Law firm client alerts on Foreign Corrupt Practices Act topics are usually rather basic – the so-called “who, what, where” regarding the development.
Which makes this recent Morrison & Foerster alert which addressed the recent dismissal in U.S. v. Rovirosa a bit unusual.
First, some background.
In December 2025, Ramon Alexandro Rovirosa Martinez was found guilty after a bizarre trial of various charges in connection with an alleged Mexican bribery scheme. (See here for the prior post).
As reported here, the trial featured no fact witnesses which led the judge to block the government from introducing most of its evidence until their closing argument.
Post-trial, Rovirosa filed a motion for a judgement of acquittal and among the reasons stated were the following:
(i) “the Government presented evidence to the jury that was either not properly admitted into evidence and/or that should not have been admitted into evidence;”
(ii) “the jury was provided with text messages to and from alleged co-conspirators that were never properly admitted into evidence, and the Government never offered evidence to satisfy any legal exception to the hearsay rule;” and
(iii) “the jury was provided with testimonial translations of text messages with no testimony by the translator, despite defense counsel’s request and objection, in violation of the Confrontation Clause.”
With that motion pending Rovirosa also filed a “Motion to Dismiss Case with Prejudice Based on the Court’s Supervisory Powers.” Among the reasons stated were the following: “the Government attorneys in this case (1) made misrepresentations to the Court and/or to the jury that willfully mispresented both the record and the legal standards; (2) failed to provide evidence to defense counsel, and (3) failed to present any witnesses at trial with actual knowledge of the facts. Even more alarming, the case was under the legal supervision of a Department of Justice supervisory attorney, who apparently allowed such conduct to occur.”
U.S. District Court Judge Kenneth Hoyt (S.D. Texas) granted the motion to dismiss and motion for acquittal. He concluded:
“After considering the relevant circumstances surrounding the government’s case, and its intended use of electronic messages between the alleged co-conspirators and the co-defendant, the Court determines that the messages are testimonial and are governed by common law and the Confrontation Clause of the Sixth Amendment. The Court finds that the messages of the coconspirators and, in particular, the co-defendant Avila, while they constitute hearsay messages, and would be admissible in a conspiracy setting, they are not automatically admissible here because, as translations, and when used to establish the case, they are testimonial. The government’s primary purpose for offering the messages was to convict Rovirosa, i.e. to prove the elements of the crimes charged in the Indictment. See Crawford, 541 U.S. at 51.
In reaching this conclusion, the Court finds that the government has not produced evidence showing that the Translators were unavailable or that Rovirosa was given an opportunity to cross-examine them prior to trial. The precedent is clear, the government had a duty to produce the Translators for cross examination.
The government turns next to the certification sequence for admissibility. It argues that Google or Yahoo and WhatsApp recorded the transmittals between Rovirosa, and between the alleged co-conspirators that were made on their own electronic devices capturing them in the regular course of their business activities. Hence, the government argues the messages are admissible under the business [records] exceptions rules. See Fed. R. Evid. 803(6). The government also argues that the Translators certified their translations under oath; and that Special Agent Varga reviewed the Translators’ translations and certified the accuracy of their translations. The Court will address these arguments, however, they are all unavailing.
Fed. R. Evid. 801(c) and (d) and 803(6), address hearsay exceptions that apply to business records or electronic messages when they are offered into evidence. Rovirosa does not argue that the translations were not properly certified by Google or others, or that the business records exception, generally, satisfies the hearsay rule exception such that out-of-court hearsay statements or documents may be admitted. Instead, he argues that, even if the federal rules of procedure or evidence are satisfied, the electronic messages must be excluded because: (a) the messages offered were translations from Spanish to English, between and among alleged co-conspirators and, as such, the Confrontations Clause prohibits admission if they are testimonial statements by a non-testifying witness. The precedent exceptions to this rule do not apply here because Rovirosa had no prior opportunity to cross-examine the witnesses.
The record shows that the government intentionally did not call as witnesses the Translators. Hence, Rovirosa was not provided an opportunity to cross-examine them prior to or during trial. Moreover, there is no evidence that the government could not have produced them. Nor is there evidence that the government made an effort to produce them. Hence, the Court concludes that Rovirosa’s right to cross-examine the Translators and the co-defendant, cannot be truncated by offering certifications, particularly since the Translators were available to the government. Moreover, Rovirosa’s right to cross-examine the Translators is not satisfied by the government’s tender of Special Agent Varga to testify that she re-examined the Translator’s translations and is of the opinion that they are accurate. To permit this type of “expert” evidence, turns on its head the science and art of proper translation considerations.
It is well accepted that Translators fall into one of two camps, those who use the pedagogic/literal format – word for word, or exercise poetic/dynamic, where the Translator seeks the pulse and tone of expressions in order to capture words and expressions. Cross-examination permits recognition of cultural sensitivity issues, specialized knowledge, and the level at which the Translator’s education and usage of the language may rest. To that add regional nuances and contextual consideration as the occasion dictates. To ignore the art and science of the translation process is to render cross-examination of the Translators, useless or questionable.
The jury recognized that the English translations short-circuited its review of the evidence, an evidentiary fact missed by the Court. During deliberations, the jury requested that the Court provide the Spanish messages during deliberations. The Court could not provide the Spanish messages because they had not been offered into evidence by the government. This failing by the government becomes more poignant when considered in the light of Rovirosa’s complaint that the government failed to produce forensic copies of the Spanish messages taken from both defendants’ electronic devices.
The government promised to produce the screen shots on at least two occasions. On September 26 and October 1, 2025, Department of Justice Attorney, Bennett Starnes, promised the materials. The materials were never produced, and this failing is also fatal to the government’s case.”
In conclusion, Judge Hoyt stated:
“Based on the Court’s findings and conclusions, the Court GRANTS the defendant Rovirosa’s motion to dismiss the Indictment pursuant to Fed. R. Crim. Pro. 29(c); alternatively, to ACQUIT him of all charges based on lack of evidence to support his conviction in violation of the Confrontation Clause of the Sixth Amendment. He is ORDERED released, forthwith.”
Among the authors of the Morrison & Foerster alert is former DOJ FCPA attorneys Charles Duross and James Koukios. In pertinent part, the alert states:
“This ruling appears open to challenge on appeal. First, the emails themselves should be non-hearsay under Federal Rule of Evidence 801(d)(2) because they were offered against the defendant and were either statements of the defendant or statements of the defendant’s co-conspirators made during and in furtherance of the conspiracy. Second, the usual procedure for disputed translations is to allow both sides to submit their own translations to the jury. Third, to the extent that it believed that testimony from the government’s translators was nevertheless necessary, the court could have either required such testimony during the trial or ordered a new trial during which such testimony could be elicited; an acquittal may be viewed as an overly severe outcome under the circumstances. Even if not reversed, the order relates simply to an evidentiary issue and does not implicate any substantive FCPA issues. (The same judge was reversed in February 2023 for dismissing FCPA charges in another case)”
