LEWIS A. KAPLAN, District Judge.
Ahmed Khalfan Ghailani recently was convicted of one count of conspiracy in connection with in the 1998 bombings of the United States Embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya, in which over 200 people were killed and over 4,000 injured. The jury further found that his conduct directly or proximately caused death to a person other than a conspirator. He now awaits sentencing.
At trial, the government presented over 40 witnesses, many of whom were East African Swahili speakers who testified through an interpreter. Naturally, the government produced prior statements of these witnesses under the Jencks Act. The documents produced that are relevant here were FBI 302s that purported to summarize statements the witnesses had made prior to trial in interviews at which FBI agents were present. During the cross-examination of a number of these witnesses, the defense sought unsuccessfully to elicit admissions that the witnesses previously had made statements in those interviews that were inconsistent with aspects of their trial testimony. These witnesses then were excused and returned to Africa.
As the government's case drew to a close, the defense notified the government that it wished to call a number of FBI agents to testify that six of the government's East African witnesses had made statements in those interviews that were inconsistent with certain statements that they had made on direct examination during the government's case in chief. The government objected, arguing chiefly that
All or most of the witnesses whose statements the defendant sought to impeach by calling FBI agents to testify to prior, allegedly inconsistent statements were interviewed during the investigation of the bombings. FBI agents as well as Swahili-speaking East African police officers were present at each interview. The local police officers translated, in one way or another, between the English-speaking FBI agents and the Swahili-speaking witnesses. The FBI agents prepared 302s with respect to the interviews in accordance with standard FBI practice. The 302s in some instances reported alleged statements by the witnesses that in one way or another were said to be inconsistent with their direct testimony. The FBI agents, however, spoke no Swahili. Their 302s therefore merely summarized what the East African police officers, who interacted with the witnesses in Swahili, told the FBI that the witnesses had said. Hence, the FBI authors of the 302s had no personal knowledge of what the witnesses had said during these investigatory interviews.
As the government's case concluded, the defendant presented a list of six witnesses—all of whom by then had returned to Africa—whom they wished to impeach by calling FBI agents to testify to alleged prior inconsistent statements that appeared in the FBI 302s.
Impeachment by extrinsic evidence of a prior inconsistent statement is governed by Federal Rules of Evidence 613(b)
First, the Court must determine whether the proffered statement in fact is inconsistent with the testimony sought to be impeached.
Second, the party seeking to offer extrinsic evidence of a prior inconsistent statement must have laid a proper foundation for doing so by affording (a) the witness an opportunity to explain or deny the prior inconsistent statement and (b) the opposite party an opportunity to question the witness about it.
Third, the extrinsic evidence of the prior inconsistent statement must be competent and otherwise admissible.
Fourth, the impeachment by prior inconsistent statement must relate to a material rather than a collateral matter.
Finally, even if all of these requirements have been satisfied, the trial court nevertheless may exclude the extrinsic evidence under Rule 403 on an appropriate finding.
With respect to each of the four witnesses at issue here, the defendant made the following proffer: (1) the witness said X on the stand, (2) an FBI 302 reported that the witness had said "not X" on a previous occasion, and (3) the defendant proposed to call an FBI agent who signed the 302 to testify that the witness had said "not X" during an interview at which the agent had been present.
In each case, the FBI agents spoke English and not Swahili, and the witnesses spoke Swahili and not English. In each case, therefore, a Kenyan or Tanzanian law enforcement official was used as an interpreter.
To be sure, our Circuit in some cases has upheld the receipt in evidence, over hearsay objection, of testimony as to prior statements made in other languages, usually by defendants. The Court on occasion has used sweeping language to the effect that the interpreter "is no more than a language conduit."
None of these circumstances applied here. The statements all were offered for their truth. Ghailani was not present when the witnesses were questioned. He offered no persuasive evidence that the Kenyan and Tanzanian police officers who translated for the FBI were agents of the declarants. Moreover, in this case there was reason to question whether they even purported to serve as mere "language conduits" and the accuracy of the translations.
As an initial matter, these translators were law enforcement officers of other nations investigating crimes committed in their own jurisdictions. They were not functionaries of the FBI. In the absence of their testimony, there was no basis for concluding that they merely translated FBI questions from English to Swahili and the witnesses' responses from Swahili to English. It is equally or perhaps more plausible that they at least in part conducted their own interrogations and informed the FBI as to what they perceived to have been the substance and import of the witnesses' statements. Thus, the Court was not satisfied that they were purely mechanistic converters of Swahili into English and vice versa.
In this context, the interpreters could not properly have been considered mere "language conduits." No other circumstance that has grounded receipt over hearsay objection of statements allegedly made through interpreters was present. Moreover, the FBI agents were competent to testify only to what they were told in English by the interpreters and not to what the witnesses said to the interpreters in Swahili. Accordingly, the FBI agents' testimony as to the witnesses' statements would have been inadmissible even if all other requirements for impeachment by extrinsic evidence of prior inconsistent statement had been satisfied.
This alone warranted exclusion of all of the FBI testimony the defense proposed to offer. In any case, additional considerations specific to each government witness independently would have required that the proposed testimony be precluded.
Juma worked as a vehicle broker in Dar es Salaam. He testified on direct, through an interpreter, that he was approached shortly before the bombings by two individuals whom he spoke of as Ahmed the Taller and Ahmed the Shorter. The parties stipulated that Juma previously had identified known photographs of Sheikh Swedan and of the defendant, Ghailani, as Ahmed the Taller and Ahmed the Shorter,
Juma testified that he brokered the sale of the Nissan Atlas truck that was shown by other proof to have been turned into a truck bomb and detonated at the U.S. Embassy from one Sultan to Ghailani, whom he had known previously, and Swedan.
On cross-examination, Ghailani sought to elicit admissions that the transaction was primarily between Sultan and Swedan and that it was Swedan who had paid Juma the commission on the deal. Juma, however, insisted that the deal was primarily with Ghailani and that Ghailani rather than Swedan had paid the commission.
Counsel then elicited a statement to the effect that Swedan had agreed to pay for the replacement of the truck's alternator before the sale would be completed, but a moment later Juma said that Swedan had agreed to buy the vehicle before the alternator was replaced.
This brings us to the specific testimony that the defense contended laid the foundation for the attempted impeachment:
GX 35242-15, an FBI 302 dated November 30, 1998, is an FBI memorandum of an interview conducted at a Tanzanian National Police ("TNP") office in the presence of TNP and Tanzanian intelligence personnel and the FBI during which a TNP inspector acted as interpreter. The 302 contains the following:
Defense counsel had the interpreter translate the foregoing lines for the witness and asked if it refreshed his recollection that, in late November 1998, Juma had told the FBI in substance that Swedan
On the defendant's case, counsel proposed to call one of the FBI agents who had signed GX 35242-15 to impeach Juma's testimony—specifically, the testimony at page 367, lines 3-7 quoted above. The Court sustained the objection. It now states its reasons for doing so more fully than it did on the record at the time.
First, in addition to the dispositive hearsay problem previously described, there was no clear inconsistency between the witness's statement at Tr. 367:3-7, which is the statement sought to be impeached, and the proposed extrinsic evidence, viz. the FBI agent's testimony that Juma had said what was recorded in GX 35242-15.
In the passage upon which defendant relies, Juma was asked whether he remembered having made a particular statement to the FBI in November 1998. He responded, "That's not true." It therefore was not clear whether the substance of his testimony was that it was not true that (1) he remembered making such a statement, (2) he remembered making such a statement in November 1998, as opposed to at some other time, (3) he remembered making such a statement in November 1998 to the FBI, as opposed perhaps from making it to the TNP with whom he actually spoke in Swahili, or (4) his interaction with Swedan had occurred as GX 35242-15 reported it, perhaps among other possibilities. The ambiguities caused by the form of the question and the failure to pursue the answer left it unclear whether there was any variance between the direct testimony and the statement Ghailani sought to introduce, let alone any variance that would have had "a reasonable bearing on credibility."
There would have been a similar problem even if one went beyond the specific statement the defendant identified as the testimony sought to be impeached. The proposed extrinsic evidence would have been to the effect that Swedan had agreed to replace the alternator prior to the sale and that the sale was contingent on the truck working following the replacement. On cross-examination, however, Juma admitted that Swedan "agreed to pay for the replacement of the alternator before the sale would be completed."
There was a third entirely independent basis for excluding this evidence. Even if the preceding points somehow could be put aside, the proposed impeachment all would have gone to the question whether Swedan agreed to pay for the alternator "even before the completion of the sale itself." But the fundamental point of Juma's testimony was that Ghailani was involved in the purchase of the truck and that he was an active participant—indeed, so much so that he actually paid for the truck—as opposed to an innocent bystander or simply Swedan's companion. The question whether Swedan, whom Juma agreed paid for the alternator, agreed to do so before the sale was agreed upon or at some later point was collateral.
Accordingly, the proposed extrinsic evidence was precluded.
The background to the next issue is that Juma testified on direct that Ghailani, on the occasion on which he paid Sultan the money for the Nissan Atlas truck, told Juma not to tell one Rashid Saleh, who lived in the same house as did Ghailani, that Ghailani had bought the truck.
The testimony that the defense sought to impeach came on cross-examination and was as follows:
Defense counsel showed Juma GX 35242-12, an FBI 302 dated October 11, 1998, and asked whether it refreshed his recollection. The witness then said that he did not remember the date, but that he thought that he had "told them that before this date."
Although the point is not clear from Court Exhibit I, in which the defendant set forth his position, it became clear in argument that the defendant's position was that Juma's first mention to the FBI of Ghailani's request that Juma not tell Rashid that Ghailani had bought the truck came in the October 10, 1998 meeting, which was Juma's third or fourth encounter with the agents.
There is no quarrel with the proposition that a witness in some circumstances may be impeached by silence. This was not such an instance. The FBI 302 reports that, on October 10, 1998, Juma made a statement consistent with his trial testimony, i.e., he told the FBI at that time of Ghailani's request. Even if he had not made such a statement before October 10, 1998, there is no evidence that could warrant the conclusion that any silence on this point in prior interviews was sufficiently unambiguous to make that prior silence inconsistent with his trial testimony.
In addition to the lack of sufficient inconsistency, this impeachment effort suffered also from the same competency-hearsay problem discussed above.
For both of these independent reasons, the proffered extrinsic evidence was precluded.
The Azzan clothing store was located in Mombasa, Kenya, and was owned by the family of Fahad, one of the individuals allegedly involved in planning and carrying
Wilson Maganga, a mechanic who plied his trade outside the Azzan store, identified a known photograph of Ghailani. He testified, through an interpreter,
On cross-examination, the defense sought to elicit from Maganga a characterization of Ghailani as an "employee who ran the shop."
In GX 35201-1, an FBI 302 of an interview with Maganga on September 28, 1998, the agent wrote that Maganga identified a photograph of Ghailani "as the employee who ran the shop." On the defendant's case, counsel proposed to call the agent to impeach Maganga's testimony that he had not previously told the FBI that Ghailani had been an employee of the Azzan store.
The Court precluded this testimony for essentially the same reasons articulated above with respect to the defendant's proffers to impeach Sleyyum Juma. As previously discussed, the proffered testimony of the FBI agent would have been inadmissible hearsay because an interpreter was used to conduct the interview memorialized in GX 35201-1. The Kenyan police inspector who interpreted during the interview could not properly be considered a mere "language conduit" or agent of the witness, and the interviewing FBI agent lacked any personal knowledge of what Maganga was asked or said during the interview. Hence, the most that the agent could have said if called as a witness was that the 302 accurately summarized what the interpreter told him Maganga had
In addition, the proposed impeaching testimony would have been collateral. As the Court explained at oral argument,
On direct, Maganga testified that the Azzan store stopped selling clothing at some point prior to the bombings but that Fahad, Swedan, Ghailani, and others continued to gather there.
Defense counsel did not ask Maganga what he meant by "closed" or otherwise seek to clarify this aspect of Maganga's testimony.
GX 35201-2 memorializes an interview with Maganga conducted via interpreter on September 28, 1998. According to that 302, Maganga "stated that the store closed approximately two days prior to the Embassy bombing, and that it has not opened since that time."
The hearsay-competency problem previously discussed—namely, that the agent was competent to testify only as to what the interpreter told him Maganga said, not what Maganga actually said—is dispositive. In addition, it is not clear that the statement attributed to Maganga in GX 35201-2 in fact is inconsistent with Maganga's testimony. Maganga testified that there came a time when the Azzan store stopped selling clothes but that Fahad, Swedan, Ghailani, and others continued to congregate at the store until a week or two before the bombings.
In any case, even if the prior statement were inconsistent and were admissible over hearsay objection, the proffered testimony would have been collateral. On direct, separate from his later testimony on cross regarding when the Azzan store closed, Maganga testified that the store stopped selling clothes in the months leading up to the bombings. In this circumstance, the question of characterization— that is, whether on the stand Maganga characterized the store as "closed" during that time period when he previously had not done so—was collateral.
Lukulu is a welder in Dar es Salaam, Tanzania. He testified on direct that he sold a number of gas tanks to two men—one shorter and one taller—whom he later identified as Ghailani and Fahad, respectively, roughly a month before the bombings. Lukulu said that he sold a total of seven tanks to the two men over the course of three transactions
On cross examination, defense counsel sought to elicit from Lukulu an acknowledgment that it had been Fahad and not Ghailani who wore the money pouch and paid for the tanks during the first transaction:
GX 35232-10 is an FBI account of interviews of Lukulu conducted via interpreter on November 16 and 17, 1998.
First, Lukulu's challenged testimony was ambiguous and not sufficiently inconsistent with the prior statements as reported in GX 35232-10. Defense counsel asked Lukulu at trial if it was true that Lukulu told the FBI in November 1998 that it was the taller of the two men who had a money pouch from which he took money to pay Lukulu. Lukulu answered, "[i]t's not true." In this context, it is not clear if Lukulu meant that it was not true that (1) he had said that to the FBI, (2) he had said it in November 1998, or (3) he ever had said that. In addition, it is unclear whether Lukulu was answering with respect only to the first transaction or to all those transactions.
Defense counsel argued that the question and answer clearly were in the context of a discussion specific to the first transaction, but the Court found it at least equally plausible that the phrasing of the question caused Lukulu to answer with respect to the whole series of transactions. If that was Lukulu's meaning, then his answer arguably was consistent with the statements recorded in the 302 indicating that both Fahad and Ghailani paid for certain of the transactions from money pouches that each wore around his waist. But counsel did not clarify the significant ambiguity in Lukulu's answer. As a result, the defense failed to show that Lukulu's testimony was inconsistent with the statements contained in the FBI 302. Moreover, the defense allowed Lukulu to return to Africa without requesting that he remain available for further questioning or indicating its intention to impeach this aspect of his testimony. It therefore would have been inappropriate to allow the proffered impeachment in light of the fact that the witness no longer was available.
Second, any inconsistency as to whether it was Ghailani or Fahad who paid for the gas tanks in the first transaction was collateral in light of Lukulu's testimony, consistent with the 302, that Ghailani was present for all three transactions and that it was Ghailani who paid for the second and third transactions from a money-pouch worn around his waist. In this circumstance, whether Ghailani played the leading role in all three of the transactions in which he was involved, as opposed to only two of the three, was collateral and not a proper matter on which to impeach Lukulu by extrinsic evidence.
Kasim Juma Abdalla, also known as "Teacher," lived with Ghailani and Rashid in Dar es Salaam from 1996 until Ghailani's departure immediately prior to the embassy bombings. Teacher testified on direct that Ghailani came to him to say goodbye about six days before the bombings and told Teacher that he was leaving the next day for Germany, by way of Nairobi, to look for work.
On cross examination, defense counsel sought to show that Ghailani in fact had told Teacher that he was going to Yemen, as other witnesses testified Ghailani had
Court Exhibit I identifies GX 35219-1 and GX 35219-6 as FBI 302s said to contain prior statements by Teacher inconsistent with the above-quoted testimony. At argument, counsel directed the Court also to GX 35219-7—handwritten notes from an interview on October 2, 1998, seemingly the same interview memorialized in GX 35219-6—as another example of a prior inconsistent statement by Teacher on this subject.
All three FBI documents report that Teacher said in September and October of 1998 that Ghailani had told Teacher in early August of that year that he was leaving for "Yemen or Germany."
The Court did not rule on this proffer at argument but expressed the hope that the parties might resolve the matter by stipulation.
Even had it not been abandoned, the Court would have sustained the government's objection with respect to this proffer because the proposed impeaching testimony would have been both inadmissible hearsay and collateral. As previously discussed, the agents Ghailani proposed to call would have been competent to testify only as to what the interpreter told them Teacher said during the interviews, not what Teacher actually said. Moreover, in light of (1) two other witnesses' testimony that Ghailani told them he was going to Yemen, (2) substantial evidence that Ghailani in fact went to Pakistan, and (3) the lack of any evidence that he went either to Yemen or to Germany, the question of which specific lie Ghailani told Teacher— that is, which specific false destination Ghailani gave Teacher—was collateral. Accordingly, even if the defendant's proffer had not been abandoned, the Court would have precluded the proffered extrinsic evidence of the alleged prior inconsistent statements by Teacher.
For the reasons described above, the defendant was precluded from introducing the proffered extrinsic evidence to impeach the four government witnesses discussed above.
SO ORDERED.
The New York rule is similar although perhaps not identical. Testimony as to an interpreter's account of declarant's statement in a language not understood by the witness is admissible over hearsay objection only if (1) the interpreter was selected "by common consent of the parties" and thus became the declarant's agent, or (2) "the interpreter had verified the correctness of his interpretation." People v. Chin Sing, 242 N.Y. 419, 421-23, 152 N.E. 248 (1926); accord, People v. Perez, 128 Misc.2d 31, 33-34, 488 N.Y.S.2d 367, 369-70 (N.Y.Sup.Ct. 1985); 58 N.Y. JUR.2D, Evidence § 313 (2010); EDITH L. FISCH, FISCH NEW YORK EVIDENCE § 874 n. 94 (2d ed. Supp. 2008); see also Gaudino v. New York City Hous. Auth., 23 A.D.2d 838, 259 N.Y.S.2d 478 (1st Dept. 1965) (testimony as to what interpreter said that plaintiff had told the interpreter in a different language inadmissible hearsay).
