issued on August 16, 2013, when it has simply failed to analyze evidence provided in raw form by the government – here, a recording in a Somali dialect for which the government had provided only a partial transcript. The case also analyzes the circumstances under which a government agent may testify under a pseudonym.
Mohamed had been charged with food stamp fraud, based in part on the evidence of a cooperating witness who had recorded several encounters with Mohamed in his store. The defense challenged the introduction of a selective translation of portions of these recorded conversations on several grounds: the absence of testimony from the actual translator violated his rights under the Confrontation Clause; the failure to translate the entirety of the conversations violated Rule 106’s rule of completeness; and an FBI linguist who verified the accuracy of the translation should not have been permitted to testify under a pseudonym.
The Court of Appeals affirmed the district court’s rejection of all arguments. The absence of the original translator, even if error, was harmless beyond a reasonable doubt. The defense could not challenge the failure to translate the entirety of the recordings, where it could not specify any portion improperly excluded. After all, Mohamed was given a copy of the entire recording “well before trial,” and indeed, was granted a continuance so he could translate it.
Finally, on the issue of the pseudonym – a not infrequent occurrence in criminal trials, and a significant matter impacting the Confrontation Clause – the Court considered the factors applied by other circuits, such as whether the defendant was informed of the witness’s real name before the witness testified, and whether the defendant was able to cross-examine the witness on his or her background and/or credentials.
In the current case, the linguist’s use of a pseudonym did not deny Mohamed the opportunity to effectively conduct cross-examination. The district court disclosed Hashi’s real name to defense counsel, so defense counsel had the ability to investigate Hashi’s background. The government disclosed information on Hashi’s qualifications and experience. The district court also allowed defense counsel to cross-examine Hashi on his qualifications and experience, and defense counsel did so. Therefore, no Confrontation Clause violation occurred.