BARRY J. PORTMAN
Federal Public Defender
Assistant Federal Public
Defender
450 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 436-7700
Counsel for Defendant XXX
XXX
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA, Plaintiff, v. XXX XXX, Defendant.
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No. CR-xx-xxxx-xxx Date: May 30, 2001 Time: 2:30 p.m. Judge: Hon. Maxine Chesney |
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TO: ROBERT MUELLER, UNITED
STATES ATTORNEY, AND DAVID HALL, ASSISTANT UNITED STATES ATTORNEY:
Please take notice that on Tuesday, May 30,
2001, at 2:30 p.m. or as soon thereafter as this matter may be heard, defendant
XXX XXX will and hereby does move to suppress all statements made by him on or
about February 7, 2000. This motion will be and is based on the following
memorandum of points and authorities, the pleadings filed in this action, all
applicable constitutional, case and statutory authority, and such other
evidence and argument as the court may take notice.
MEMORANDUM OF POINTS AND
AUTHORITIES
INTRODUCTION
XXX XXX is a 21-year old
native of the Philippines who is charged with possession of stolen mail and
conspiracy. Mr. XXX XXX speaks
Tagalog. On February 7, 2000, while in
custody, Mr. XXX XXX was interviewed in English by a United States Postal
Inspector (the Aagent@), without first being read his Miranda rights in
Tagalog, and without the benefit of counsel.
Mr. XXX XXX has difficulty understanding English, particularly in
stressful situations. He did not
understand that he had rights, and he did not understand that he was waiving
them. Mr. XXX XXX therefore seeks to
suppress all statements made to the agent because the interview violated his
rights under the Fifth and Sixth Amendments to the United States Constitution.
STATEMENT
OF FACTS
I. XXX XXX
XXX XXX came to the United
States from the Philippines on or about April 18, 1996, when he was 14 years
old. Declaration of XXX XXX (AXXX XXX
Decl.@) &2. (A true and correct copy of Mr. XXX XXX=s declaration is
attached hereto as Exhibit A). He
enrolled in San Francisco=s Newcomer High School as a sophomore. Id. &3. Because he was not a native speaker of English,
the school district required that he take classes in English as a Second
Language (AESL@) Id. &3. During the 1996 fall semester he received a
C in ESL language development, a B in ESL reading, and a C in ESL lab. Id.&4 and Exhibit B (A true and
correct copy of Mr. XXX XXX=s high school transcript is attached hereto as
Exhibit B). During the 1997 spring
semester he received an F in ESL language development, an F in ESL reading, and
an F in ESL Lab. Id. &4;
Exh. B. While in school, he would often
ask other students who spoke Tagalog to help him. Id. &4. Or, he
would copy the assignment from the blackboard and take it home to his older
sister, who would translate for him. Id.
&4. The following year, his junior
year, Mr. XXX XXX transferred to Galileo High School. Id. &5. He
dropped out almost immediately after the beginning of the school year, and has
not taken any English classes since spring 1997. Id. &5.
Mr. XXX XXX has only a
limited comprehension of the English language and concepts in the English
language. XXX XXX Decl. &6. He does not currently speak English with
either friends or family. Id. &6. In fact, he has never spoken English in
his community of friends and family. Id.&6. Despite
his lack of English skills, Mr. XXX XXX has had two jobs in this country. XXX XXX Decl. & 7. The first was as a cook at Burger King in
San Francisco. Id. &7. Although the job did not require much
communication, when he did speak he was often asked to repeat himself. Id.& 7. He also did not always understand what
his co-workers were saying to him. Id.&7. Mr. XXX XXX does not recall for sure, but thinks he worked in
this job for approximately two months. Id.&
7.
Mr. XXX XXX=s second job was
also with Burger King, as a cashier in Daly City. XXX XXX Decl. &8.
Mr. XXX XXX believes that he worked as a cashier for about one month. Id. &8. Even in that short time period, however,
customers often asked him to repeat himself because they had not understood
him. Id.&8. In addition, Mr. XXX XXX was repeatedly
unable to understand what customers were saying to him, and he had to seek
assistance from a Tagalog-speaking co-worker or the manager (who spoke Tagalog)
to take the customer=s order. Id.&8. Mr. XXX XXX believes that he had both these
jobs sometime in 1998 or 1999. Id.
&8.[1]
II. Apprehension and Postal Inspector Actions on February 7, 2000
On February 7, 2000, XXX XXX
was arrested near the scene of a vehicle accident in Hillsborough,
California. He was brought to the
Hillsborough Police Department, where he was placed in a room with a closed
door. XXX XXX Decl. &10. Sometime thereafter, while in custody, Mr.
XXX XXX was interviewed by Postal Inspector Jeffrey Fitch and Postal Police
Sergeant Luis Altamirano. (A true and
correct copy of Inspector Fitch=s Memorandum of Interview is Attached hereto as
Exhibit C). Prior to the interview he
was handed a preprinted form entitled AWarning and Waiver of Rights@. XXX XXX Decl. &11. (A true and correct copy of the Warning and
Waiver of Rights is attached hereto as Exhibit D).
The Warning and Waiver of
Rights has a blank for date and time at the top of the form, a blank for date,
time and signature under the acknowledgment of rights, and a blank for date,
time and signature under the waiver of rights.
Exh. D. The entire form is in
English. Exh. D.
Mr. XXX XXX was presented
with the waiver form by the agent. XXX
XXX Decl. &11. Mr. XXX XXX believed
he was locked in the room with the agent, and was very scared. Id. &10. Mr. XXX XXX looked at the document, and
told the agent that he did not understand what was written on it. Id. &12. He asked the agent to tell him what the
document meant. Id. &12. The agent read the document once straight
through. Id. &12. He read extremely quickly. Id. &12. Although Mr. XXX XXX recognized some of the
words used by the agent, he did not understand what the agent meant. Id. &12. The agent then asked him some questions, and
Mr. XXX XXX said Ayes@ because that seemed like what the agent wanted him to
say. Id. &12. The agent pointed to the document and told
Mr. XXX XXX to sign it, so he did. Id. &12.
The waiver form -- which,
except for the signature, is not in Mr. XXX XXX=s handwriting -- makes clear
that Mr. XXX XXX did not knowingly waive his rights. The top of the waiver form shows that it was given to Mr. XXX
XXX at 2:25 p.m., the start of the interview.
Exh. D and Exh. C. Halfway down
the form, under the acknowledgment of rights, Mr. XXX XXX=s signature appears
alongside the next time entry - also 2:25 p.m.
Exh. D. Finally, at the bottom,
Mr. XXX XXX=s signature appears under the waiver of rights -- again at 2:25
p.m. Exh. D. The entire process took
one minute. In contrast, the form signed
by Mr. XXX XXX=s alleged co-conspirator, XXX XXX, reflects that he was given
the form at 1:45 p.m., understood his rights at 1:50 p.m., and waived his
rights at 1:52 p.m. (A true and correct
copy of Mr. XXX XXX=s waiver form is attached hereto as Exhibit E).
Mr. XXX XXX=s English
language difficulties become even more apparent as the interview
progressed. Once during the interview
Mr. XXX XXX told the agent something like AI don=t understand what you say, can
you repeat that because I don=t speak English that much.@ XXX XXX Decl. &16. He also had to ask the agent to repeat
himself a couple of times, because he had not understood what the agent was
saying. Id. &16. In spite of
these warnings, the agent made no further attempt to establish that Mr. XXX XXX
had knowingly and intelligently waived his rights.
ARGUMENT
I. The Government Bears The Burden Of Showing That Mr. XXX XXX=s
Waiver Was
Knowing And Intelligent
AThe prosecution bears the
burden of proving by a preponderance of the evidence that a defendant knowingly
and intelligently waived his Miranda rights.@ United States v. Garibay, 143 F.3d 534, 536 (9th Cir.
1998). The government=s burden is
great, and the court must Aindulge every reasonable presumption against waiver
of fundamental constitutional rights.@ United
States v. Heldt, 745 F.2d 1275, 1277 (9th Cir. 1984), cited in Garibay,
143 F.3d at 536. In fact, the
government must show not only that the defendant was aware of the nature of the
right being abandoned, but also that the defendant understood the consequences
of the decision to abandon it. Moran
v. Burbine, 475 U.S. 412, 421 (1986), cited in Garibay, 143 F.3d at
536.
II. Mr. XXX XXX Did Not Knowingly and Intelligently Waive His
Miranda Rights
Miranda warnings are more than mere
talismanic incantations, murmured to avoid the specter of future suppression
motions. Rather, they embody
fundamental rights that cannot be waived if not understood. Accordingly, A[f]or inculpatory statements
made by a defendant during custodial interrogation to be admissible in
evidence, the defendant=s <waiver of Miranda rights must be
voluntary, knowing, and intelligent.=@ United
States v. Garibay, 143 F.3d 534, 536 (9th Cir. 1998) (quoting United
States v. Binder, 769 F.2d 595, 599 (9th Cir. 1985)).
The government=s great burden in proving a valid waiver is
even more challenging when there are language difficulties between the
inquisitor and defendant. AOne
precondition for a voluntary custodial confession is a voluntary waiver of Miranda
rights, and language difficulties may impair the ability of a person in custody
to waive these rights in a free and aware manner.@ United States v. Heredia-Fernandez, 756 F.2d 1412, 1415
(9th Cir. 1985).
In Garibay, an
English-speaking Customs Agent asked a Spanish-speaking suspect if he
understood English. Garibay, 143 F.3d
at 536. The suspect replied, Ayes,@
after which the agent read the suspect=s constitutional rights in English.
Id. The defendant made
incriminating statements during the subsequent interview. Id.
At trial, he moved to suppress these statements because of his
limited-English skills and his low mental capacity. Id.
In examining the validity of
the waiver, the Court in Garibay considered Aany language difficulties
encountered by the defendant during custodial interrogation.@ Id. at 537. The Court also considered the defendant=s mental capacity,
and a litany of other factors in the Atotality of circumstances@ test:
(1) [W]hether the defendant signed a written waiver;
(2) whether the defendant was advised of his rights in his native
tongue;
(3) whether the defendant appeared to understand his rights;
(4) whether the defendant had the assistance of a translator;
(5) whether the defendant=s rights were individually and
repeatedly explained to him;
(6) whether the defendant had prior experience with the criminal
justice system.
Id. at 538 (internal citations
and quotations omitted).
Each of the Garibay
factors weighs against a finding of valid waiver in this case.
A. Signed Written Waiver
Mr. XXX XXX=s signature
appears on a waiver form -- but the
document is written in English and no one made any attempt to translate it for him.
Exh. D, XXX XXX Decl. &17.
Moreover, Mr. XXX XXX told the agent that he did not understand the
document. XXX XXX Decl. &12. The fact that there is a signed waiver,
therefore, does not mean that the waiver was knowing or valid.
B. Advised of Rights In Native Tongue
Mr. XXX XXX, a
Tagalog-speaker, was not advised of his rights in his native tongue. XXX XXX Decl. &16.
C. Appearance of Understanding
Although Mr. XXX XXX
answered Ayes@ when it appeared that the agent wanted him to do so, there is no
showing that he appeared to understand his rights. In fact, Mr. XXX XXX told the agent that he did not understand
the written waiver, and, during the course of the interview, he told the agent
that he was having language difficulties. XXX XXX Decl. &12, 16.
D. Assistance of an Interpreter
The government agent did not
offer Mr. XXX XXX the assistance of an interpreter. XXX XXX Decl. &17.
E. Repeated Explanation of Rights
Although the agent spoke to
Mr. XXX XXX (in English), when he handed Mr. XXX XXX the waiver, the agent made
no attempt to repeatedly explain the import of the rights and the meaning of
the waiver. In fact, the agent read the
document only once, and he read it straight through and extremely quickly. XXX XXX Decl. &13. This reading was insufficient to overcome
the presumption against waiver.
F. Prior Experience With The Criminal Justice System
Documents provided by the
Government reflect one arrest of Mr. XXX XXX, in November 1999. (A true and correct copy of portions of the
police incident report is attached hereto as Exhibit F). Those documents, however, show that Mr. XXX
XXX was not Mirandized at the arrest. Exh. F. In any event, Mr. XXX XXX does not have the extensive criminal
history that would create a familiarity with his rights and permit the Court to
presume that he understood them. Compare
Heredia-Fernandez, 756 F.2d at 1415-16) (defendant=s eight to ten year
criminal history and fifteen prior arrests demonstrated familiarity with Miranda
warnings and supported finding of valid waiver).
III. The Court May Hold an Evidentiary Hearing to Determine Whether
Mr. XXX XXX Voluntarily, Knowingly, and Intelligently Waived His Miranda
Rights
After considering the
government=s response, should the Court determine that testimony is in conflict
or that credibility is at issue, Mr. XXX XXX requests an evidentiary hearing to
determine whether the totality of the circumstances supports a finding that he
did not validly waive his constitutional rights.
CONCLUSION
Mr. XXX XXX never understood
that he did not have to speak with the agent, and he did not understand that he
could have asked for an attorney. XXX
XXX Decl. &14. He also never
understood that he could choose whether or not to give up his rights, and he
did not know that he gave up rights when he signed the waiver form. XXX XXX Decl. &14. Morever, the totality of the circumstances
surrounding the February interview indicate that Mr. XXX XXX did not knowingly and
voluntarily waive his Miranda rights.
Mr. XXX XXX therefore respectfully requests that the Court suppress all
statements obtained in violation of these rights.
Dated: May 9, 2001
Respectfully submitted,
BARRY J. PORTMAN
Federal Public Defender
REBECCA SULLIVAN SILBERT
Assistant Federal Public
Defender
[1] Mr. XXX XXX has also worked as an aide to
his father, who is disabled. Mr. XXX
XXX and his father communicate in Tagalog.
XXX XXX Decl. &
9.
