A defendant may waive his Fifth Amendment privilege "provided
[that] the waiver is made voluntarily, knowingly and
intelligently." Miranda v. Arizona, 384 U.S. 436, 444, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966). The inquiry into the validity
of the waiver "has two distinct dimensions." Moran v. Burbine,
475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). First,
the defendant must waive his rights voluntarily, "in the sense
that [the waiver] was the product of a free and deliberate
choice rather than intimidation, coercion, or deception." Id.
Second, the defendant must waive his rights "with a full
awareness of both the nature of the right being abandoned and
the consequences of the decision to abandon it." Id. "Only if
the totality of the circumstances `reveals both an uncoerced
choice and the requisite level of comprehension may a court
properly conclude that the Miranda rights have been waived.'"
United States v. Male Juvenile, 121 F.3d 34, 39-40 (2d Cir.
1997) (quoting Moran, 475 U.S. at 421, 106 S.Ct. 1135).
Chen does not contest the voluntariness of his waiver. Indeed,
it is clear from the record that Scandiffio and Dreyer did not
engage in any improper conduct in procuring defendant's waiver,
and therefore, there is no doubt that Chen's decision to waive
his Fifth Amendment privilege was voluntary. See, e.g.,
Colorado v. Spring, 479 U.S. 564, 574, 107 S.Ct. 851, 93
L.Ed.2d 954 (1987) ("Absent evidence that [defendant's] will
[was] overborne and his capacity for self-determination
critically impaired because of coercive police conduct, . . .
his waiver of his Fifth Amendment privilege was voluntary under
this Court's decision in Miranda.") (internal quotations and
Turning to the second prong of the inquiry, I find that Chen's
waiver was knowing and intelligent, under all of the
circumstances. Chen was read the Miranda warnings in Chinese,
in the presence of counsel. Chen's attorney also explained the
Miranda rights to him in Chinese, outside the presence of the
agents. After consulting with his attorney, Chen acknowledged
that he understood those rights and the waiver of rights form,
and he then signed the waiver form. Chen understood that he was
not required to speak to the agents and that anything he did say
could be used against him. Because he was aware of "both the
nature of the right being abandoned and the consequences of the
decision to abandon it," his waiver was knowing and intelligent.
The fact that Zhang may have failed to advise Chen as to the
wisdom of speaking to the agents does not render Chen's waiver
invalid. Under Miranda, a criminal suspect who is subject to
custodial interrogation before his Sixth Amendment right has
attached is entitled to counsel "`to protect the Fifth Amendment
privilege against self-incrimination rather than to vindicate
the Sixth Amendment right to counsel.'" United States v.
Gouveia, 467 U.S. 180, 188 n. 5, 104 S.Ct. 2292, 81 L.Ed.2d 146
(1984). A criminal suspect need not "know and understand every
possible consequence of a waiver of the Fifth Amendment
privilege," but need only understand that "he may choose not to
talk to law enforcement officers, to talk only with counsel
present, or to discontinue talking at any time." Spring, 479
U.S. at 574, 107 S.Ct. 851 (citations omitted). After being read
the Miranda warnings and consulting with his attorney, Chen
understood that he had the right not to speak to the agents.
Zhang fulfilled the role envisioned by the Miranda Court by
"ensur[ing] that his client [had] not been compelled to speak."
Claudio v. Scully, 791 F. Supp. 985, 988 (E.D.N.Y. 1992)
("Scully I"), rev'd on other grounds, 982 F.2d 798 (2d Cir.
1992). Zhang's failure to advise Chen of all the ramifications
of speaking to the agents did not negate the fact that Chen
understood that he had the right not to speak.
Judge Korman rejected a similar argument in Scully I in
denying petitioner's application for a writ of habeas corpus.
There, the petitioner Claudio, a
sixteenyear-old suspected of murder, picked an attorney out of
the yellow pages who urged him to surrender without explaining
to him the seriousness of the charges he faced or his available
defenses. The attorney later advised Claudio to make a statement
to the District Attorney despite the fact that no plea offer
would be forthcoming, and Claudio confessed to the murder. At
the time of the interrogation, Claudio's Sixth Amendment right
to counsel had not attached, and the police did not engage in
any coercive conduct during the interrogation. In rejecting
Claudio's argument that his confession should have been
suppressed because it was the result of his attorney's
ineffective advice, Judge Korman stated that "petitioner was
entitled to the presence of counsel when he was interrogated
only in order to protect the Fifth Amendment privilege against
self-incrimination" and not to protect his Sixth Amendment
rights. Scully I, 791 F. Supp. at 988 (internal quotations and
citations omitted). Accordingly, the petitioner's "voluntary
confession was not subject to suppression merely because his
attorney gave him bad advice." Id.
The conclusion that Chen's Fifth Amendment rights were not
violated is supported by the Supreme Court's recent decision in
Dickerson v. United States, ___ U.S. ___, 120 S.Ct. 2326,
2328, 147 L.Ed.2d 405 (2000). In holding that Miranda was a
constitutionally based decision, the Court rejected a statutory
"totality of the circumstances" test of voluntariness, but
acknowledged that "the requirement that Miranda warnings be
given does not . . . dispense with the voluntariness inquiry."
Id. at ___, 120 S.Ct. 2326, 2336. The Court observed, however,
that "`[c]ases in which a defendant can make a colorable
argument that a self-incriminating statement was "compelled"
despite the fact that the law enforcement authorities adhered to
the dictates of Miranda are rare.'" Id. (quoting Berkemer
v. McCarty, 468 U.S. 420, 433 n. 20, 104 S.Ct. 3138, 82 L.Ed.2d
The Berkemer Court noted the advantages of Miranda's
One of the principal advantages of [Miranda] is the
clarity of that rule. "Miranda's holding has the
virtue of informing police and prosecutors with
specificity as to what they may do in conducting
custodial interrogation, and of informing courts
under what circumstances statements obtained during
such interrogation are not admissible. This gain in
specificity . . . benefits both the accused and the
Berkemer, 468 U.S. at 430, 104 S.Ct. 3138 (quoting Fare v.
Michael C., 442 U.S. 707, 718, 99 S.Ct. 2560, 61 L.Ed.2d 197
(1979)). The "crucial advantage" of having a bright-line rule
would be "substantially undermine[d]" if law enforcement agents
were required to inquire into the quality of the advice provided
by an attorney to a suspect. Id. at 430, 104 S.Ct. 3138.
Law enforcement officers should not be required to "divine a
defendant's motivation for speaking or acting as he did even
though there be no claim that governmental conduct coerced his
decision." Colorado v. Connelly, 479 U.S. 157, 165-66, 107
S.Ct. 515, 93 L.Ed.2d 473 (1986) (reversing suppression of
mentally ill defendant's spontaneous confession where no
coercive police activity occurred). If defendant's argument were
accepted, law enforcement agents would be put in the uncertain
and untenable situation of having to evaluate a suspect's
attorney's performance before interrogating that suspect,
destroying the advantage of the clarity of the Miranda rule.
If the accused has consulted with an attorney and indicated that
he understands the rights he is giving up, no additional inquiry
into the quality of counsel's advice is required.
Suppressing Chen's statements in the circumstances of this
case — where the defendant was read his Miranda rights,
discussed them with his attorney outside the presence of law
enforcement, and acknowledged that he understood the protections
he was giving up in signing the
waiver — "would serve absolutely no purpose in enforcing
constitutional guarantees." Connelly, 479 U.S. at 166, 107
S.Ct. 515. One of the underlying purposes of the exclusionary
rule is to "substantially deter future violations of the
Constitution." Id. (citation omitted). As the law enforcement
agents here did not violate Chen's rights, suppression of the
statements would not serve to deter violations in the future.
In essence, Chen is cloaking a Sixth Amendment ineffective
assistance of counsel claim in Fifth Amendment dress, while
acknowledging that his Sixth Amendment rights had not attached.
His arguments are rejected, and I conclude that the Government
has established by a preponderance of the evidence that Chen
knowingly, intelligently, and voluntarily waived his Fifth
Amendment privilege against self-incrimination.
Defendant's motion is denied. The parties shall appear before
the Court on July 24, 2000, at 4:30 p.m. for a pretrial
conference. The time from June 14, 2000 up to and including July
24, 2000 is excluded, in the interest of justice, pursuant to
18 U.S.C. § 3161(h)(8)(A).