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February 15, 1978

UNITED STATES OF AMERICA, Plaintiff, against SAWADDI CHANSRIHARAJ a/k/a "Sawat Nawbhanich" and KENJI SUZUKI, Defendants.

The opinion of the court was delivered by: LEVAL



 The defendant's motion to suppress his statements made in response to questions of an Assistant United States Attorney raises a difficult question as to the government's discharge of its obligations under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).

 The issue (not infrequently encountered by prosecutors) is what to do when a defendant, upon being advised of his right to have a lawyer present at the interview, makes an ambiguous or unclear answer which neither asserts the desire to avail himself of the right nor clearly waives it. Further inquiry may well be required to clarify the defendant's understanding and his wishes. I find that what was done here was insufficient.

 Agents of the Drug Enforcement Administration arrested Kenji Suzuki, a Japanese national, in his hotel room in the afternoon of Sunday November 6, 1977 with more than sufficient probable cause to believe that he had recently delivered a kilo of heroin to a now cooperating co-defendant and was prepared to deliver more. An agent asked Suzuki whether he understood English. He answered in the affirmative. The question was repeated and again answered affirmatively. Then reading from a Justice Department card the agent went through the Miranda rights slowly, pausing after each one and obtaining the defendant's acknowledgement that he understood it. Having completed the advice, he asked Suzuki, "Do you want to talk to me?" and received an affirmative answer.

 Suzuki answered the agents' questions in a manner which he thought exculpatory since he denied awareness that the substance in his possession was narcotic, but which also was seriously inculpatory in that he acknowledged having imported "powder" for a Thai kickboxer and having delivered it, as instructed, to the Thai co-defendant in New York.

 The defendant was lodged over Sunday night in the Metropolitan Correctional Center. The next morning prior to arraignment he was brought to the office of an Assistant U.S. Attorney. A Japanese interpreter was present. The Assistant, through the interpreter who was instructed to translate verbatim, began by advising the defendant of his rights. Reading from a mimeographed U.S. government form, the Assistant stated each right and asked if the defendant understood.

 The problem arose when, in response to the inquiry whether he understood his right to have an attorney present during the interview, the defendant stated, "I have a friend Mr. Mori who is trying to arrange a lawyer." The Assistant then repeated verbatim from the form, "You have a right to consult an attorney and to have that attorney present during this interview. Do you understand that now?" The defendant answered, "Yes" and the interview proceeded. The Assistant asked if the defendant wished to answer questions about his background, informing him that he could stop at any time. He agreed to do so. Considerably later in the interview, the Assistant asked, "Would you like to tell me what happened?" Suzuki then made further partially exculpatory and partially incriminating admissions, in response to questions.

 The government concedes that had Suzuki stated that he wished to consult an attorney, further interrogation would have been barred. It contends, however, that, since Suzuki understood his rights and nonetheless agreed to answer, he must be deemed to have waived his right. Alternatively, it argues that this instance is covered by a line of cases in which subsequently volunteered statements have been admitted despite clear prior assertions of intent to consult counsel.

 As to the first contention, although it is true that the defendant need not make an express "waiver" of Miranda rights and that such a waiver may be inferred from the defendant's conduct and responses, I cannot draw such an inference from this interview following the defendant's ambiguous assertion.

 In addition, the issue cannot be whether the defendant was prepared to volunteer the information, because he was not given the opportunity. The questioning continued and he spoke only in answer to questions. The crucial difference between these facts and the cases on which the government relies is that in the cited cases the government stopped all substantive questioning upon the defendant's invocation of Miranda rights and played no role in procuring the admissions subsequently made. For example, in Cobbs v. Robinson, 528 F.2d 1331, 1342 (2 Cir. 1975), cert. denied, 424 U.S. 947, 96 S. Ct. 1419, 47 L. Ed. 2d 354 (1976) "[there] was no evidence of any attempt at an interrogation." To the contrary "a police officer advised [the defendant] that no statement from him was needed because they already had sufficient evidence." He was offered a telephone to call his lawyer; instead he called his grandmother who came to the police station, spoke to him in private and convinced him to tell the police the facts, which he did without a question on their part.

 Similarly, in United States v. Kaylor, 491 F.2d 1127 (2nd Cr. 1973), vacated and remanded on other grounds, 418 U.S. 909 (1974), United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976), and United States v. Hodge, 487 F.2d 945 (5th Cir. 1973), the admitted statements were volunteered and were not made in response to government questioning.

 On the other hand, I do not find that the defendant's statement amounted to an "[indication] in any manner... that he wishes to consult with an attorney before speaking" which under Miranda, 384 U.S. at 444-45, would require termination of the questioning. The significance of his remark that a friend was trying to get him a lawyer was unclear. It was all the more unclear in view of the fact that the interview was being relayed through a Japanese interpreter, which might have resulted in loss or distortion of nuances. It was not clear, for example, whether the lawyer was being sought for help at such an interrogation, or only for court proceedings. Nor could the Assistant have known at the time whether the friend had already succeeded in retaining an attorney, so that the defendant, although ignorant of the fact, was already represented. That fact, if true, might have altered the picture as to satisfactory demonstration of waiver. See United States v. Nielsen, 392 F.2d 849, 853 (7th Cir. 1968). Compare People v. Taylor, 27 N.Y.2d 327, 318 N.Y.S.2d 1, 266 N.E.2d 630 (1971).

 I find that the defendant's remark was of the type referred to in U.S. v. Riggs, 537 F.2d 1219, 1221 (4th Cir. 1976), which "arguably amounts to" or may indicate an intended "assertion of... Miranda rights," which should cause the investigator, at least temporarily, to cease questioning as to the crime and ...

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