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KO v. U.S.

December 30, 1998

KIM LONG KO, APPELLANT,
V.
UNITED STATES, APPELLEE.



APPEAL FROM THE SUPERIOR COURT, CURTIS E. VON KANN, J. [722 A2d Page 831]

Before Wagner, Chief Judge, Terry, Steadman, Schwelb, Farrell, Ruiz and Reid, Associate Judges, and Mack and KING,[fn*] Senior Judges. [fn*] Judge King was an Associate Judge of the court at the time of argument. His status changed to Senior Judge on November 23, 1998.

The opinion of the court was delivered by: Per Curiam.

This matter was decided initially in a panel decision issued on May 8, 1997, Kim Long Ko v. United States, 694 A.2d 73 (D.C. 1997). We vacated that decision on November 13, 1997, in response to the government's petition questioning part of the majority opinion regarding payment of the government's interpreters. We now reaffirm the judgment of the trial court for the reasons set forth below.

Kim Long (Peter) Ko was convicted by a jury of extortion, in violation of D.C.Code § 22-3851 (1996); threats, in violation of § 22-2307; and unlawful possession of ammunition, in violation of § 6-2361 (1995). Ko was acquitted of a number of other charges, including kidnapping while armed, two counts of assault with a deadly weapon, possession of a firearm during a crime of violence, and conspiracy. Ko's codefendants, Sun Kin (Sonny) Chan and Wai Kin (Simon) Chow, were found not guilty of all charges.

At the trial, which lasted over three weeks, fourteen different witnesses who used the Cantonese, Mandarin or Fukinese dialects testified through interpreters. Ko's principal contention on appeal is that the interpreters were not properly qualified and that some of them lacked the requisite impartiality. He points out, in particular, that several interpreters were paid by the United States Attorney's office, which was prosecuting the case against him. He claims that the asserted irregularities with respect to the use of interpreters deprived him of rights protected by the District's Interpreters for Hearing-Impaired and Non-English Speaking Persons Act of 1987 (the "Interpreter Act"), D.C.Code § 31-2701 et seq. (1993), and by the Constitution of the United States.

FACTUAL SUMMARY

In February 1992, Ko purchased the Szechuan Restaurant, a well-known Chinatown eatery, from its previous owner, Tony Cheng. Later during that year, Ko accused several employees, including in particular a waiter named Sau Wong Lam, of stealing money from him. Lam and the others vigorously denied these allegations.

According to the prosecution, Ko and persons associated with Ko contrived to force Lam to confess that he was responsible for the theft and to implicate Lam's confederates. Lam was threatened, kicked, beaten, and burned with a hot chafing dish. Lam ultimately signed a written confession, and he admitted to the theft on videotape. Lam also signed a promissory note in which he agreed to pay Ko $20,000. The charges against Ko and his codefendants arose out of their alleged involvement in the mistreatment and coercion of Lam.

The trial judge faced the challenging task of ensuring that persons whose first language is a Chinese dialect — e.g., Cantonese, [722 A2d Page 832]

Mandarin or Fukinese — could understand and be understood during a three week trial on an eleven count indictment relating to seven different serious offenses. At a pre-trial status conference on January 26, 1993, the trial judge inquired as to the need for interpreters. It became clear that more than one interpreter would be needed, at least for the Cantonese and Mandarin dialects. The government informed the trial judge that it had obtained an interpreter for its witnesses, but that one interpreter would be inadequate given the number of witnesses and defendants. The trial judge announced his intention to contact the Office of Court Interpreting Services ("Interpreter's Office"), located in the Superior Court, to seek additional interpreters. *fn1

On April 19, 1993, two interpreters engaged by the Interpreter's Office were present: Mr. Michael Yan who was certified in Mandarin but not Cantonese, and Mr. William Chan who was certified in Mandarin and Cantonese. The government told the court that the interpreter for its witnesses would be Dr. Tzeng. At the time, Dr. Tzeng had not yet arrived but reportedly was certified in Mandarin and Fukinese; the government was not sure if he spoke Cantonese. When he arrived; Dr. Tzeng indicated he spoke Fukinese and Mandarin. He pointed out that Mr. Chan was the Cantonese specialist. *fn2

Of the three defendants, only Ko and Chan spoke both Mandarin and Cantonese; Mr. Chow only spoke Cantonese. Ko and Chow had some knowledge of English. At the commencement of the trial, only one interpreter was certified in Cantonese. Despite his non-certification in Cantonese, the trial judge asked Mr. Yan whether he was "pretty comfortable in Cantonese?" Mr. Yan responded, "well, depending on the subject matter, your Honor." When the judge stated: "Well, there's no biology lessons here" and "[t]his will be pretty rudimentary stuff, I think," Mr. Yan said: "Then I can give it a try."

Because the Interpreter's Office prohibits an interpreter from translating for more than thirty to forty-five minutes without a break, the trial court discussed a rotation system which would include Dr. Tzeng, the government's interpreter. On April 20, 1993, four interpreters were available: Dr. Tzeng and Mr. Frank S. Lee, the government's interpreters; Mr. Yan and Mr. Chan. The transcript is silent as to Mr. Lee's certification. The trial judge advised the four interpreters to confer during the lunch hour to "devise mutually agreeable arrangements" for interpretation, and that "interpreting should be done in that witness' own dialect, whatever it may be."

The first confusion about interpretation arose on April 21, 1993, during the testimony of government witness Tony Cheng. When the judge inquired as to Mr. Cheng's dialect, he was told "Cantonese, I believe." The court then turned to Dr. Tzeng and Mr. Lee for interpreting services, even though neither had been certified in Cantonese. *fn3 As the discussion continued, the judge mistakenly concluded that Mr. Chan, Mr. Yan and Dr. Tzeng were all certified in Cantonese; but only Mr. Chan was certified in Cantonese. Dr. Tzeng had made it clear he spoke only "a little" Cantonese. Later, despite the fact that Dr. Tzeng's certifications had never been placed ...


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