BARRY J

BARRY J. PORTMAN

Federal Public Defender

STEVEN G. KALAR

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

UNITED STATES OF AMERICA,

Plaintiff,

XXX XXX XXX XXX,

Defendant.

)

No. CR 00-0000 ABC

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SUPPRESS EVIDENCE

Statement of Facts[1]

On September 24, 1998, INS Officer Mario Canton interviewed Mr. XXX XXX while he was in custody in San Quentin, California. See Record of Deportable/ Inadmissable Alien, Appendix A. In response to Mr. Canton’s questions, Mr. XXX XXX completed a declaration admitting all of the elements of illegal reentry. See Advisement and Sworn Statement, Appendix B. This included his true name, his citizenship, his parents’ citizenship, his immigration status, the year of his last entry, and the place of his last deportation. See id. Officer Canton signed this written declaration as a witness to Mr. XXX XXX’s answers. Id.

There was no written advisement that Mr. XXX XXX was entitled to speak to his consulate, nor was there an oral advisement to that effect. See id. at page 1 of 5; see also Decl. of XXX XXX XXX XXX at 2, Appendix C.

The INS agent who spoke to Mr. XXX XXX during the interview did not speak Spanish well. XXX XXX Decl. at 1, Appendix C. Mr. XXX XXX does not speak English well, and does not read Spanish well. Id. He has never completed high school, and had not attended school in the United States. Id. The INS agent who interviewed Mr. XXX XXX did not read him his Miranda rights in Spanish. Id. Mr. XXX XXX did not understand the Miranda rights listed on the first page of the declaration. Id.

As noted above, INS Agent Mario Canton witnessed the statement of Mr. XXX XXX in September of 1998, and prepared the Record of Deportable/ Inadmissable Alien. Also during the fall of 1998, Officer Canton was sending sexually explicit e-mails at work. See Anderson Letter to Kalar of 6/2/99, Appendix D. That fall also found the husband of a woman harassed by Canton complaining of the agent’s actions. See id.

In May of 1999, Mr. XXX XXX made his initial appearance before Magistrate Judge Spero. Mr. XXX XXX was brought before Judge Spero on an arrest warrant sworn out by INS Special Agent Rudolph A. Parayo. See Parayo Affidavit, Appendix E. Agent Parayo relied upon the custodial interview of Mr. XXX XXX in his affidavit of probable cause:

3. On September 24, 1998, the defendant was interviewed by Immigration Agent/ Enforcement Mario Canton, United States Department of Justice, Immigration and Naturalization Service, San Francisco District Office at San Quentin State Prison where he was in custody for parole violation. After being advised of his Miranda rights, the defendant, in a sworn statement, admitted that he was a citizen of Mexico, and that he was previously deported from the United States.

Id. at 2 par. 3.

As Mr. XXX XXX’s visits to the federal building began, Agent Canton’s were drawing to a close. AOn April 30, 1999, the Immigration and Naturalization Service terminated the employment of Mr. Canton effective May 5, 19999.@ See Anderson Letter, Appendix D. The agent was terminated for poor judgment and unprofessional conduct. Id.

Had Mr. XXX XXX called the Mexican Consulate when interviewed in September, he would have been advised of his right to counsel. Declaration of Rob Ultan, Appendix F. The Consul or his staff would have asked to speak to the agent interrogating Mr. XXX XXX, and would have offered to participate in the interview if an attorney was not present. Id. The Consulate emphasizes to Mexican citizens their right to remain silent if questioned by law enforcement. Id.

Discussion

Mr. XXX XXX was interviewed by law enforcement agents, in custody, without adequate advisement of his Miranda rights. His statement of September 24, 1998 and the evidence arising from that confession must accordingly be suppressed.

I. Mr. XXX XXX’s Statement Was Taken in Violation of the Fifth and Sixth Amendments, and Must Be Suppressed

The protections of Miranda have been repeated so often in film and television as to become ingrained into American pop culture:

[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to ensure the privilege against self-incrimination.

Miranda v. Arizona, 384 US 436, 444 (1966). Among these procedural safeguards are the right to an attorney, the right to remain silent, and notice that any statements given may be used against the declarant. Id.

It cannot be disputed that Mr. XXX XXX was in custody when interrogated. The government apparently intends to rely upon the results of this custodial interrogation.[2] To do so it must prove, by a preponderance of evidence, that Mr. XXX XXX validly waived his rights. See United States v. Heredia-Fernandez, 756 F.2d 1412, 1415 (9th Cir. 1985) (Voluntariness must be established by a preponderance of the evidence.) In addition to having constitutional dimensions, the admissibility of a confession is also subject to statutory constraints:

Section 3501. Admissibility of Confessions

(a) In any criminal prosecution brought by the United States . . . a confession . . . shall be admissible in evidence if voluntarily given. Before such confession is received in evidence, the trail judge shall, out of the presence of the jury, determine any issue as to voluntariness.

. . . .

(b) The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any statement could be used against him, (4) whether or not such defendant had been advised prior to assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession.

18 U.S.C. Section 3501.

A valid waiver of a defendant's Fifth Amendment rights against self-incrimination can only occur if “the waiver is made voluntarily, knowingly, and intelligently.” Miranda, 384 U.S. at 575. The Court in Miranda stated that where a custodial 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.

384 U.S. at 475.

This Court's analysis begins with a presumption against valid waiver. Itt is the government's “great” burden to overcome this presumption:

The courts must presume that a defendant did not waive his rights; the prosecution's burden is great; but in at least some of the cases waiver can be clearly inferred from the actions and words of the person interrogated.

North Carolina v. Butler, 441 U.S. 369, 373 (1979).

The government's task in meeting its great burden is complicated by the Court's responsibility to engage in every reasonable presumption against valid waiver:

To satisfy this burden, the prosecution must introduce sufficient evidence to establish that under the "totality of the circumstances," the defendant was aware of "the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986). The government's burden to make such a showing "is great," and the court will "indulge every reasonable presumption against waiver of fundamental constitutional rights." United States v. Heldt, 745 F.2d 1275, 1277 (9th Cir. 1984) (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)).

Garibay, 143 F.3d at 536-37.

Whether a waiver is knowing, intelligent, and voluntarily is inevitably a fact-driven inquiry; "A valid waiver depends upon the totality of the circumstances including the background, experience, and conduct of defendant." Butler, 441 U.S. 369, 374-75 (1979) (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).

A central inquiry in the waiver analysis is whether the person interrogated could actually understand what was being surrendered. An inability to communicate with the interrogating officer obviously bears upon that inquiry: 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.@ Heredia-Fernandez, 756 F.2d 1412, 1415. The most thoughtful and thorough analysis of the interplay between language and waiver of Fifth Amendment rights is the Ninth Circuit's relatively recent decision in United States v. Garibay, 143 F.3d 534, 536 (9th Cir. 1998).

In Garibay, an English-speaking agent asked a Spanish-speaking suspect if he understood English. 143 F.3d at 536. The suspect replied "yes," and the agent Mirandized him in English. Id. The Court found that despite responding in English and having attended high school in the United States, Garibay did not have a sufficient command of English to knowingly and intelligently waive his rights. See id. at 538. Garibay was also borderline retarded. See id. at 538-39. The Court concluded that Garibay's statements had to be suppressed because he did not knowingly and intelligently waive his rights. Id. at 539.

The analysis of the Court in Garibay is instructive. The Court considered a number of factors in applying the “totality of circumstances” test to determine whether a waiver was knowing and voluntary. These factors included: (1) any language difficulties encountered by the defendant during custodial interrogation, (2) the defendant's mental capacity, (3) whether the defendant signed a written waiver, (4) whether the defendant was advised of his or her rights in his or her native tongue, (5) whether the defendant appeared to understand the rights, (6) whether the defendant had the assistance of a translator, (7) whether the defendant's rights were individually and repeatedly explained, and (8) whether the defendant had prior experience with the criminal justice system. See id. at 537-38. The totality of the factors in the present case demonstrate that Mr. XXX XXX's waiver was not knowing and voluntary.

1. Ms. XXX XXX Has Language Difficulties

Mr. XXXX does not speak English well. See Appendix C. He reads some Spanish, but poorly. See id.

When interviewed at San Quentin, the agent who interrogated Mr. XXX XXX did not speak Spanish well. See id. The agent did not read Mr. XXX XXX his Miranda rights in Spanish. See id. Mr. XXX XXX did not understand that he had the Miranda rights listed on the first page of the interrogation sheet. Id.

2. Questions Exist Regarding the Written Waiver Form

Mr. XXX XXX remembers signing the final page of the written confession, but does not remember writing “Si” in the waiver acknowledgments on the first page. See below, Appendix B at 1.

When the “si's” on the first acknowledgment page are compared to those admittedly written by Mr. XXX XXX later in the confession, the difference is marked. See left; id. at 2.

It appears that an agent--presumably Officer Canton--wrote at least some of the information on the first page of the written advisement form. For example, note the date scrawled on the final page of the confession by Mr. XXX XXX. See left, id. at 5.

Compare that writing with the date and time written on the first page of the written advisement. See below, id. at 1.

The date and time written on the first page is quite different, much neater, and uses slashes to separate the numbers. The date, (notably the time is omitted), on the last page is sloppy, has no slashes, and little resembles the writing beneath the Miranda waivers.

An evidentiary hearing is appropriate to determine whether Mr. XXX XXX, or Agent Canton, completed the waiver acknowledgments on the first page of the confession form.

3. Mr. XXX XXX Was Not Advised of Rights in his Native Tongue

As was true with the defendant in Garibay, Mr. XXX XXX was not informed of his rights in his native tongue. See Appendix C. Mr. XXX XXX was not informed of his Miranda rights in Spanish, and had a difficult time understanding the Spanish of the agent who interviewed him. Id.

The fluency of the interrogator in the language of the suspect is an important factor in the waiver inquiry. In United States v. Alvarez, No. 1:98-CR-110, 1999 WL 402436 (W.D. Mich. Mar. 26, 1999), the court declined to suppress a statement given by a Spanish-speaking suspect. Id. at 1991 WL 40236, *4. In that case, however, the initial interview was translated by Assistant Warden Robert Balli. Id. at 1991 WL 40236, *1. Mr. Balli was Hispanic, grew up near the Mexican border, was bilingual, and was a “certified” Spanish translator within the Texas prison system. Id.

Moreover, the defendant in Alvarez waived-off the Spanish translations as the interview progressed, and indicated that he understood the questions in English. Id. at 1991 WL 40236, *2.

By contrast, Mr. XXX XXX does not speak English well. See Appendix C. An evidentiary hearing is appropriate to gauge the Spanish fluency of Agent Mario Canton, or the INS agent who interrogated Mr. XXX XXX.

4. Mr. XXX XXX Did Not Have the Assistance of a Translator

One factor in the Garibay analysis is whether the suspect had the presence of a translator when questioned. In the present case, there can be no question that Spanish is Mr. XXX XXX' native language. The government must address whether a Spanish speaker was present in San Quinten during the interview, and why a translator was not involved. In the alternative, an evidentiary hearing is appropriate to address this issue with Agent Canton.

5. Additional factors weigh against valid waiver based upon the totality of circumstances test

The factors listed by the Court in Garibay are not exhaustive, and this Court should look to the totality of the circumstances to determine whether Mr. XXX XXX' Miranda rights were freely, knowingly, intelligently and voluntarily waived.

One such factor is Mr. XXX XXX's misunderstanding of the significance of the confession and the pending charges. All Mexican inmates know the Hobson's choice presented by INS officials as deportation looms; sign a written statement of alienage and be immediately deported, or remain in custody and fight a (hopeless) battle before the immigration courts. The vast majority of aliens chose freedom in Mexico over fighting for their rights from jail.

When interviewed, Mr. XXX XXX did not know that the written form he was signing was the foundation of an impending federal Section 1326 prosecution; there was certainly no indication of that fact on the waiver form or statement itself. Instead, as with any alien previously embroiled in deportation proceedings, he reasonably assumed that the document related to immigration matters.

One factor in the statutory analysis of “voluntariness” is “whether the defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession.” 18 U.S.C. ' 3501(b). There is no showing that Mr. XXX XXX was informed of the serious federal charges that awaited him as he gave a statement in September of 1998. This Court must indulge in every reasonable presumption against valid waiver of constitutional rights. See Garibay, 143 F.3d at 536-37. Because Mr. XXX XXX was not informed of the impending federal prosecution, it is reasonable to presume that he was unaware of the charges. The statement was accordingly involuntary. See 18 U.S.C. Section 3501(b).

II. Mr. XXX XXX Was Not Informed of His Right to Speak With The Mexican Consulate

Mr. XXX XXX was not informed of his right to speak with the Mexican Consulate. See Appendix C. Had he been permitted to call the Mexican Consulate, he would have been informed of his right to counsel and would have been encouraged to remain silent. See Ultan Decl., Appendix F.

The Vienna Convention on Consular Relations guarantees the right of a foreign national to contact his consulate when detained in a signatory state:

[I]f he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that States is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody, or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of the rights under this sub-paragraph.

Vienna Convention on Consular Relations, April 24, 1963 [1970] 21 U.S.T. 77, T.I.A.S. No. 6280 (emphasis added).

In United States v. Lombera-Camorlinga, 170 F.3d 1241 (9th Cir. 1999), the Ninth Circuit affirmed the important role of the Vienna Convention and lamented that its limitations were often ignored:

Despite the importance of the Vienna Convention, and its status as the supreme law of the land, law enforcement officials continue to overlook the rights Article 36(1)(b) establishes for foreign nationals who are “arrested, in prison, custody, or detention.” Convention, art. 36(1)(b). By failing to complain of these violations at trial, however, most individual defendants have “failed to exercise [their] rights under the Vienna Convention in conformity with the laws of the United States. Breard v. Greene, 523 U.S. 371, 118 S.Ct. 1325, 1355, 140 L.Ed. 529 (1998) . . . . By raising his claim in a pretrial suppression motion, the appellant exercised his rights under the Convention in conformity with our laws.

Id. at 1243 (footnote and internal citations omitted).

Thankfully, the INS is beginning to concede the importance of the Vienna Convention, and is now including an admonition in the face sheet of the written statement form provided to aliens during interviews. See Advisement Form, Francisco Farias-Adame dated June 11, 1999, Appendix G (“You also have the right to talk to the consular or diplomatic officers of your country before answering any questions.”) Unfortunately, while the Vienna Convention was in effect in September of 1998, the INS did not include this warning in the admonition form given to Mr. XXX XXX. Compare Appendix B at 1.

The Court in Lombera-Camorlinga articulated the appropriate standard for a Vienna Convention challenge: “Upon a showing that the Vienna Convention was violated by a failure to inform the alien of his right to contact his consulate, the defendant in a criminal proceeding has the initial burden of producing evidence showing prejudice from the violation of the Convention. If the defendant meets that burden, it is up to the government to rebut the showing of prejudice.”

Lobera-Camorlinga, 170 F.3d at 1244.

Mr. XXX XXX has met his burden of showing prejudice in the present case. At trial, admission of this five page written confession, complete with fingerprints, will establish most of the elements of the government's case--and will do so based on admissions straight from the defendant. Had Mr. XXX XXX spoken to the consulate, he would have been urged to remain silent, informed of his right to speak with an attorney, and members of the Consulate may have come to participate in the interview. Ultan Decl., Appendix F. This more prudent course would have deprived the government of the single most compelling item of evidence against Mr. XXX XXX, as he faces illegal reentry charges at trial.

Moreover, the failure of the INS agent to inform Mr. XXX XXX of his right to contact his consulate enters into the “totality of circumstances” in gauging whether he validly waived his Miranda rights. Mr. XXX XXX is entitled to the reasonable presumption that, had he been informed of his rights to contact the Consulate, Mr. XXX XXX would not have ultimately given a very damning confession. This additional factor further buttresses the presumption that the waiver of rights was not voluntary.

CONCLUSION

For the foregoing reasons, Mr. XXX XXX respectfully requests that the Court suppress the statements given on September 24, 1998, and all evidence arising from this confession. In the alternative, Mr. XXX XXX requests an evidentiary hearing to determine whether the waiver of his Miranda rights was knowing, intelligent, and voluntary, and to determine whether he was prejudiced by the agents' failure to inform him of his right to contact his consulate.

Dated: July 13, 1999

Respectfully submitted,

BARRY J. PORTMAN

Federal Public Defender

STEVEN G. KALAR

Assistant Federal Public Defender

[1]This statement of facts is based upon the discovery provided by the government, the declaration of XXX XXX XXX XXX, [@XXX XXX Decl.@], and the Declaration of Rob Ultan [