Opinion
05 Civ. 0045 (WHP).
May 2, 2005
Christopher P. Conniff, Esq., Assistant United States Attorney, Office of the United States Attorney for the Southern District of New York, New York, NY.
Alexandra A.E. Shapiro, Esq., Latham Watkins LLP, New York, NY, Attorneys for defendant.
ORDER
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?
A: Yes.
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?
A: Yes.
Q: What did you do after he read it?
A: I asked him does he understand it, he needs me to explain further?
Q: What did Zhao Wu Chen say to you?
A: No.
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 over here.
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.
SO ORDERED.