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UNITED STATES v. YONG BING-GONG

August 13, 1984

UNITED STATES OF AMERICA, against YONG BING-GONG, a/k/a Yong Pian-Gong, a/k/a Peter, a/k/a Gong; QUAH CHOONPHENG, a/k/a Ming, a/k/a Ung Ho Ca; MAK GIN, a/k/a Mak King; YONG BING-NAM, a/k/a Yong Pian-Nam, a/k/a Bing; LEONG HOONG-SIEW, a/k/a Simon Leong; CHAI CHEE KEONG, a/k/a Chai Keong; SHIRLEY WONG, a/k/a Yong Yeow-Foong; and YONG BING-KEONG, a/k/a Yong Pian-Keong, a/k/a Toomy Yoong.


The opinion of the court was delivered by: MINER

ROGER J. MINER, D.J.

MEMORANDUM-DECISION and ORDER

 I

 On October 20, 1983, a grand jury returned a four-count indictment charging defendants with conspiracy to kidnap and kidnaping, in violation of 18 U.S.C. § 1201(a)(1), and with receiving and conspiracy to receive, possess and dispose of ransom money in violation of 18 U.S.C. §§ 371, 1202. *fn1"

 April 2, 1984 through April 5, 1984, this Court conducted an evidentiary hearing for the purposes of determining various defendants' pre-trial motions. Included among these were defendant Shirley Wong's motions for severance and to suppress statements; defendant Chee Keong's motion to suppress certain statements, three intercepted telephone conversations, and the fruits of an allegedly illegal search; defendant Yong Bing-Nam's motions to enforce a cooperation/plea agreement and to suppress certain inculpatory pre-arraignment statements; and defendant Leong Hoong-Siew's motion to suppress certain pre-arraignment statements. The motions by defendants Shirley Wong and Chee Keong were denied in their entirety from the bench following the conclusion of the hearing. The motions of defendants Yong Bing-Nam and Leong Hoong-Siew are the subject of the present decision.

 II

 On October 2, 1983, Mrs. Yim Ling Eng who, with her husband, owned the Kingston Tea Garden restaurant, was kidnapped from her residence in Hurley, New York. On October 5, 1983, a ransom of $150,000 was paid by Mr. Eng, allegedly through defendant Bing-Nam, to secure the release of his wife. Mrs. Eng was not released and her whereabouts remain unknown, although the Government indicates that evidence points to the fact that she was killed during the abduction. By the following evening, October 6th, evidence developed by a team of investigators had established apparent probable cause to believe that certain employees of the Kingston Tea Garden had participated in the kidnapping.

 A. Arrest of Yong Bing-Nam

 Armed with warrants, a force of twenty-two investigators from the New York State Police ("NYSP") descended upon the restaurant on October 6th at approximately 11:30 P.M. Defendant Yong Bing-Nam, along with others, was arrested and transported to the NYSP barracks at Hurley, New York, arriving there at approximately 12:30 A.M.

 At the barracks, Bing-Nam was advised of his Miranda rights in English, both orally and in writing, by NYSP Investigator Robert C. Schanck. Bing-Nam executed a written waiver of those rights. Also present with Investigator Schanck with NYSP Investigator Collins. According to Schanck, Bing-Nam understood the English presentation of the Miranda rights. At approximately 1:00 A.M., Schanck turned defendant over to Special Agent Wesley Wong of the FBI. Wong, who spoke neither Chinese or Cantonese, advised Bing-Nam again of his Miranda rights both orally and in writing, but again only in English. According to Agent Wong, he showed Bing-Nam a printed Miranda form and asked him if he spoke English. Bing-Nam replied affirmatively but asked Wong if he spoke Chinese. Wong replied no. Wong was satisfied that Bing-Nam could speak and understand English and had him sign the rights form. Wong noted, however, that Bing-Nam could not read English. Wong then questioned defendant for about two hours, with additional questions put to defendant by NYSP Investigator Reilly. In response to the questioning, Bing-Nam insisted that he knew nothing about the kidnapping except for a phone call he had received from Mr. Eng on the night of October 2nd. Wong was able to ascertain that Bing-Nam was twenty-six years old and had been in this country for approximately four years, the latter two and one-half of which he had been employed at the Kingston Tea Garden. Wong left the interrogation site sometime between 3:00 A.M. and 4:00 A.M.

 At about 8:30 A.M., Bing-Nam was subjected to questioning by NYSP Lieutenant Richard E. Ovens. Ovens questioned Bing-Nam intermittently until apaproximately 2:00 P.M. that afternoon. In large part, the questioning focused on defendant's possession, at the time of his arrest, of $1,200. Bing-Nam advised Lieutenant Ovens that it was a portion of the ransom money he had kept because Mr. Eng owed it to him. During the course of the Ovens interview, Bing-Nam periodically fell asleep in his chair for fifteen or twenty minute periods, but Lieutenant Ovens testified that Bing-Nam was coherent during the questioning.

 At about 9:10 A.M., Special Agent Wong returned to the interrogation site and renewed his questioning concerning the kidnapping. Bing-Nam continued to deny any knowledge of or participation in the crime. Wong left the room sometime between 11:30 A.M. and 12:00 noon and returned between 1:00 P.M. and 1:30 P.M. Bing-Nam had by this point been in custody for more than twelve hours and no attempt to have him arraigned had yet been made. When Wong returned again between 1:00 P.M. and 2:00 P.M., he advised Bing-Nam of the charges against him. When Bing-Nam asked Wong how long a sentence he could receive, Wong replied that the maximum term of imprisonment could be life. Bing-Nam expressed great shock at the severity of such a sentence and Wong then advised him that any sentence would ultimately be determined by a court. Agent Wong then left the room.

 Sometime around 2:00 P.M., Special Agent Joseph W. Flynn of the FBI entered the interrogation room; Agent Wong returned shortly thereafter. The agents discussed with Bing-Nam his offer to tell what he knew about the kidnapping in return for immunity from prosecution or, in defendant's words, for "no jail time." After some preliminary discussions, Agent Flynn departed to relate defendant's offer to his superiors. Between 2:30 P.M. and 4:00 P.M., the agents discussed Bing-Nam's offer both with their superiors and with the United States Attorney's Office in Albany. Agent Flynn soon returned to the interrogation room and formulated a list of seven questions he considered significant to the investigation. Flynn showed the list to Bing-Nam who replied that he could answer five of the seven questions but that he was unaware of where Mrs. Eng was or where those involved in the abduction were.

 At approximately 3:30 P.M., agents Flynn and Wong were advised by their superiors that the United States Attorney's Office had authorized an agreement with Bing-Nam based upon certain terms and conditions. In substance, the agreement embodied the following conditions: (1) defendant was to answer the questions asked of him truthfully and completely; (2) the Government would limit the maximum sentence which the defendant could receive to ten years, which, if imposed, would allow a possibility of release after three and one-third years; (3) if it was later determined that defendant had withheld information or had been untruthful, the agreement would be nullified; and (4) the defendant's agreement to cooperate was a continuing one. After being advised of its terms, and after some initial hesitation, Bing-Nam accepted the agreement.

 Between 4:00 P.M. and 7:00 P.M., and pursuant to the terms of the agreement, Agents Flynn and Wong commenced their interview of Bing-Nam. Bing-Nam then provided the agents with a detailed narrative of the events in question and provided answers to the five questions to which he had earlier indicated he could. At approximately 7:00 P.M., nearly twenty hours after his arrest, defendant was arraigned before the local town justice.

 B. Arrest of Leong Hoong-Siew

 On October 7, 1983 at approximately 8:00 P.M., NYSP Investigator Steven Brignoli and FBI Special Agent James Ausanio, along with other FBI and NYSP personnel, proceeded to Eng's II Restaurant in Kingston, New York for the purpose of "picking up" Hoong-Siew for questioning and possibly to arrest this defendant. Once inside the restaurant, Brignoli and Ausanio were directed to Hoong-Siew by a fellow employee. When Ausanio approached Hoong-Siew and indicated his desire to question him, Hoong-Siew stated he was busy with work and requested time to finish his duties. Ausanio assented to this request, and waited with Brignoli for Hoong-Siew in the restaurant's lobby for approximately ten to fifteen minutes.

 At approximately 8:30 P.M., Ausanio again requested that Hoong-Siew accompany him, which Hoong-Siew agreed to do.The two then proceeded to Ausanio's vehicle in which Brignoli was waiting. At that time, Hoong-Siew was advised that the officers intended to question him at the NYSP barracks concerning Mrs. Eng's kidnapping, and Hoong-Siew indicated his desire to help in the investigation.

 Upon arrival at the barracks the three men proceeded to an office where they seated themselves. Brignoli orally advised Hoong-Siew of his Miranda rights, i.e., that he had a right to remain silent, anything he said could be used against him in a court of law, he had the right to an attorney, and if he could not afford an attorney, one would be provided for him. Although defendant then stated that he understood these rights, he now contends that, because of difficulty with the English language, in fact, he did not understand these Miranda warnings.

 The interrogation that followed was conducted entirely in English, and Hoong-Siew never requested the aid of an interpreter. During the interrogation, defendant was offered cigarettes and refreshments ...


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