BARRY J

Table of Authorities............................................................................................................... iii

Introduction.............................................................................................................................. 1

Statement of Facts.................................................................................................................... 1

I. XXX XXX XXX XXX....................................................................................... 1

II. The Subterfuge of Special Agent Lee............................................................... 3

A. Investigation in March............................................................................ 3

B. Arrest in April......................................................................................... 3

1. Agent Lee Poses as Bank Employee......................................... 4

III. Ill in April............................................................................................................ 4

A. The Cold and Herbal Remedy................................................................ 4

B. Handcuffed, in Pajamas, and Interrogated............................................ 5

Discussion.................................................................................................................................. 7

I. XXX XXX XXX XXX's Statement Given in the Federal Building Was in Violation of Her Fifth and Sixth Amendment Rights, and Must Be Suppressed.................................... 8

A. XXX XXX XXX XXX did not knowingly and intelligently waive her Miranda rights.................................................................................................................... 8

1. XXX XXX XXX XXX had language difficulties.............................. 10

2. XXX XXX XXX XXX's impaired mental ability.............................. 10

3. XXX XXX XXX XXX did not sign a written waiver........................ 11

4. XXX XXX XXX XXX was not advised of her Miranda rights in her native tongue .................................................................................................. 11

5. XXX XXX XXX XXX could not have appeared to understand her rights 11

6. XXX XXX XXX XXX did not have the assistance of a

translator............................................................................................... 12

7. XXX XXX XXX XXX's rights were not individually and repeatedly explained............................................................................................... 12

8. XXX XXX XXX XXX has no prior experience with the criminal justice system.................................................................................................... 12

9. Additional factors weigh against valid waiver based upon the totality of circumstances test................................................................................ 13

B. Even if XXX XXX XXX XXX's Waiver was of Her Miranda Rights Was Valid, Her Subsequent Confession was Involuntary and Must be Suppressed as a Matter of Law. ................................................................................................................... 14

II. The Court Should Hold an Evidentiary Hearing to Determine Whether XXX XXX XXX XXX Voluntarily, Knowingly, and Intelligently Waived Her Miranda Rights, and Whether Her Confession Was Voluntary.................................................................................. 17

Conclusion............................................................................................................................... 18

Introduction

XXX XXX XXX XXX is charged in a federal indictment with two counts of theft of the property of the United States, in violation of 18 U.S.C. Section 641, and one count of concealment or destruction of a tax return, in violation of 18 U.S.C. Section 2071. On April 20, 1999, XXX XXX XXX XXX was interviewed by Special Agent Scott Lee, who falsely represented himself as an employee of XXX XXX XXX XXX's bank. On the following day, Agent Lee and other agents arrested XXX XXX XXX XXX in the morning, brought her to the federal building while handcuffed and in her pajamas, and interrogated her without fully explaining her Miranda rights. XXX XXX XXX XXX provided a second statement and signed a written admission. XXX XXX XXX XXX seeks to suppress all statements arising from her interrogation in the federal building, obtained in violation of her Fifth and Sixth Amendment rights.

STATEMENT OF FACTS[1]

I. XXX XXX XXX XXX

XXX XXX XXX XXX is one of millions of people whose lives were profoundly affected by the Vietnamese War. Although she is of Chinese descent, her family lived in Vietnam during the war and fled the country when she was very young. See Declaration of XXX XXX XXX XXX, Appendix A.

XXX XXX and her family, along with hundreds of other refugees, crowded upon a fishing boat and tried to escape Vietnam. While on the high seas, pirates attacked the boat and stole all of the refugees' belongings. Soon after being attacked by pirates, the boat carrying the refugees began to take on water. A nearby fishing boat was able to rescue most of the refugees, including XXX XXX and her immediate family. Other refugees, however, drowned.

XXX XXX and her family were taken to Thailand, where they waited over a year. Eventually relatives in the United States were able to bring the family to California.

XXX XXX attended school in the United States since the third grade, but was always a mediocre student. While she graduated from high school, her English remains heavily accented and she suffers from gaps in comprehension. Her native language is Chinese. See Appendix A.

Economic pressures in the United States eventually lead to the separation of XXX XXX's parents in 1994. XXX XXX's mother, XXX XXX, took the separation particularly hard. Psychological and mental problems that had been lurking came to the fore, and XXX XXX became very argumentative and abusive. XXX XXX is currently taking medication for these probleXXX XXX See Appendix I.

As the oldest child, XXX XXX shouldered the burden of providing for her family after it was abandoned by her father. She, along with her brother, worked to provide for herself, her mother, and younger sister. XXX XXX also struggled to play the role of a care giver for her emotionally-fragile mother.

II. The Subterfuge of Special Agent Lee

A. Investigation in March

On March 18, Special Agents Scott Lee and Grant Marcoux reported an interview of XXX XXX. See Memorandum of Interview or Activity (“March 18 Memo”), Appendix B. XXX XXX reported that a check written by his mother, XXX XXX, had been endorsed to the IRS but had been returned with the signature “XXX XXX XXX XXX.” Id.

On the same day, Special Agent Scott Lee reported that IDRS records disclosed that the name “XXX XXX M. XXX XXX” was associated with the name, “XXX XXX XXX XXX,” and that XXX XXX XXX XXX was employed as a clerk in the IRS Collection Division at 450 Golden Gate Avenue. Memorandum of Interview, (“March 18 Memo II”), Appendix C.

B. Arrest in April

Despite the fact that Special Agent Lee had identified XXX XXX XXX XXX as an IRS employee in March, another month went by and XXX XXX XXX XXX continued to work at the IRS Collection Center across from the snack store, on the first floor of the San Francisco Federal Building. She was unaware that she was the target of a federal investigation.

On April 19, 1999, a teller from Cathay Bank contacted Special Agent Lee and informed him that a check for $23,150 from the account of XXX XXX had been deposited. Memorandum of Interview, (“April 19 Memo”), Appendix D. The check was made payable to XXX XXX XXX XXX. Id. Chinese characters were written on an envelope accompanying the check, as well as a pager number. Appendix E (Bates 32).

1. Agent Lee Poses as Bank Employee

On April 20, 1999, a monitored phone call was made to the pager number on the envelope accompanying the check. Memorandum of Interview, (“April 20, 1999 Memo”), Appendix F (Bates 35). Agent Lee described his motivation for calling the number:

A monitored telephone call was made to XXX XXX's pager in an effort to set up an electronically monitored and recorded meeting. During that meeting it was hoped that XXX XXX would provide evidence regarding the theft of two IRS remittance checks, allegedly stolen by her.

Id.

According to Special Agent Lee, XXX XXX XXX XXX appeared at the bank after the number was paged. Lee, who was in the bank at the time, “posed as an employee of the bank and told XXX XXX there were questions regarding the $23,150.00 check she deposited into her bank account.” Id. Agent Lee asked XXX XXX XXX XXX about her signature and her Chinese name. Id. He requested that a bank teller have XXX XXX XXX XXX sign a “One and the Same Acknowledgment,” which provided both names and a handwriting exemplar. Id. at Bates 36, 37. According to Agent Lee, he and XXX XXX XXX XXX discussed the $23,150 check, and also discussed an $8,000 check deposited “some months” earlier. Id.

III. Ill in April

A. The Cold and Herbal Remedy

As of April 20, XXX XXX XXX XXX had been suffering for several weeks from a very severe cold. A week or two before April 20, she had seen a traditional Chinese doctor who had given her an herbal powder. Appendix A. She mixed this powder with water and took it twice a day, once in the morning and once in the evening. Id. The powder made her feel better, but also made her groggy and sleepy. Id.

During the week of April 19, she was still very sick with the cold. On the morning of Tuesday, April 20, she took a dosage of the herbal powder in the morning. Id. She was feeling particularly ill that afternoon, and asked to leave work early. Id. She went to the bank, spoke with Special Agent Lee, and then went again to meet with her Chinese doctor. Id.

Her doctor gave her another regimen of the herbal powder that was stronger than the first round. Id. She took one dose of this stronger powder that afternoon while in his office. Id.

XXX XXX XXX XXX returned home, and took the third dose of the powder that evening. Id. The powder that she took on the evening of the 20th was the new, stronger dose. Id.

The following morning brought no relief, and XXX XXX XXX XXX took another dosage of the powder. Id. She called in sick to work, and went back to sleep. Id.

B. Handcuffed, in Pajamas, and Interrogated

On the morning of April 21, after XXX XXX XXX XXX had called in sick to work, federal agents pounded on her front door. Id. When the family opened the door, they found Agent Lee, a woman, (presumably Agent Julie Parodi), and at least one and possibly two other men. Id. One of the agents showed their badges and explained that XXX XXX XXX XXX was under arrest. Id. XXX XXX XXX XXX asked if she could change out of her pajamas and into normal clothes: the agents refused. Id. The agents handcuffed XXX XXX XXX XXX in front of her family. Id. XXX XXX XXX XXX was scared, and could see that her mother was scared as well. Id. XXX XXX XXX XXX was later informed by her sister that her mother fainted. Id.

XXX XXX XXX XXX did not have a jacket as she rode to the federal building, and was cold and scared. Id. She was sick, she wasn't given a handkerchief, and was handcuffed. Id. When the agents arrived at the federal building, they took XXX XXX XXX XXX--in her pajamas--through the main lobby on the first floor. Id. The lobby was busy in the morning, and XXX XXX XXX XXX saw people she had met while working at the IRS. Id. She was embarrassed to be paraded through the front lobby, in handcuffs and in her pajamas. Id.

XXX XXX XXX XXX was brought to a small, rectangular room on what she believes was the ninth floor of the federal building. Id. The room had no windows and the door was shut behind her. Id. In the room was a woman, and Agent Lee. Id. XXX XXX XXX XXX was scared, cold, sick, and groggy from the herbal powder. Id. She was humiliated after being taken through the federal building in her pajamas, and was worried about her mother's well-being after the shock of the arrest. Id. XXX XXX XXX XXX had never been arrested before, and didn't know that she was entitled to an appointed attorney. Id.

Agent Lee recited some rights to XXX XXX XXX XXX, but did not read them off of a card. Id. XXX XXX XXX XXX does not remember being told that she had the right to appointed counsel if she could not afford an attorney. Id. She did not understand that she would provided an attorney if she could not afford one. Id. Neither Agent Lee nor the woman ever spoke to XXX XXX XXX XXX in Chinese. Id.

While the agents were interrogating XXX XXX XXX XXX, Magistrate James Larson was conducting his criminal calendar six floors above. Master calendar began on April 21 at 9:30.

Agent Lee told XXX XXX XXX XXX something to the effect that if she told the agents the truth, and she wrote out a statement, that there may some “good benefit” for her. Id. XXX XXX XXX XXX complied, and again offered a statement. Id. She was handed an affidavit form, and the woman agent told her what to write for the first several lines. Id.; see Appendix G (Bates 40-41). The agent told XXX XXX XXX XXX to write that she had been advised of her Miranda rights and, presumably, that her statement was voluntary. XXX XXX XXX XXX wrote the following:

I was advise of my Miranda writes on April 21, 1999 by Special Agent Scott Lee and I agree to talk with him and provide the state of volunteer.

Appendix G, Bates 40:2-5. XXX XXX XXX XXX wrote, “I'm really cooperate with special agent Scott Lee. He know I'm a nice person . . . . I hope he can give me a chance. I will promise him not to do it again.” Id. at 40:18-20.

XXX XXX XXX XXX signed the affidavit, at the direction of Agent Lee and the woman. Agent Lee affirmed that the agreement was subscribed and sworn before him on April 20, 1999. Id. at 41.

XXX XXX XXX XXX was finally brought upstairs to master calendar and appointed counsel from the Federal Public Defender's office.

DISCUSSION

XXX XXX XXX XXX did not knowingly and intelligently waive her Miranda rights when interviewed in the federal building. Moreover, even if her Miranda rights were effectively waived, the interrogation in the federal building was so coercive as to make the confession involuntary.

I. XXX XXX XXX XXX's Statement Given in the Federal Building Was in Violation of Her Fifth and Sixth Amendment Rights, and Must Be Suppressed

A. XXX XXX XXX XXX did not knowingly and intelligently waive her Miranda rights.

Under Miranda v. Arizona, 384 U.S. 436, 575 (1966), a defendant may waive her Fifth Amendment rights against self-incrimination only if "the waiver is made voluntarily, knowingly, and intelligently." Id.; see United States v. Garibay, 143 F.3d 534, 536 (9th Cir. 1998); see also United States v. Binder, 769 F.2d 595, 599 (9th Cir. 1985). 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.

"A valid waiver depends upon the totality of the circumstances including the background, experience, and conduct of defendant." North Carolina v. Butler, 441 U.S. 369, 374-75 (1979) (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)); see also United States v. Bernard S., 795 F.2d 749, 751 (9th Cir. 1986). There is a heavy presumption against the validity of the waiver, and the prosecution has the burden of demonstrating the waiver's validity. See Butler, 441 U.S. at 373.

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.

The Ninth Circuit's recent decision in Garibay is a thoughtful opinion articulating the factors that go to the issue of Miranda waiver. 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 XXX XXX XXX XXX's waiver was not knowing and voluntary.

1. XXX XXX XXX XXX had language difficulties

XXX XXX XXX XXX clearly suffered from language difficulties during her interrogation. Her affidavit is replete with grammatical mistakes and misspellings, ending with the explanation that she “through the tax return away . . . so I would be caught.” See id. (emphasis added).

2. XXX XXX XXX XXX's impaired mental ability

While XXX XXX XXX XXX suffers from no permanent mental impairment, her illness and grogginess from the herbal powder limited her ability to fully understand her rights. Medication and injury can affect a defendant's ability to make a voluntary confession. See Mincey v. Arizona, 437 U.S. 385, 396 (1978) (holding that a confession was involuntary when, among other factors, the defendant was heavily medicated).

Notably, the day before the interview XXX XXX XXX XXX took three doses of the herbal powder, rather than her typical dose of two times a day. XXX XXX Decl., Appendix A. Moreover, the medication was a new, more-powerful prescription. Id. XXX XXX XXX XXX had taken this new powder on the morning before she was interrogated. Id. She was groggy and ill during the interview. Id. The impact of the powder and illness on XXX XXX XXX XXX's mental capacity suggests that she was unable to knowingly and voluntarily waive her Miranda rights on April 21.

3. XXX XXX XXX XXX did not sign a written waiver

XXX XXX XXX XXX was not given a written form containing her Miranda rights, and was not asked to sign a written Miranda waiver form. Instead, the female agent dictated waiver language to XXX XXX XXX XXX that she did not, and does not, understand. The absence of a written waiver undermines the government's heavy burden on proving that the waiver was knowing and voluntary.

4. XXX XXX XXX XXX was not advised of her Miranda rights in her native tongue

XXX XXX XXX XXX's native language is Chinese. Special Agent Lee knew that English was XXX XXX XXX XXX's second language, after interviewing her at the bank the day before and in light of the Chinese notations on the envelope accompanying the second check deposited. The agent's (limited) recital of the Miranda rights in English does not support the government's burden in showing a knowing and voluntary waiver.

5. XXX XXX XXX XXX could not have appeared to understand her rights

When interrogated, XXX XXX XXX XXX was sick, in pajamas, scared, and disorientated. She did not understand the (limited) rights that were read to her, and her confusion is self-evident from her muddled affidavit. See Appendix G. This factor weighs against valid waiver of XXX XXX XXX XXX's Miranda rights.

6. XXX XXX XXX XXX did not have the assistance of a translator

Although Special Agent Lee knew that English was not XXX XXX XXX XXX's native language, he did not arrange for a translator to be present at the interview.

7. XXX XXX XXX XXX's rights were not individually and repeatedly explained

It is noteworthy that, in their memorandum of interview, the agents report that Agent Lee advised XXX XXX XXX XXX of her Miranda rights when she was arrested but do not write that she was so advised before her interrogation in the federal building. See Appendix H at Bates 38.

XXX XXX XXX XXX remembers Agent Lee reciting some rights before interrogating her in the federal building. See Appendix A. Agent Lee did not read her her rights, nor did he give her a written statement of her rights and ask her to sign a waiver. XXX XXX XXX XXX does not remember Agent Lee advising her of her right to appointed counsel. See id. She thought that, because she could not afford an attorney, she was on her own. Id.

Agent Lee's advisement of Miranda rights was incomplete, and XXX XXX XXX XXX's rights were not individually and repeatedly explained.

8. XXX XXX XXX XXX has no prior experience with the criminal justice system

XXX XXX XXX XXX has no prior experience with the criminal justice system. The tone and content of her affidavit reveals a woman who was terrified by the process she was undergoing, and had little or no understanding of the important rights that she was surrendering. XXX XXX XXX XXX's naivete supports her contention that the waiver of her rights was not knowing and voluntary.

9. 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 XXX XXX XXX XXX's waiver was knowing and voluntary. XXX XXX XXX XXX, a young woman with no experience in the criminal justice system, was dragged through the lobby of her workplace handcuffed and in pajamas. She was interrogated by federal agents while, six floors above her, a federal magistrate was conducting master calendar and a federal public defender was available to counsel her. Her inquisitor was an agent who, the day before, had lied and presented himself as a bank official. This same inquisitor, Agent Lee, represented on an affidavit that XXX XXX XXX XXX had given the statement the day before, on April 20. See Appendix G at Bates 41. This suggests that the agent either completed the form in anticipation of a confession, or made an error when he went back and backdated the form.

Sick, cold, groggy, humiliated, and confused, XXX XXX XXX XXX obligingly attempted to parrot the waiver language dictated to her by a federal agent. Given the totality of these circumstances, XXX XXX XXX XXX's waiver of her Miranda rights cannot be viewed as knowing or voluntary. Her statement and affidavit of April 21 must accordingly be suppressed.

B. Even if XXX XXX XXX XXX's Waiver was of Her Miranda Rights Was Valid, Her Subsequent Confession was Involuntary and Must be Suppressed as a Matter of Law.

XXX XXX XXX XXX did not knowingly and voluntarily waive her Miranda rights. Even if she had, however, her confession would still not be voluntary because the interrogation by the federal agents was so coercive as to render the statement involuntary.

The Ninth Circuit has focused upon government coercion and inducement in crafting the test for determining whether a confession is voluntary: "The test for determining whether a confession is voluntary is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne." Amaya-Ruiz v. Stewart, 121 F.3d 486, 494 (9th Cir. 1997) (internal quotations and citations omitted), cert. denied 118 S.Ct. 1083 (1998). The mental acuity and emotional state of the suspect are important inquiries; "In order to be voluntary, a confession must be 'the product of a rational intellect and a free will.'" United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir. 1981) (quoting Blackburn v. Alabama, 361 U.S. 199, 208 (1960)).

The use of an involuntary confession to convict a defendant deprives him or her of due process regardless of both the truth or falsity of the confession and the other evidence supporting the conviction. See Jackson v. Denno, 378 U.S. 368, 376 (1964); Tingle, 658 F.2d at 1334. The government has the burden of proving that a confession was voluntary by a preponderance of the evidence. See Colorado v. Connelly, 479 U.S. 157, 168-69 (1986); Lego v. Twomey, 404 U.S. 477, 489 (1972); Tingle, 658 F.2d at 1335.

Custodial interrogation is inherently coercive. See New York v. Quarles, 467 U.S. 649, 654 (1984); Ashcraft v. Tennessee, 322 U.S. 143, 154 (1944) (noting that police interrogation can be "so inherently coercive that its very existence is irreconcilable with the possession of mental freedom by a lone suspect against whom its full coercive force is brought to bear"). "Miranda expresses concern about the compelling pressures that weigh upon a person in custody, pressures that can break a person's free will and cause that person to talk involuntarily." Collazo v. Estelle, 940 F.2d 411, 417 (9th Cir. 1991) (holding a confession involuntary after proper Miranda warnings because the officer pressured the defendant to change his mind about asserting his rights).

A statement can be involuntary despite being made after proper Miranda warnings. See id.; Tingle, 658 F.2d at 1337. To determine whether a confession has been coerced, the court should examine the totality of the circumstances, including the defendant's characteristics, the conditions of the interrogation, and the conduct of the police. See Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1963). A defendant's subjective psychological characteristics are relevant to the voluntariness inquiry when there is evidence of psychological coercion, because such personal sensitivities may "render[] him more susceptible to subtle forms of coercion." Commonwealth of Northern Mariana Islands v. Mendiola, 976 F.2d 475, 485 (9th Cir. 1992).

The totality of circumstances analysis of Tingle is illustrative in the present case. The Court in Tingle conceded that, AUnder some circumstances it is proper for an interrogating officer to represent to a suspect that his cooperation will be known to the prosecutor.@ Id. at 1336 n.4. The Court nonetheless looked to the agent's statements and considered their Acumulative effect@ in determining whether Tingle's confession was voluntary. Id. Similarly, in the present case Agent Lee's promise of some Agood benefit@ if XXX XXX XXX XXX was cooperative is one of the factors in the totality of circumstances that constitute an unduly coercive environment.

Other factors also illustrate the coercive environment surrounding XXX XXX XXX XXX's involuntary confession. XXX XXX XXX XXX speaks English only as a second language; her native language is Cantonese. While she has some facility in English, her written statement demonstrates that she is far from fluent. When the agents arrested her, they only Mirandized her in English and the Miranda admonition was incomplete.

XXX XXX XXX XXX was arrested in her pajamas and handcuffed, then taken through the lobby of a public building where she had worked. She was ill, groggy from medication, and scared. She knew she could not afford a private attorney, did not understand that she would appointed an attorney, and thus thought that she was on her own. When the interrogation began, she was questioned by the same federal agent who had lied to her the day before an posed as a bank agent. Within this coercive environment, XXX XXX XXX XXX was especially susceptible to psychological pressures from the agents. Under the totality of these circumstances, XXX XXX XXX XXX's confession was coerced, and therefore, involuntary. It should accordingly be suppressed.

II. The Court Should Hold an Evidentiary Hearing to Determine Whether XXX XXX XXX XXX Voluntarily, Knowingly, and Intelligently Waived Her Miranda Rights, and Whether Her Confession Was Voluntary

Should the Court determine after considering the government's response that testimony is in conflict or that credibility is at issue, XXX XXX XXX XXX would request an evidentiary hearing to determine whether the totality of the circumstances supports a finding that she did not validly waive her constitutional rights.

CONCLUSION

For the foregoing reasons, XXX XXX XXX XXX respectfully requests that this Court suppress her statements given to federal agents on April 21, 1999, taken in violation of her constitutional rights.

Dated: June 17, 1999

Respectfully submitted,

BARRY J. PORTMAN

Federal Public Defender

STEVEN G. KALAR

Assistant Federal Public Defender

[1] Facts underlying this motion are derived from discovery produced by the government on or before June 18, and the declaration of XXX XXX XXX XXX (filed herewith).