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U.S. v. CHEN
May 2, 2005.
UNITED STATES OF AMERICA
ZHAO WU CHEN, Defendant.
The opinion of the court was delivered by: WILLIAM PAULEY, District Judge
The defendant, Zhao Wu Chen, is charged with smuggling,
attempting to smuggle and conspiring to smuggle aliens into the
United States, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii),
18 U.S.C. § 2 and 18 U.S.C. § 371. Presently before this Court is
the defendant's motion pursuant to Fed.R.Crim.P. 12(b)(3)(c)
to suppress his post-arrest statements. This Court conducted an
evidentiary hearing on April 21, 2005. For the reasons set forth
below, the defendant's motion is granted.
The defendant was arrested by United States Immigration and
Customs Enforcement ("ICE") agents in the Chinatown area of New
York City early in the morning of August 25, 2004. (Declaration
of Zhao Wu Chen, dated Mar. 3, 2005 ¶ 1; Transcript of
Suppression Hearing, dated Apr. 21, 2005 ("Tr.") at 15.) The
agents transported the defendant to ICE offices at 26 Federal
Plaza in Manhattan for processing. (Tr. at 16.) The defendant
does not speak or understand English and communicated with ICE
agents through Meemee Chin, a Fuchow interpreter/translator
employed by the Department of Homeland Security. (Tr. at 6,
26-40.) At the evidentiary hearing, this Court heard testimony
from two ICE agents and Ms. Chin.
The Government offered an advice of rights form in Chinese
signed by the defendant. (Gov't Ex. 2.) The form contains a
certification by an ICE officer and the interpreter attesting
that the Miranda warnings and waiver were read to the defendant
and that the defendant also read it and signed it in their presence. (Gov't Ex. 2.) Ms.
Chin testified to the following exchange with the defendant
concerning that form:
Q: What did you do after the advice of rights form
was given to the defendant?
A: I asked him does he read Chinese.
Q: What did he tell you?
Q: What happened after he told you yes?
A: Then I told him to read it.
Q: Did it appear to you that he had read it?
Q: What did you do after he read it?
A: I asked him does he understand it, he needs me to
Q: What did Zhao Wu Chen say to you?
Q: No, he didn't need you to
A: To explain further. He understood it.
Q: What happened after that conversation that you
just testified about?
A: Then I said, if you understand, you have to sign
Q: What happened?
A: Then he signed. And I told him to put the date
there, and then the agent write the address.
(Tr. at 31-32.) On questioning by the Court, the interpreter
acknowledged that she never read the foregoing warnings to the
defendant in Chinese even though she signed a certification to
that effect. (Tr. at 39-40.) The Government could not explain why
Homeland Security protocols on the advice of rights form were not
followed. (Tr. at 45.) Moreover, the standard English language
waiver form requires a witness to sign twice: first, to
acknowledge that he understands his rights, and again to waive
those rights and indicate his willingness to answer questions or
make a statement. (Gov't Ex. 3.) In contrast, the Chinese
language form appears to merge the warning and waiver sections.
(Gov't Ex. 2.) Because the defendant signed the form only once, it is unclear whether he understood his rights and then waived
them. (Gov't Ex. 2.) The confluence of the language barrier, the
interpreter's instruction to the defendant to sign the form if he
understood it and the ambiguities inherent in the form do not
allow this Court to conclude that the defendant's waiver was
knowing and voluntary. Thus, the Government has not sustained its
burden. See, e.g., United States v. Male Juvenile,
121 F.3d 34, 39-40 (2d Cir. 1997).
Accordingly, the defendant's motion to suppress his post-arrest
statements to ICE agents on August 25, 2004 is granted.
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