Last month, U.S. District Court Judge Kenneth Hoyt (S.D. Texas) granted a defense motion to dismiss the criminal indictment and motion for acquittal in U.S. v. Rovirosa.
For prior posts on the case, including the bizarre trial, and post trial briefs see here, here, here, here, here, and here.
Judge Hoyt’s Memorandum and Order Dismissing the Indictment and Granting an Acquittal provided the following background.
“At pretrial proceedings, during trial and post-trial, Rovirosa asserted objections, primarily concerning his Sixth Amendment right to confront government witnesses whose testimony was necessary, he argued, to a fair trial and that was, instead offered through electronic messages. His objections focused primarily on the electronic messages between himself and Avila and between Avila and several alleged co-conspirators. These offerings, he contends violate Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620 (1968), as they involved conversations between Avila and alleged co-conspirators, and crucial Supreme Court precedent that addresses the interphase between the admission of “hearsay” statements allegedly made by Avila and co-conspirators, and the Sixth Amendment.”
“Rovirosa, therefore, contends that the electronic messages offered by the government are testimonial and, thus, are subject to the Confrontation Clause of the Sixth Amendment. In particular, he argues that the electronic messages that were translated from Spanish to English, were inadmissible because the Translators were not made available at trial for cross-examination. Further, he argues, their testimony was not offered to him prior to trial. As such, the admission of the Spanish or English translations violated the principles established in Crawford v. Washington, 541 U.S. 36 (2004) and Ohio v. Clark, 576 U.S. 237 (2015). As a result, during and at the conclusion of the government case and again after the jury verdict, Rovirosa presented a Rule 29(c)5 motion to dismiss the Indictment and acquitted him on all charges based on violations of his Sixth Amendment right to confront his accusers.”
“The government objected, then and now, to Rovirosa’s claim that a Sixth Amendment violation occurred, arguing that: (a) the electronic messages (Spanish to English translations) are to be evaluated no differently than other foreign language statements, writings, or recordings because they are hearsay in nature and communication between co-conspirators; (b) the proper procedure, the government asserts, for the admission of electronic messages is set out in United States v. Llinas, 603 F.2d 50 (5th Cir. 1979) and (c) “the translations were prepared by qualified Translators that supported their translations with certifications attesting to the truthfulness and accuracy of their translations. In addition, the government argues that the translations, were rereviewed by the case agent, Special Agent Maria Elena Varga, whom the government claims is equally, if not better, qualified then the Translators.”
Judge Hoyt 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.”
Judge Hoyt ended his decision:
“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.”
Last week, the DOJ filed the below notice of appeal.
