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UNITED STATES v. PIMENTEL

November 6, 1978

UNITED STATES of America, Plaintiff,
v.
Estanislao PIMENTEL, Defendant



The opinion of the court was delivered by: GOETTEL

Defendant Estanislao Pimentel has moved to suppress statements he made to Assistant United States Attorney (AUSA) Denise Cote during a post-indictment interview. He alleges that the statements were elicited in violation of both the Fifth and Sixth Amendments. The Court held an evidentiary hearing on the motion on September 13, 14, 15 and 21, 1978, and the evidence established the following facts.

Facts

 Pimentel was indicted on April 7, 1978 and charged, along with others, with participation in a fraudulent income tax refund check scheme. At that time, as he was in the Dominican Republic and technically, at least, a fugitive, a warrant was issued for his arrest. By July 20th, Pimentel had returned to the United States, and on that day, three Internal Revenue Service (IRS) agents served the warrant and arrested him after they had located him in his apartment, hiding in a closet. The defendant was read his Miranda warnings in English (the evidence showed that the defendant has some knowledge of English but is more proficient in Spanish) and was shown and had read to him his arrest warrant. Before being taken from the apartment, Pimentel was allowed to dress in clothing chosen for him by his "common law" wife.

 The defendant was taken from his apartment at approximately 11:00 p.m. and driven directly to the Metropolitan Correction Center (MCC). No stop for processing or interrogation was made at IRS offices. He was logged in at the MCC at 11:35 and put through the normal processing procedures. The next morning Pimentel apparently chose to forego breakfast (he testified that at the time he was not hungry). He made no request for food while at the MCC, or later to the IRS agents or the AUSA.

 At 10:05 a.m., the defendant was taken from the MCC first to the United States Marshal's office for processing (fingerprinting, photographing etc.), and then to the United States Attorney's Office where he was interviewed by AUSA Cote. Throughout the questioning, which began at 10:50 a.m., an interpreter was present who translated the proceedings into Spanish for Pimentel. AUSA Cote advised the defendant that an indictment had been filed against him, described the crimes charged, and handed the interpreter a copy of the indictment so that he could translate aloud all counts (numbers 1, 32-36) in which the defendant was named. The defendant was also handed the copy to read himself. He was informed that he would soon be brought before a Magistrate who would fix bail in the case (the interview actually took far longer than usual, about two hours, due to the necessity for translation throughout). Prior to asking any questions, AUSA Cote advised the defendant of his constitutional rights, and questioned him as to his understanding of them. The Court finds that the following warnings were given:

 
Cote: Before you say anything let me finish advising you of your rights. You have a constitutional right to refuse to answer any of my questions. Do you understand that?
 
Pimentel: I have the right to refuse to answer any question. If you say a question I know to be true I'll say yes. If not I'll say no.
 
Cote: You can refuse to answer Any question. Do you understand that?
 
Pimentel: Yes.
 
Cote: You have an absolute right to remain silent and if you chose (sic) to answer any questions, any statements you do make can be use against you in a court of law. Do you understand that?
 
Pimentel: Yes.
 
Cote: You have a right to consult an attorney and to have that attorney present during this interview. Do you understand that?
 
Pimentel: Yes.
 
Cote: If you do not have funds to retain an attorney, an attorney will be appointed to represent you and you do not have to answer any questions before this attorney is appointed and you can ...

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