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Hasan Loses Order of Battle Appeal in Third Round

By Robyn Hagan Cain on July 31, 2012 | Last updated on March 21, 2019

Does the order of battle matter when a court is deciding whether a suspect was entitled to a court interpreter at grand jury proceedings that led to his indictment for perjury?

Not in the Tenth Circuit Court of Appeals.

In 2005, Hasan Ali Hasan was convicted after a jury trial on three counts of perjury before a grand jury. Hasan appealed the conviction, and the Tenth Circuit remanded the case, concluding that Hasan may not have been able to communicate effectively in English in violation of the Court Interpreters Act.

The Tenth Circuit Court of Appeals instructed the district court to make findings related to Hasan's comparative ability to understand the grand jury proceedings.

After remand, Hasan again appealed, this time arguing the court had not adequately followed the directions spelled out in Tenth Circuit's Hasan I ruling. Once again, the Tenth Circuit agreed, leading to a second remand for more specific findings.

After the second remand, the district court found that Hasan could sufficiently comprehend and communicate in English at the grand jury proceedings, and that whatever linguistic limitations he had were not so great as to make the proceedings fundamentally unfair.

Hasan appealed a third time, questioning whether the district court's findings and conclusions satisfied the appellate courts directions from the previous remands. This time, the Tenth Circuit affirmed the district court's ruling.

In Hasan II, the Tenth Circuit asked the district court to determine: (1) whether, at the time of the grand jury hearings, Hasan spoke only or primarily a language other than the English language; and (2) if Hasan's primary language wasn't English, to determine whether the lack of an interpreter inhibited his comprehension or communication to make the grand jury hearings fundamentally unfair.

Hasan argued that the directive wasn't followed because the district court skipped the first step analysis. While Hasan may technically be correct, the Tenth Circuit Court of Appeals agreed with the government that, by moving onto the second step, the district court implicitly accepted that the first step had been met

The appellate court noted, "There was no error in the district court's determination. No talismanic quality attaches to a rigid order of battle. By moving on to the second step, the district court was clearly signaling that it concluded either Hasan spoke a primary language other than English or assumed he did."

Here, despite its silence on the first step, the Tenth Circuit found that the district court understood the two step assignment, and adequately addressed both of the required findings to determine whether Hasan was entitled to a court interpreter.

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