MARIA E. STRATTON

Federal Public Defender

DAVID S. MCLANE

Deputy Federal Public Defender

Suite 1503, United States Courthouse

312 North Spring Street

Los Angeles, California 90012-4758

Telephone (213) 894-4104

Attorneys for Defendant

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

xxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Defendant.

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xxxxxxxxxxxxxxxxxxxxxxxxxx

NOTICE OF MOTION; MOTION TO SUPPRESS EVIDENCE AND MOTION FOR JACKSON V. DENNO HEARING; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF COUNSEL; DECLARATION OF DEFENDANT

[Filed with ex parte application to shorten time.]

Hearing Date: May 4, 1998

Hearing Time: 1:30 p.m.

TO: UNITED STATES ATTORNEY NORA M. MANELLA AND ASSISTANT UNITED STATES ATTORNEY PAMELA JOHNSTON:

PLEASE TAKE NOTICE that the following motion will be heard on May 4, 1998, at 1:30 p.m., before the Honorable Mariana R. Pfaelzer, United States District Judge.

REQUEST FOR HEARING

Defendant, xxxxxxxxxxxxxxxx, by and through his counsel of record, Deputy Federal Public Defender, David S. McLane, hereby requests the Court to schedule a formal evidentiary hearing on the question of the voluntariness of any statement Mr. xxxxxxxx-Mendoza may have made to any Immigration and Naturalization Officer during the investigation of this case, and to suppress any statements Mr. xxxxxxxx may have made on the grounds that they were involuntary, in violation of Mr. xxxxxxxx's Miranda rights, and in violation of 18 U.S.C. § 3501(c).

This motion is based upon the attached Memorandum of Points and Authorities, Declaration of Counsel, all files and records in this case, and any further evidence as may be adduced at the hearing on this motion.

Respectfully submitted,

MARIA E. STRATTON

Federal Public Defender

DATED: July __, 2000 By______________________________

DAVID S. MCLANE

Deputy Federal Public Defender

MEMORANDUM OF POINTS AND AUTHORITIES

STATEMENT OF FACTS

Mr. xxxxxxxx is charged with one count of forcible assault on an Immigration and Naturalization Officer ("INS") on July 29, 1997. He is charged with assault with a deadly weapon, a car, arising out of INS raid to arrest undocumented workers at the Panda Inn restaurant.

On August 7, 1998⁽¹⁾, a Thursday, Mr. xxxxxxxx went with three friends who went to the Panda Inn restaurant to pick up their work checks. The restaurant had been the subject of an INS raid, and the four individuals who went to the restaurant were illegally in the United States, and were no longer employed at the restaurant. (See xxxxxxxx decl., ś 2, see Special Agent Ullrich report attached as Exhibit A to McLane decl.). The truck and the four individuals, unbeknownst to them, were being surveilled by Supervisory Special Agent Karl Ullrich of the INS. (See McLane decl., ś 2; see Ullrich report, Exhibit A). SA Ullrich was at the restaurant because during the INS raid On July 29, 1997, several arrests of illegal aliens occurred, but others had gotten away in a black Ford Taurus. It was the driver of the car that allegedly assaulted SA Chacon. SSA Ullrich was conducting an investigation concerning SA Chacon's use of a weapon--he shot at the car--which occurred during the raid. While investigating the incident, SSA Ullrich noticed that a truck was parked at the restaurant which was the same truck previously described by the Panda Inn manager that Mr. xxxxxxxx and two others were driving after the incident when they came to the restaurant to pick up checks. The manager had identified Mr. xxxxxxxx as one of the persons who may have been in the car involved in the July 29, 1997 incident. (See Exhibit A, SSA Ullrich report).

SSA Ullrich, along with police from the Ontario Police department, stopped the truck carrying the four individuals, and arrested them. The report claims that Mr. xxxxxxxx had an outstanding "administrative" warrant for arrest. They were transported to Ontario Police Department Headquarters, then around 5:00 p.m they were transported to the INS District Office in downtown Los Angeles. (See Exhibit A, SSA Ullrich's report). At about 5:30 p.m., SA Stephanie Fierro, and SA Aaron Wilson interrogated Mr. xxxxxxxx. They gave him some immigration papers to look at, and asked him some immigration questions. There are two "Record of Deportable Aliens" forms for Mr. xxxxxxxx, one which is typed that is incomplete in many respects, and a handwritten one which has additional information and appears to be the result of the interview with Mr. xxxxxxxx. (The former is attached as Exhibit B to the McLane decl., and the latter is attached as Exhibit C to the McLane decl.; see McLane decl., ś 3). Exhibit B, the blank one, and dated August 6, 1997 in the right hand corner, states that,

"Subject was encountered at the Panda Inn, located at 3223 E. Centrelake Dr., Ontario, California. During the execution of a consent search of the Panda Inn for unauthorized employees, subject fled the restaurant from INS agents, got into a vehicle, and assaulted SA Chacon with that same vehicle and escaped. Subject's clets printout, indicates the subject was born in Mexico. A warrant of arrest is requested."

The second record of deportable alien for Mr. xxxxxxxx, dated August 17, 1997, has immigration information in the same narrative portion of the report. During this interrogation, the agents attempted to ask questions of Mr. xxxxxxxx regarding the alleged assault but he declined to answer. (xxxxxxxx decl., ś 3).

Mr. xxxxxxxx remained in INS custody for four days prior to being served with a warrant for arrest of alien. (See McLane decl., ś 4, Copy of Warrant for Arrest of Alien dated August 10, 1997, and served August 10, 1997, Exhibit D). Although supposedly arrested on an administrative warrant for arrest on August 7, 1997 according to SSA Ullrich, this administrative warrant is dated August 10, 1997, four days after Mr. xxxxxxxx-Mendoza was arrested. In the meantime, the INS had already targeted Mr. xxxxxxxx as the perpetrator of the alleged assault. The INS had already purportedly determined:

a. According the Panda Inn Manager Don Chen, Mr. xxxxxxxx, along with two others may have been in the car that struck SA Chacon.

b. On July 31, 1997 SSA Ullrich had obtained the DMV photograph of Mr xxxxxxxx. On August 1, 1997, Don Chen identified Mr. xxxxxxxx' picture as one of the individuals who may have been in the black car.

c. On August 8, 1997, SA Chacon tentatively identified Mr. xxxxxxxx as the man who drove the car that allegedly assaulted him.

d. On August 8, 1997, Ariel Brigido-Leonardo, made a statement that he was one of the individuals in the car with Mr. xxxxxxxx, and that Mr. xxxxxxxx was the driver of the car.

(See FBI SA Lannamann's Summary of Investigation, Exhibit E to McLane decl., ś 5).

After two days at the INS detention facility in San Pedro and very little sleep, Mr. xxxxxxxx-Mendoza was woken up at around 1:00 in the morning in San Pedro, held in a holding tank waiting to be brought up to Los Angeles, until approximately 7:00 a.m., and then brought up at to the Los Angeles District Office at the Federal Building on Los Angeles Street. (See xxxxxxxx decl., ś 4).

Sleepy and tired, he was interviewed again by SAs' Wilson and Fierro, who the first time that day questioned him about immigration--they asked him if about what he wanted to do with immigration, and asked him if he wanted to fight his deportation. They told him he needed to sign the papers if he wanted to be voluntarily deported. Mr. xxxxxxxx stated he wanted to be voluntarily deported, and signed papers requesting a voluntary departure. (See xxxxxxxx decl., 5). He believed he was going to be immediately deported. (See xxxxxxxx decl., ś 5); he did not believe he was in trouble with criminal law, (xxxxxxxx decl., ś 5).

Mr. xxxxxxxx was brought out a second time at 1:20 p.m. and was interrogated by SAs' Fierro and Wilson; Wilson spoke Spanish but it was not very good and Mr. xxxxxxxx has difficulty understanding him. (xxxxxxxx decl., ś 6). This is the interrogation where Mr. xxxxxxxx admitted he drove the black car in the incident at the Panda Inn, and told the agents where to locate the car. (See McLane decl., ś 6). Mr. xxxxxxxx also signed a written waiver of his Miranda rights. (See xxxxxxxx decl., ś 7; see copy of waiver attached as Exhibit F).

Mr. xxxxxxxx signed the waiver, but he did not read the waiver, and he understood his signature under the renunciation section meant that he was confirming his rights to remain silent. (See xxxxxxxx decl., ś 7). He did not want to talk as he declined two days prior on August 7, 1997, but he felt under extreme pressure to talk and believed he was only being questioned for immigration purposes. (See xxxxxxxx decl., ś 8). He was informed by the agents that they already knew it was him; that they already knew everything; that he should tell them everything; that it would be bad for him if he didn't say everything; and that if he told them everything they would help him. (See xxxxxxxx decl., ś 8). As a result of not understanding this could be used in a criminal case, that he was going to be deported, and the pressure from the agents, he answered their questions. (See xxxxxxxx decl., ś 8) If he had known his answers would be used against him in a criminal case, he would not have talked. (See xxxxxxxx decl., ś 8). He subsequently initialed a statement that was read to him in Spanish by another individual, SA Ezequiel Garcia, who spoke Spanish that he could understand better. (See xxxxxxxx decl., ś 9). He initialed the pages--but never had the opportunity to read a Spanish version to ensure its accuracy. (See xxxxxxxx decl., ś 9).

Subsequently, on August 12, 1997, three days later on Tuesday the Report Commencing Criminal Actions indicates Mr. xxxxxxxx was arrested on August 12, 1997. (See McLane decl., ś 7).

II.

ARGUMENT

A. INTRODUCTION.

Before allowing the government to use any of the purported statements, Mr. Pineda asks this Honorable Court to make the following determinations based upon the evidence adduced at the hearing.

1. Whether Mr. xxxxxxxx statement to the authorities should be suppressed because it was made during a delay in arraignment which exceeded the six hour safe harbor under 18 U.S. C. ś 3501(c), where Mr. xxxxxxxx' arraignment was delayed five days so that agents could investigate the case and interrogate Mr. xxxxxxxx.

2. Whether Mr. xxxxxxxx was adequately advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and whether, if he was so advised, he understood those rights, and whether there was a knowing and intelligent waiver of his rights. Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

3. Whether any statements Mr. xxxxxxxx might have made can be said, given the totality of the circumstances, to have been the product of a rational intellect and free will. Townsend v. Sain, 372 U.S. 293, 307-08 (1963); Beecher v. Alabama, 389 U.S. 35, 38 (1967) (per curium), and were not obtained by any direct or implied promises, however slight, or by exertion of any improper influence. Hutto v. Ross, 429 U.S. 28, 30 (1967); Bram v. United States, 168 U.S. 532, 542-43 (1897).

B. MR. xxxxxxxx' STATEMENTS TO INS AGENTS FIERRO AND WILSON MUST BE SUPPRESSED BECAUSE IT WAS MADE DURING A DELAY IN ARRAIGNMENT WHICH EXCEEDED SIX HOURS AND WAS NOT OTHERWISE REASONABLE.

1. Mr. xxxxxxxx' statements are outside the six hour safe harbor as provided Under 18 U.S.C. § 3501Š and must be suppressed as the delay was unreasonable and violates public policy.

Subject to constitutional requirements, the admissibility in federal court of statements by a defendant is governed by 18 U.S.C. § 3501. Section 3501Š is the subsection addressing the effect of delay. It provides:

In any criminal prosecution by the United States or by the District of Columbia, a confession made or given by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law-enforcement officer or law-enforcement agency, shall not be inadmissible solely because of delay in bringing such person before a magistrate or other officer empowered to commit persons charged with offenses against the laws of the United States or the District of Columbia if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession is made or given by such person within six hours immediately following his arrest or other detention: Provided, That the time limitation in this subsection shall not apply in any case in which the delay in bringing such person before the magistrate or other officer beyond such six-hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate or other officer.

The negative pregnant of this subsection is that a confession may be inadmissible solely because of delay if there is a delay in excess of six-hours which is not otherwise reasonable. See United States v. Alvarez-Sanchez, 975 F.2d 1396, 1400-01 (9th Cir. 1992), rev'd on other grounds, 114 S.Ct. 1599 (1994).

In United States v. Wilson, 838 F. 2d 1081 (9th Cir, 1988), for example, the court held:

The purposes embedded in § 3501 -- to prevent confessions extracted due to prolonged pre-arraignment detention and interrogation, and to supervise the processing of defendants from as early a point in the criminal process as is practicable -- are frustrated when the arraignment of a defendant who has been in custody for more than six hours is further delayed for no purpose other than to allow further interrogation of the defendant. If we countenance the police procedure followed here, we give officers a free hand to postpone any arraignment until a confession is obtained. That was not the legislative intent behind § 3501.

Id. at 1087, quoted in Alvarez-Sanchez, 975 F.2d at 1403 (emphasis added in Alvarez-Sanchez). In Alvarez-Sanchez, the court was even more explicit, noting that "a confession may be suppressed [under Section 3501(c)] in order to serve the prophylactic purpose of discouraging officers from unnecessarily delaying arraignments (i.e., from violating Rule 5(a)) as well as to prevent admission of an involuntary confession." Id. at 1403.

In United States v. Van Poyck, 77 F.3d 285, 288 (9th Cir. 1996), the Ninth Circuit noted that statements made after the six hour safe harbor may be excluded solely for delay, but the court need not do so. The court stated that there are two ways to decide whether to admit the statements:

"In one line of cases, we have looked to the reasonableness of the delay, if it is reasonable, the statement is admissible.... In another line, we have looked to public policy concerns such as discouraging officers from unnecessarily delaying arraignments, preventing admission of involuntary confessions, and encouraging early processing of defendants ...." d. at 289.

In Van Poyck the court held that although the six hour safe harbor was exceeded before the defendant made incriminating statements, the statements need not be suppressed. Id. at 289-90. Van Poyck was arrested on a Friday afternoon but not arraigned until the following Monday; over the weekend he made several incriminating statements on phone calls he made from the MDC. Id. at 287. The Court upheld the admission of the statements because the weekend delay was reasonable due to unavailability of the magistrate, and that public policy did not require suppression because law enforcement did not delay arraignment, acted properly, and did not intentionally postpone arraignment to interrogate the defendant, indeed, Van Poyck's statements were not made to law enforcement but to friends. Id. at 289-90.

Thus, the rule in the Ninth Circuit, therefore, is that a statement made during an excessive delay in arraignment is subject to suppression even if it was voluntary, unless the government proves (a) the delay was unreasonable and (b) public policy favors admission. Section 3501(c), like the Miranda rule, is a prophylactic rule which is intended simply to discourage and sanction any unnecessary delay in arraignment which exceeds six hours.

In the instant case, assuming the time counts from Mr. xxxxxxxx' initial arrest by INS on August 7, 1997 (when the time commences will be addressed in the next section), at 3:00 p.m., on a Thursday, and Mr. xxxxxxxx was not brought to court until August 12, 1997, the following Tuesday, the delay requires suppression in this case. This is not just a weekend delay due to unavailability of a magistrate as in Van Poyck, clearly Mr. xxxxxxxx could be brought to court on Friday, two days after his arrest. He was not even brought to court on Monday, August 11, 1997. Thus, the statement must be suppressed because the delay was unreasonable. Secondly, public policy favors suppression in this case: the delay clearly allowed INS to gather facts, develop its case against Mr. xxxxxxxx, and hold him for repeated rounds of interrogation. The following facts show the public policy favors suppression:

a. Mr. xxxxxxxx was held in custody without access to the outside world or an attorney, incommunicado, for six days--including the day of his arrest--prior to his arraignment.

b. Mr. xxxxxxxx was arrested on a Thursday afternoon; while it would have been difficult to bring him to court that day and overnight delays are reasonable, there was no reason not to arraign him on Friday.

c. When Mr. xxxxxxxx was interrogated on the first day, the Record of Deportable Alien, see Exhibit B, and dated August 6, 1997, the day before he is arrested, indicates that the INS has already determined he committed the assault. He then refuses to discuss the incident when he is interrogated on August 7, 1997, the first day, and then is held for two more days until Saturday, August 9, 1997, where he is then interrogated and makes a statement in which he admits he is the driver of the car and tells them where the car is located. Only after he makes admissions is he then brought to court.

Clearly, the facts establish that the delay allowed the police to get an incriminating statement against the chief suspect where if they had brought him to court on Friday, August 8, 1997, they would not have gotten that statement. Thus, public policy favors suppression of a statement where the delay allowed the INS to obtain a statement they would not have otherwise obtained. See, e.g. Wilson, id. at 1087 ("If we countenance the police procedure followed here, we give officers a free hand to postpone any arraignment until a confession is obtained . . . .)

2. The Entire Period Mr. xxxxxxxx Was Held In Custody After Being Arrested at 3:00 p.m. on August 7, 1997 Is Delay Which Is Subject To The Provisions Of 18 U.S.C. § 3501(c).

As a supervisory rule governing the admissibility of evidence in federal courts, the Supreme Court had held the McNabb-Mallory rule inapplicable to confessions obtained by state officers and used in state cases. See Gallegos v. Nebraska, 342 U.S. 55, 63-65 (1951). In Alvarez-Sanchez, 114 S. Ct. at 1604, the Supreme Court held there is not a duty to present an individual to a United States Magistrate Judge unless the person is in custody for a transgression of federal law. ("If a person is arrested and held on a federal charge by 'any' law enforcement officer-federal, state, or local-that person is under 'arrest or other detention' for purposes of § 3501Š and its 6-hour safe harbor period. If, instead the person is arrested and held on state charges, § 3501Š does not apply, and the safe harbor is not implicated.") See also United States v. Rowe, 92 F. 3d 928 (9th Cir. 1996)(six hour safe harbor did not apply to confession made by defendant in custody on state charge and not in federal custody). In Anderson v. United States, 318 U.S. 350 (1943), on the other hand, the Court held the rule did apply to a confession used in a federal prosecution where there was a "working arrangement" between federal and state officers. See id. at 356.

Here, Mr. xxxxxxxx was clearly arrested for the federal assault on August 7, 1997, but was not brought to court until August 12, 1997, way in excess of the six hour safe harbor period. The government will contend in its opposition that he was not arrested until August 12, 1997, the date when the complaint was filed, and the date in Agent Lannemann's Report Commencing Criminal Action that he arrested Mr. xxxxxxxx. The government will also contend that SSA Ullrich did not arrest him for the assault on August 7, 1997, but only arrested him as he states on his report, on an outstanding "administrative" warrant for arrest. Whatever is meant by an "administrative" warrant for arrest, and the warrant for arrest on the assault on August 12--the INS and FBI can label their actions however they want--the facts demonstrate the truth that Mr. xxxxxxxx was arrested on August 7, 1997 because of his alleged role in the assault. By calling it an administrative arrest for illegally being here, the INS could hold and detain him until they extracted a statement from him. It was only after a statement was obtained, on August 9, 1997, that he was taken to Court. This is the classic case referred to in Anderson of collusion or collaboration of federal and State authorities (in this case federal authorities with itself) to delay an arraignment adverse to the defendant's interests. We have the FBI and INS collaborating with each other, and the INS using both its administrative and criminal powers to indefinitely hold Mr. xxxxxxxx on an alleged "administrative warrant" until a statement was obtained--when it was the federal authorities plan all along to charge Mr. xxxxxxxx with the assault. The following facts establish that the INS, a federal agency; collaborated to deprive Mr. xxxxxxxx of his statutory rights:

a. SSA Ullrich and the INS was investigating the assault prior to Mr. xxxxxxxx' August 7, 1997 arrest: the INS interviewed the Panda Inn manager who said that Mr. xxxxxxxx may have been in the black car; the manager identified Mr. xxxxxxxx out of a photo spread; and the INS surveilled the restaurant on August 5, 1997, the day Mr. xxxxxxxx was suppose to show up to pick up his check but Mr. xxxxxxxx did not show up until after INS surveillance was terminated. If Mr. xxxxxxxx was being investigated just for being illegally here, and the INS arrested him only on an administrative warrant for being here illegally, the INS sure expended quite an amount of energy just to catch one illegal alien. The reality is clear--they arrested him for his purported role in the assault.

b. SSA Ullrich claims he arrested Mr. xxxxxxxx on an outstanding administrative warrant outstanding, but the copy of the warrant the defense has is dated August 10, 1997, and was served August 10, 1997 on Mr. xxxxxxxx--three days after his arrest. (See warrant, Exhibit D). Surely the INS cannot be claiming it arrested Mr. xxxxxxxx on an warrant that was not outstanding until three days after his arrest. Unless the INS has another warrant that has not been produced in discovery, they were holding Mr. xxxxxxxx on an nonexistent warrant; or the truth that they arrested him for a criminal assault.

c. The blank record of deportable alien, dated August 6, 1997, Exhibit B, dated August 6, 1997, shows that they considered Mr. xxxxxxxx as the perpetrator of the assault by August 6, 1997, the day before he was arrested. It is clear all along that Mr. xxxxxxxx was going to be charged with the assault prior to August 7, 1997, and that his arrest on the "administrative warrant", if that was the case, was done to gain the INS time to interrogate Mr. xxxxxxxx, and gather further evidence--such as the tentative identification by SA Chacon, the victim on August 8, 1997. (See Exhibit E, SA Lannemann's report).

d. When Mr. xxxxxxxx was arrested on August 7, 1997, he was brought to downtown Los Angles where he was not just questioned on his status, but Agents Fierro and Wilson attempted to question him about the alleged assault, but he declined to do so. They brought him down for another round of questioning, and when they got a statement, they then filed criminal charges, and brought him to court. This timing is not coincidental.

What we have here is clearly either an arrest for the assault, or collaboration and collusion by the INS to avoid the label of "arrest" for the assault despite the fact he was being held and brought for questioning on two occasions for that purpose, so the INS could attempt to obtain a statement against Mr. xxxxxxxx. Clearly, substance over the form, and the reality of the obvious ruse by the INS requires a finding that Mr. xxxxxxxx had been held on the criminal charges since August 7, 1997, and this delay is unreasonable and violates public policy. This Court should not countenance this shell game perpetrated by the INS, and should suppress the statement.

C. MR. xxxxxxxx' STATEMENTS WERE OBTAINED IN VIOLATION OF HIS MIRANDA RIGHTS.

As stated by the Supreme Court's decision in Miranda,

"If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.Id. at 475.

In Moran v. Burbine, 475 U.S. 412 (1986), the Supreme Court affirmed the high level of proof required to find a waiver of Miranda rights, stating that:

"First, the relinquishment of the right must have been voluntary in the sense that it was a product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with full awareness, both of the nature of the right to be abandoned and consequences of the decision to abandon it.

Id. at 421.

"If the individual in any manner at any time prior to or during the questioning that he wishes to remain silent, the interrogation must cease . . . . If the individual states that he wants an attorney, an interrogation must cease until an attorney is present." Miranda, 384 U.S. at 473-74. In Miranda, the court stated that "any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege". Id. at 476. The Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 464 (1938), stated that a court must "indulge every reasonable presumption against waiver of fundamental constitutional rights."

While Mr. xxxxxxxx admittedly signed the waiver, the government cannot establish a knowing and intelligent waiver in this case because his waiver was not made with "full awareness, both of the nature of the right to be abandoned and consequences of the decision to abandon it", and was not the "product of a free and deliberate choice rather that intimidation, coercion or deception ...." Miranda, id. at 421.

His waiver was not knowingly and intelligently made. With respect to his background, Mr. xxxxxxxx is a young, unsophisticated individual, who as working as a cook at the Panda Inn (see xxxxxxxx decl., ś 1); he is not a veteran of the criminal system--he only has one entry on his rap sheet in 1994 charging a misdemeanor hit and run, (see McLane decl., ś 8; see copy of rap sheet, Exhibit G); and he was born and raised in Mexico, and is not fluent in English. (See Exhibit B, Record of Deportable Alien; see xxxxxxxx decl., ś 1). With respect to the facts of this case, Mr. xxxxxxxx was not informed either at his first interview on August 7, 1997, or at his second interview on August 9, 1997, the purpose of the interview. He thought it just related to immigration, he did not understand or know that the INS was investigating a criminal case. He though he was going to be voluntarily deported; indeed when he was brought up from San Pedro on August 9, 1997, and when he was first interviewed by SAs' Fierro and Wilson, they asked him about his papers and about whether he wanted voluntary departure. He signed the papers--thinking he was going to be immediately deported. He did not think he was in any trouble with criminal law. In the second interview, they told him it would be better for him if he talked, and it would be bad for him if he did not--as he states he felt extreme pressure to talk. Further, the INS waiver form says that anything could be used against him in court, administrative or INS proceeding--it says nothing about criminal proceedings. They never told him that it could be used against him in a criminal proceeding. Mr. xxxxxxxx' naivete is evidenced by the fact that he thought by signing the form he was confirming his right to remain silent--and that he only talked because he felt pressured to doing so, and because he thought they would help him if he talked.

Further, by not informing him that he was looking at criminal charges, by interviewing him after he signed the voluntary departure papers and told him that if he signed them he would be deported, without telling him when, of course, they lulled him into thinking that if he answered their questions he would be deported, and that he would not be facing criminal charges. He did not believe he was in any criminal trouble. As he states, he would not have talked if he thought he was going to be facing criminal charges. For these reasons, his statements were obtained in violation of his Miranda rights.

D. MR. xxxxxxxx' STATEMENTS ARE INVOLUNTARY.

When the voluntariness of a statement is brought into question, due process requires that the trial judge determine the voluntariness of the confession outside the presence of the jury Jackson v. Denno, 378 U.S. 368 (1964). Title 18, U.S.C. § 3501(b) sets forth some of the factors the trial judge should consider in determining voluntariness:

(b) the trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to may any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession.

The presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession."

When fundamental rights are allegedly waived, the Supreme Court has suggested that courts use a strict standard and "indulge in every reasonable presumption against waiver . . ." Brewer v. William, 430 U.S. 387, 404 (1977). In determining whether there has been a voluntary and intelligent waiver of a known right, the court must consider the particular facts and circumstances surrounding the case, including the background, experience and conduct of the accused. United States v. Rodriguez-Gastelum, 569 F.2d 482, 488 (9th Cir.), cert. denied, 436 U.S. 919 (1978); David v. North Carolina, 384 U.S. 737 (1966).

In Townsend v. Saine, 372 U.S. 293, 307-08 (1963), the court stated in determining whether a statement is voluntary, the court should look at whether, given the totality of circumstances, the statements were the produce of rational intellect and free will. See also Schneckloth v. Bustamante, 412 U.S. 218, 226 (1973); Beacher v. Alabama, 389 U.S. 35, 38 (1967) (per curium). If statements were obtained by any direct or implied promises, however slight, or by the exertion of any improper influence, see Hutto v. Ross, 429 U.S. 28, 30 (1967), Bram v. United States, 168 U.S. 532, 542-43 (1897), that impacts on the issue of whether statements were voluntary. The government bears the burden of proof, by a preponderance of the evidence, that on inculpatory statement was voluntary made. Lego v. Twomey, 404 U.S. 477 (1972). A confession must be extracted by any direct or implied promise, however slight, or by the exertion of any improper influence. Malloy v. Tingle, 658 F.2d 1332, 1334 (9th Cir. 1981); see also United States v. Powe, 591 F.2d 833, 839-42 (D.C. Cir. 1987). Subtle psychological coercion, rather than express threats, is often more effective and overbearing on a rational intellect and free will. Tingle, 658 F.2d at 1335. In Spano v. New York, 360 U.S. 315 (1958), the court mentioned as one factor in determining whether a confession is involuntary, is the use of trickery. Id. at 323. In that case, the State brought in a childhood friend of the defendant in order to convince him to confess, and the Court stated: "An open foe may prove a curse, but a pretended friend is a worse."

In the instant case, the subtle pressure, trickery, and coercion applied by INS agents Fierro and Wilson, who had more than a passing interest in obtaining a statement against the person they thought harmed a fellow INS officer, makes the statements involuntary:

a. The statements were made by Mr. xxxxxxxx after declining to discuss the incident the first interview on August 7, 1997.

b. The statements were made the third day of custody when Mr. xxxxxxxx should have been brought to the magistrate the day before, where he would have had access to counsel.

c. Mr. xxxxxxxx was extremely fatigued and tired since he had been up since 1:00 am in the morning, and had not slept all night.

d. The statements were made where the agents at no time advised him he faced criminal charges, and indeed earlier that day told him if he wanted to be deported he should sign the papers requesting a voluntary departure, thereby lulling him into a false sense of security.

e. After he signed the waiver, they pressured him into talking by telling him that they already knew everything; that they knew it was him; that if would be good for him if he talked, and bad for him if he did not. An unsophisticated person with little experience in the criminal justice system--he talked believing he was not facing any trouble; and that he would be deported to Mexico. As he states, he would soon be deported to Mexico. As he states he would not have talked if he had known he faced criminal charges.

The INS wore Mr. xxxxxxxx down after three days in custody; exhausted, tired and fatigued, with the belief he would go home, he agreed to talk. His statements were not the product of free will and should be suppressed.

IV.

CONCLUSION

For the foregoing reasons, Mr. xxxxxxxx requests that any and all post-arrest statements be suppressed as they were made in violation of Miranda and were not voluntary. Mr. xxxxxxxx further requests that any incriminating statements be suppressed independently, as they were made in violation of 18 U.S.C. § 3501(c), and requests that any and all fruits of the statements

be suppressed as well. Wong Sun v. United States, 371 U.S. 471, 488 (1963).

Respectfully submitted,

MARIA E. STRATTON

Federal Public Defender

DATED: July __, 2000 By______________________________

DAVID S. MCLANE

Deputy Federal Public Defender

mclane\xxxxxxxx\ntc.mtn

DECLARATION OF DAVID S. MCLANE

I, David S. McLane, hereby state and declare as follows:

1. I am a Deputy Federal Public Defender in the Central District of California appointed to represent TEODORO xxxxxxxx- in the above-entitled action.

2. The information contained in the Statement of Facts section of this motion was provided to me by a review of the discovery materials provided by the government in this matter, and by Mr. xxxxxxxx. A signed copy of his declaration will be filed prior to the hearing in this matter. Attached as Exhibit A is a true and correct copy of report by Supervisory Special Agent Karl Ullrich of the INS, obtained from the discovery materials, as Exhibit A.

3. Attached as Exhibits B and C respectively, are true and correct copies of "Record of Deportable Alien" for Mr. xxxxxxxx obtained from the discovery material provided by the government.

Exhibit B is dated August 6, 1997 in the lower left hand corner, and Exhibit C is dated August 7, 1997.

4. Attached as Exhibit D is a true and correct copy of a Warrant for Arrest of Alien, dated August 10, 1997, and served on Mr. xxxxxxxx on that same date. I obtained the document from Mr. xxxxxxxx.

5. Attached as Exhibit E is a true and correct copy of SA Lannemann of the FBI Summary of Investigation, which was provided to me in discovery.

6. I have reviewed the statement that Mr. xxxxxxxx signed after his interrogation by INS Special Agents Stephanie Fierro and Aaron Wilson. In the statement Mr. xxxxxxxx admits he was the driver of the car involved in the incident with Special Agent Larry Chacon, and told the agents where to locate the car.

7. I have reviewed the District Court file in this matter and determined that the Complaint was filed on August 12, 1998, and the Report Commencing Criminal Action indicates that Mr. xxxxxxxx was arrested on August 12, 1997.

8. Attached as Exhibit G is a true and correct copy of Mr. xxxxxxxx' rap sheet provided in discovery from the government, and the only entry I can discern is one for a violation of California Vehicle Code 20002, hit and run, property damage. I do not know the disposition of the charge.

I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

DATED: July __, 2000

______________________________

DAVID S. MCLANE

Deputy Federal Public Defender

DECLARATION OF TEODORO xxxxxxxx-

I, Teodoro xxxxxxxx-xxxxxxxx, hereby state and declare as follows:

1. I was born on October 29, 1975, and raised in Mexico, and I came to the United States to seek a better life at the age of 14. I attended school here up to the twelfth grade, and took English classes. I can speak and understand a little English, but it is broken, and my primary language is Spanish. In my last job I worked at the Panda Inn in Ontario, California as a fryer.

2. On August 7, 1997, I went with some acquaintances who worked at the Panda Inn to pick up their last work paychecks. I had already picked up my last paycheck, and I waited in the truck while the others went inside the restaurant. When they returned to the car we left, but we were pulled over by the Ontario Police Department and the Immigration and Naturalization Service ("INS"), and we were taken to the Ontario Police Department.

3. I was transported to downtown Los Angles where two INS Agents, Stephanie Fierro and Aaron Wilson, interrogated me. They asked me immigration questions like where was I born, when did I enter the United States, who are my parents, but they also started asking me about the incident at the Panda Inn on July 29, 1997, and I did not want to talk about it and I told them so. They did not tell me I was being investigated for a criminal assault on an INS officer. I believed I was imprisoned only for being illegally here.

4. I was then taken to San Pedro, where I stayed in custody. I did not call anyone on the outside, and did not see an attorney. I did not get much sleep there--on August 9, 1997, a Saturday, they woke me up at 1:00 a.m. or so in the morning, and kept me in a room until about 7:00 a.m. or so, and then I was taken to downtown Los Angeles again. I did not get any sleep and was extremely tired when I arrived.

5. I was initially interrogated by SA Fierro and SA Wilson on immigration matters. They asked me whether I wanted to fight my deportation, and that if I did not want to fight it I would be deported. They told me I had to sign the papers requesting a voluntary departure which I believe I did. I believed as a result I was going to be immediately deported. They did not say anything at this time about criminal charges.

6. I was brought out a second time again by SA Fierro and SA Wilson, and they again started questioning me. It was mainly by Mr. Wilson who spoke some Spanish but I had a difficult time understanding him.

7. I signed a written waiver which is attached as Exhibit F. They read the waiver to me, and I did not read it myself. I understood it to mean when I signed it that I was confirming my right to remain silent, not that I was waiving my rights, including the right to remain silent.

8. I did not want to talk about the incident at the Panda Inn, but after I signed the waiver they were pressuring me to talk--telling me to the effect that they already knew everything, that they knew it was me; that I should tell them everything, that it would be worse for me if I didn't say everything; and that if I told them all the details that they would help me. I then relented and answered their questions. I did not believe what I said could hurt me, they told me it would help me. I did not know that they were investigating me on a criminal case, and they did not tell me. I thought after I answered their questions that I would be deported. If I had known that my answers were being used against me criminally, I would not have said anything.

9. After they were finished, they typed up a statement. Another agent, SA Esquivel Garcia, who spoke a lot better Spanish, read the statement to me, and I signed it. I did not read it, and a Spanish version was never provided to me so I

could carefully review it. After I signed it, SA Garcia told me that I might have criminal problems. It was the first time I had an idea I might have criminal problems.

This statement was translated to me in Spanish by Socorro Corona, a certified court interpreter. I declare under penalty of perjury the foregoing is true and correct to the best of my ability.

Dated: April___, 1998 By ____________________________

xxxxxxxxxxxxxxxxxxxxxxxxxxx

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1. The Statement of Facts is based on the Discovery provided to date, the declaration of David S. McLane, and the declaration of Teodoro xxxxxxxx-xxxxxxxxxx.