Opinion
Case No. 8:03-cr-77-T-30TBM
April 16, 2004
REPORT AND RECOMMENDATION
THIS MATTER is before the court on Defendant Ghassan Ballut's Ex Parte Motion for Allocation of Funds under the Criminal Justice Act to Compensate Arabic and Hebrew Interpreters of Discovery (Doc. 463) and Defendant Ghassan Ballut's Ex Parte Motion to Amend Order Allocating C.J.A. Funds to Compensate Arabic and Hebrew Interpreters of Discovery (Doc. 501).
The court has previously determined that Defendant Ghassan Ballut is financially unable to obtain adequate representation in this prosecution and is entitled to court-appointed counsel and other assistance pursuant to the C.J.A. 18 U.S.C. § 3006A. Defendant's counsel, Bruce Howie, has filed two motions regarding the authorization of funds under the C.J.A. for payment of Arabic and Hebrew interpreters and transcribers, which is alleged to be necessary for his preparation and an adequate defense. In principle, such assistance is available to indigent defendants under the C.J.A. See 18 U.S.C. § 3006A(e). By his initial motion (Doc. 463), Mr. Howie essentially repackages a proposal for such interpreter services originally fashioned by the Federal Defender, who represents a co-defendant in this prosecution. At its bottom-line, counsel is seeking $539,000 in C.J.A. funds for some fourteen interpreters and transcribers. As envisioned by Mr. Howie, there are three areas of discovery in which these interpreters are needed. The first area includes the 800 hours of intercepted communications that the prosecution has deemed pertinent. The second area is the remaining thousands of hours of intercepted communications that counsel urges need to be "surveyed." The third area includes all the tangible documents and evidence that is in Arabic or Hebrew.
Previously, I have described the case and the discovery as follows. The 121-page Indictment accuses the Defendants and others in a total of 50 counts. The allegations include conspiracy to commit racketeering in violation of 18 U.S.C. § 1962; conspiracy to murder, maim or injure persons outside the United States, contrary to 18 U.S.C. § 1956; conspiracy to provide material support to designated terrorists organizations, contrary to 18 U.S.C. § 2399B; conspiracy to make and receive contributions of funds to or for the benefit of specially designated terrorist organizations, contrary to 50 U.S.C. § 1701 et seq., 18 U.S.C. § 371; and travel in interstate or foreign commerce or use of the mail or other facility of interstate or foreign commerce with intent to commit crimes of violence or to promote and carry on specified unlawful activity, in violation of 18 U.S.C. § 1952. The racketeering conspiracy alleged in Count One of the Indictment alleges criminal activity beginning in about 1984 and continuing to the date of the Indictment in February 2003. The volume of Rule 16 discovery is exceptional, containing as it does, thousands of hours of intercepted communications and thousands of pages of documents and other tangible exhibits. Discovery is complicated by the fact that most of the intercepted conversations and much of the tangible discovery is in Arabic or Hebrew and must be interpreted before counsel may use it effectively in these proceedings.
The FPD's proposed budget, at least in this regard, was substantially rejected by the Federal Defender's program budget committee. It appears that the FPD has retained the services of one Arabic interpreter for this case.
The Government actually contends that only about two hundred hours of intercepted communications are pertinent to its prosecution. However, in my view, a larger body of intercepted communications appear pertinent to the Defendants' inquiry. As a result, I have required the Government to turn over English language summaries of these communications made by FISA interpreters. In response, the Government has turned over twenty-nine thousand pages of such material.
A hearing on this and several discovery motions was conducted on March 10, 2004. From the hearing, it appeared that all defense counsel are cooperating on discovery, all Defendants are fluent in Arabic and have access to the material, the FPD has an interpreter and an Arabic speaking attorney working on the discovery, and Defendants Al-Arian and Hammoudeh, who are in custody, are being provided access to the intercepted communications and other discovery. In consideration of the matters presented at the hearing, the court advised Mr. Howie that he should narrow the scope of his request and suggested that Mr. Ballut should locate up to two Arabic interpreters and one Hebrew interpreter to assist in his defense. Counsel was directed to propose a budget for the hiring of such assistance. As a result, Mr. Howie has filed the second motion (Doc. 501).
These two Arabic interpreters, along with the FPD's interpreter, could cover each of the three areas described by counsel as necessary for review. The Hebrew interpreter would provide assistance in discovery review for all the Defendants.
By this motion, counsel has contacted certain professional interpreter agencies who advise that their services can be obtained at an hourly rate ranging from $40.00 to $47.50 per hour. Additionally, it is suggested that certain preparatory work is necessary to organize the material for the interpreters' review and that such work would be billed at a rate of $35.00 per hour. The estimate is that one hour of recorded material will take up to fifteen hours of an interpreter's time. Thus, counsel seeks authorization to retain the services of interpreters at an hourly rate up to $47.50 for the period of time necessary to complete the stated tasks.
The contract rate paid by this court for certified and professionally qualified interpreter services is $329.00 for a full day and $178.00 for a half day. The rate for less qualified "language skilled interpreters" is $156.00 for a full day and $86.00 for a half day. A half day consists of four hours or less. By comparison, the rates requested by the Defendant are fairly in line with the customary rates paid by the court.
Upon consideration, I conclude that Mr. Ballut is entitled to the assistance requested. Although counsel does not provide specific information about the interpreters he wishes to hire or firm cost estimates, in order to avoid further delay, I make the following recommendations to this court as well as the Eleventh Circuit representative. Given the way counsel proposes to divide up the work, and given that all the Defendants have been and continue to work together on this discovery, I conclude that the court should approve funds for two Arabic language interpreters and one Hebrew language interpreter for the Defendant's use and assistance during the remaining discovery period. The interpreters shall be paid for eight-hour workdays, five days a week, at a rate not in excess of the rate customarily paid by this court for such services. The interpreters should be required to document their progress along with every monthly billing. Unless good cause is demonstrated, the work product created by these interpreters may be shared with all Defendants. Counsel's request for transcribers should be deferred to a later date, as should the determination of whether the Defendant should have the assistance of the interpreters during the trial of this cause.
At the top daily rate of $329.00 per day, each interpreter would cost $1,645.00 per week. It is probable that the Arabic interpreters would be needed at least until the start of trial. The volume of Hebrew language material available is far less and the employ of this interpreter would be for a more limited duration.
It appears to me that the estimate of fifteen hours work for one hour of tape will likely apply to only a limited number of intercepted communications in this case if the activities of the interpreters are properly coordinated.
The court has previously authorized the Defendant's hiring of a paralegal who is available to assist the interpreters in organizing and cataloguing their work and identifying pertinent matters requiring transcription or further review by counsel.
NOTICE TO PARTIES
Failure to file written objections to the proposed findings and recommendations contained in this report within ten days from the date of its service shall bar an aggrieved party from attacking the factual findings on appeal and a de novo determination by a district judge. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; M.D. Fla. R. 6.02; see also Fed.R.Civ.P. 6; M.D. Fla. R. 4.20.