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