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July 14, 2000


The opinion of the court was delivered by: Chin, District Judge.


In this case, defendant You Hong Chen is charged with smuggling aliens for private financial gain and conspiracy to transport illegal aliens. Chen moves to suppress his post-arrest statements on the grounds that his waiver of his Miranda rights was not knowing and intelligent because his lawyer at the time — an attorney who was not experienced in federal criminal matters — failed to give him proper legal advice. I conducted an evidentiary hearing on April 17 and 18, 2000 and the parties thereafter submitted supplemental briefs. For the reasons set forth below, the motion is denied. The following constitute my findings of fact and conclusions of law.


On April 19, 1999, Chen and two other men were arrested by border patrol agents aboard a train in Montana. The three men admitted that they were citizens of the People's Republic of China and that they had entered the country illegally. After being transferred with the two others to an Immigration and Naturalization Service ("INS") detention facility in Colorado, Chen was released on a $7,500 bond. He told the INS that he would be traveling to and staying in New York City.

On August 3, 1999, the Government filed a complaint against Chen in the Southern District of New York for smuggling illegal aliens into the United States. A warrant was issued for his arrest.

After trying unsuccessfully to locate Chen, Special Agent Anthony Scandiffio of the INS wrote a letter to Chen purporting to ask him to come to INS offices to retrieve his bond money. On August 27, 1999, in response to the letter, Scandiffio received a telephone call from John Zhang, an attorney, who stated that he was calling on behalf of Chen. Scandiffio asked Zhang to come into the INS offices with Chen and the two did so later that day.

Zhang and Chen were met at INS offices at 26 Federal Plaza by Scandiffo and Special Agent Brett Dreyer. While they were waiting for an interpreter for Chen, Scandiffo and Dreyer spoke with Zhang in the hallway, outside the presence of Chen. They told Zhang that they had a warrant for Chen's arrest, that they intended to take Chen over to the District Court to be presented in front of a magistrate judge, that Chen was the first person in the case to be arrested, and that they felt Chen had a "good opportunity to help himself" by cooperating. (Tr. at 5). Zhang understood at that point that Chen had no obligation to speak to the agents, but that he could if he wanted to do so.

At some point, Zhang spoke with Chen alone for five or ten minutes. Zhang told Chen what the agents had said. After the interpreter arrived, Zhang, Chen, the two agents, and the interpreter went into an interview room. The interpreter read Chen his Miranda rights in Chinese (the Mandarin dialect) off an INS form. Thereafter, Chen made certain statements, but Scandiffo concluded that Chen was not being truthful. Scandiffo told Chen and Zhang that there was no point in continuing if Chen was not going to be truthful. (Tr. 8).

At that point, Zhang asked to speak with Chen alone. The interpreter and both agents left the room. At some point Zhang discussed with Chen his Miranda rights. In fact, Zhang explained the Miranda rights to Chen in Chinese. He told Chen that if he wanted to cooperate, "maybe it's a good time," but he also told Chen that if he did not want to talk to the agents then, there would be "no disadvantage" and he would have an opportunity to cooperate in the future. (Tr. 55). Zhang never told Chen, in words or substance, that he had no choice but to talk to the agents. (Tr. 55).

After half an hour, a new interpreter appeared. Thereafter, Zhang came out of the room and stated that Chen was prepared to continue and to speak truthfully. The agents and the new interpreter went back into the room. The new interpreter spoke Cantonese rather than Mandarin, but Chen was able to communicate with him. In response to a question from Scandiffo, Chen stated that he understood the rights that had been read to him. He stated that he understood the waiver of rights form and he signed it. The two agents started questioning Chen and he answered their questions. The interview lasted about an hour.

During the time at INS, Zhang explained Chen's rights to him and generally explained the situation to him, but he did not adequately represent him. For example, Zhang permitted Chen to answer the agents' questions even though he had did not have "any idea" what Chen was going to say, other than that Chen had previously told him he had not done anything "serious." (Tr. 61-62). He did not ask the Government for a proffer agreement but simply permitted Chen to speak.


I conclude that Chen's waiver of his Fifth Amendment right to remain silent was knowing, ...

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