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