BARRY J

BARRY J. PORTMAN

Federal Public Defender

MARTIN ANTONIO SABELLI

Assistant Federal Public Defender

450 Golden Gate Avenue

San Francisco, CA 94102

Telephone: (415) 436-7700

Counsel for Defendant xx

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

XXX XXX faces an indictment alleging an attempt to broker the sale of a fraudulent bank guarantee ostensibly issued by an Indonesian Bank in the amount of fifty million dollars -- an amount which would trigger severe criminal penalties. After his arrest on these charges, XXX XXX made several statements to the investigating agents which the government characterizes as incriminating. XXX XXX now seeks to suppress his statements as obtained in violation of his Fifth and Sixth Amendment rights. XXX XXX submits that he did not validly waive his right to remain silent and request an attorney. He further submits that the arresting agents -- given his weak proficiency in English and the severity of the criminal penalties triggered by the dollar amount -- should have taken minimal steps to ensure that his Miranda waiver was knowing and voluntary.

STATEMENT OF FACTS[1]

On June 24, 1996, agents arrested Mr. XXX XXX and his co-defendant XXX XXX at the Comfort Inn in Redwood City. Agents arrested XXX XXX at gunpoint and, on that same day, interviewed XXX XXX. XXX XXX was advised of his rights in English and agreed to "waive" them. XXX XXX then spoke to the agents openly about his business in the United States including his participation in brokering the sale of the bank guarantee at issue in this case.

ARGUMENT

I. DEFENDANT DID NOT VALIDLY WAIVE HIS MIRANDA RIGHTS

Under Miranda v. Arizona, 384 U.S. 436, 475 (1966), a defendant may waive his constitutional rights only if the "waiver is made voluntarily, knowingly and intelligently." The Supreme Court in Miranda stated that where an interrogation is conducted without the presence of an attorney and a statement is taken,

a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel . . . . This Court has always set high standards of proof for the waiver of Constitutional rights, Johnson v. Zerbst, 304 U.S. 458 (1938), and we re-assert these standards as applied to in-custody interrogation.

Miranda v. Arizona, 384 U.S. 436, 475 (1966). In Moran v. Burbine, 475 U.S. 412, 421 (1986), the Supreme Court reaffirmed the high level of proof required to demonstrate a free and voluntary waiver of Miranda rights and set out two distinct inquiries:

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness, both of the nature of the right to be abandoned and consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude the Miranda rights have been waived.

Moran v. Burbine, 475 U.S. 412, 421 (1986).

In reviewing the totality of the circumstances, the Ninth Circuit has recognized that language and cultural difficulties may impair the ability of a person in custody to waive his Miranda rights in a free and aware manner. United States v. Heredia-Fernández, 756 F.2d 1412, 1415 (9th Cir. 1985). Thus, any language difficulties encountered by a defendant must be considered in determining the existence of a valid waiver. United States v. Bernard S., 795 F.2d 749, 751 (9th Cir. 1986). In addition, the Ninth Circuit has ruled that a presumption against waiver of one's Miranda rights exists, such that the prosecutor has the burden of showing a valid waiver. Id.

In a recent case, the Ninth Circuit ruled that a bilingual defendant's Miranda waiver was knowing and voluntary only after the interrogating officer had (1) repeatedly read the Miranda warnings in both Spanish and English, (2) provided the defendant a card with the Miranda warnings printed in written form in Spanish, as well as English, (3) required defendant to sign a card containing the waiver of rights, which was also translated to him, and (4) obtained consistent statements by the defendant on a few occasions, to the effect that he understood his rights. Villafuerte v. Lewis, 75 F.3d 1330, 1341 (9th Cir. 1996).

In other cases as well, the Ninth Circuit has relied upon the existence of additional steps taken by the interrogating officer before ruling that a non-English speaking defendant had knowingly waived his rights. See, e.g., United States v. Martínez, 588 F.2d 1227, 1234 (9th Cir. 1978)(defendant signed a written Spanish waiver form which contained warnings in Spanish); United States v. Heredia-Fernández, 756 F.2d 1412, 1415 (9th Cir. 1985)(defendant read and signed form waiving his rights, later stated that he understood his rights and did not need them read again, and fifteen prior arrests made it likely he was familiar with the Miranda process); United States v Bautista-Avila, 6 F.3d 1360, 1365 (9th Cir. 1993)(defendant was read his rights and given a printed form which he signed, and then stated that he understood his rights but was nonetheless willing to speak about his involvement in the offense).

Indeed, in all of these cases, there was at least a written waiver before questions were asked. By failing to present XXX XXX with a written form containing his Miranda rights listed in his native tongue, the government investigators bypassed an important safeguard in ensuring a knowing and voluntary waiver. United States v. González, 749 F.2d 1329, 1336 (9th Cir. 1984) ("even if [defendant] spoke very poor English, the written Spanish would have conveyed to appellant a sufficient understanding of his rights"). This mistake was compounded by the apparent failure to require defendant to sign any acknowledgment form evincing an understanding of his rights. A "written waiver of one's Miranda rights is 'strong' evidence that the waiver is valid." United States v. Bernard S., 795 F.2d at 753 n.4 (citing North Carolina v. Butler, 441 U.S. 369, 373 (1979)). Significantly, the agents did present XXX XXX with a printed Consent to Search form. Exhibit B. This decision reflects the agents' awareness of XXX XXX's inability to understand their spoken advisement.

Even had the officer obtained a written waiver in this case, there is still little evidence that XXX XXX actually understood his rights such that any implied waiver could be considered "knowing." In the present case, XXX XXX speaks some English, and in his interview with the agents demonstrated no understanding of American jurisprudence. Given XXX XXX's inexperience with law enforcement and unfamiliarity with the Miranda rights, and his lack of knowledge of the safeguards granted suspects in the American criminal justice system, his waiver cannot be said to have been Aknowing.@

Nor was it Avoluntary.@ XXX XXX was unfamiliar with either his rights or with the limits placed on those rights by the American justice system. He had been arrested and been subjected to the fear and indignity of having a firearm pointed at him and made to lie on the ground even though he had not offered any resistance to the arrest. XXX XXX did not understand his right to remain silent or request an attorney. He did not understand that whatever he told the agents would be used against him in the instant case.

The government should have at least taken minimal precautions to ensure that XXX XXX actually understood his rights. None of the safeguards described in other cases existed in the interrogation of XXX XXX. The absence of such precautions casts doubt as to whether a valid waiver ever occurred. For these reasons, XXX XXX's statements should be suppressed.

Given the paucity of facts in the record which would indicate that XXX XXX understood his rights, the prosecutor's burden of proving a valid waiver is far from met. Accordingly, the statements which were made by XXX XXX must be suppressed.

II. THE COURT MAY HOLD AN EVIDENTIARY HEARING TO DETERMINE

WHETHER XXX XXX VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY

WAIVED HIS MIRANDA RIGHTS

Should the Court determine, after considering the government=s response, that testimony is in conflict or that credibility is an issue, XXX XXX requests that the Court hold an evidentiary hearing to determine whether the totality of circumstances support a finding that he did not validly waive his constitutional rights.

CONCLUSION

A variety of factors indicate that defendant XXX XXX did not knowingly and voluntarily waive his Miranda rights. Given the strong presumption against a valid waiver of one=s rights, a presumption that the government cannot overcome, XXX XXX respectfully requests that the Court suppress the statements which were obtained in violation of his Miranda rights.

Dated: October 7, 1996 Respectfully submitted,

BARRY J. PORTMAN

Federal Public Defender

MARTIN ANTONIO SABELLI

Assistant Federal Public Defender

[1] The facts underlying this motion are derived from the discovery provided by the government and the Declaration of XXX XXX to be executed in open court (filed herewith).