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UNITED STATES v. SUI YIN HO

November 20, 1995

UNITED STATES OF AMERICA, Plaintiffs,
v.
SUI YIN HO, Defendant.



The opinion of the court was delivered by: HECKMAN

REPORT AND RECOMMENDATION

 CAROL E. HECKMAN

 UNITED STATES MAGISTRATE JUDGE

 Defendant is charged in a one-count indictment with possession of fifty counterfeit credit cards with intent to distribute in violation of 18 U.S.C. ┬ž 1029(a)(3). The defendant, a Chinese national lawfully residing in Canada, was stopped for a border inspection while crossing the Peace Bridge at Buffalo, New York on January 10, 1995. During an examination of her purse, INS and Customs agents discovery fifty counterfeit Visa cards. She was subsequently questioned by special agents of the Customs service at which time she gave oral statements.

 The defendant moves to suppress these statements on the basis that they were taken in violation of her rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). For the reasons set forth below, defendant's motion should be denied.

 BACKGROUND

 A suppression hearing was held on September 14, 1995. Special Agent Szrama testified for the government, and the defendant also testified on her own behalf. The testimony is summarized below.

 1. TESTIMONY OF SPECIAL AGENT SZRAMA

 Agent Szrama testified that he received a call from the Peace Bridge on January 10, 1995 regarding the seizure of fifty credit cards from a bus passenger's bag. He traveled to the Peace Bridge with Special Agent Hourican and several others, arriving there at approximately 11:00 a.m. When he arrived at the Bridge, he examined the bag in which the cards were found and learned that these items were found by Inspectors Lang and Vito. He then went to an interview room in which the defendant had been placed. At that time, the defendant was not in handcuffs and was not under formal arrest.

 Special Agent Szrama, in the company of Special Agent Hourican, then proceeded to interview the defendant. The agent began by asking the defendant if she understood English, and defendant stated that she did. Agent Szrama then advised defendant of her rights from a Miranda card, admitted into the suppression hearing as government Exhibit 1. Before reading defendant her rights, he asked her if she spoke English, to which she replied that she did. When he read defendant her rights, the defendant asked him what it meant to waive her rights. He then gave her an explanation and she acknowledged that she understood. He also explained that she could stop answering questions at any time. Agent Szrama testified that he advised her that she was likely to be arrested even if she answered the questions. He denied that any threats or promises were made to her.

 Special Agent Szrama then proceeded to interview the defendant. In addition to answering general background questions, the defendant denied any knowledge of the credit cards, claiming that someone else must have put them in her bag when she was at the bus station. As far as her travel plans, the defendant stated that she was going to New York City for the day to do some shopping. She did not know where she was staying but then she was going to Cleveland to visit an uncle where she would stay overnight. To get to Cleveland, she planned to rent a car. She also told the agents that she would have no reason to put credit cards in a bag if she knew the bag would be searched at the border.

 Agent Szrama told the defendant that he thought she was lying. Special Agent Hourican told the defendant that if they found fingerprints on the credit cards, she was going to be in a lot of trouble. The defendant then stated that her fingerprints may be on the cards because the inspectors handed them back to her when they initially found them in her handbag.

 The Agents learned that the defendant had attended school at the University of Toronto, where she had graduated. The credit cards were issued to the Toronto Dominion Bank through the University of Toronto. The defendant was not currently working, but was living off savings.

 Special Agent Szrama testified that the questioning took 35 to 40 minutes. He agreed that the defendant had an Asian accent but felt that he was able to communicate with her in English.

 Cross examination established that the defendant had arrived at the bridge at approximately 10:10 a.m. that morning as a bus passenger. She went through Immigration inspection and then through Customs inspection. The customs inspectors referred her to secondary inspection.

 Special Agent Szrama was at the border approximately one hour and thirty minutes before talking to the defendant. During that time, he went through her purse and ran the credit cards through a bin reader.

 The card he used to advise the defendant of her rights also advises a person that they are being detained or arrested. Agent Szrama testified that he skipped that part of the card because he did not believe the defendant had been arrested. He stated that the defendant was being detained at the border under their general authority to detain.

 During the interview of the defendant, she disclosed that she was taking medication for tuberculosis. Agent Szrama asked her to wear a face mask during the interview, which she did. This was a surgical mask which covered her mouth and nose. He learned that she was born in Hong Kong. He described her as being timid, quiet and ...


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