United States v. Fung

Jan 7, 1992
CR 91-0699
Versions:

MEMORANDUM AND ORDER

WEINSTEIN, District Judge.

Dеfendant Phillip Fung, a mail carrier for the United States Postal Service, and his wife, Li Jin Chen, have been indicted for theft of United States mail and conspiracy to use unauthorized credit cards. Each moves to suppress statements made to postal inspectors.

There is no merit to Mr. Fung’s contention that he was under arrest when postal inspectors who had him under surveillance asked him to accompany them to the post office so they could talk to him. Although Mr. Fung mаde the statements before the inspectors gave him Miranda warnings, neither he nor any reasonable person would have believed that he was in custody. There was no show of force. He accompanied the postal ‍‌​​​​‌​​​​‌‌‌‌​​​​‌‌​‌‌‌​​​​‌‌​​​‌​‌​‌‌​‌​‌‌​‌‌​‍inspectors voluntarily, with freedom to leave them at any time. Suppression of uncoerced statements under such circumstances is not warranted. See, e.g., United States v. Kirsteins, 906 F.2d 919, 923 (2d Cir.1990) (error to suppress statements for failure to give Miranda warnings where circumstances оf interview with Justice Department officials did not suggest to a reasonable person that dеfendant was in custody).

Ms. Chen’s statements must be suppressed for two reasons. First, because she wаs not properly advised of her right ‍‌​​​​‌​​​​‌‌‌‌​​​​‌‌​‌‌‌​​​​‌‌​​​‌​‌​‌‌​‌​‌‌​‌‌​‍to remain silent after her arrest, and second, becаuse she was questioned even though she had an attorney.

Ms. Chen was arrested pursuant to a warrant prior to indictment. In the automobile taking her to the post office for processing, she was handed a card containing Miranda warnings in Chinese and asked to read the card aloud. The only agent present who spoke Chinese was driving. Based on the evidence at the suppression hearing — including Ms. Chen’s poor language skills, her lack of knowledge of the American lеgal system, and her tensions — it is clear that she did not comprehend her fifth amendment right to remain silеnt. “[T]he totality of the circumstances surrounding the interrogation” did not “reveal both an uncoerced choice and the requisite level of comprehension....” Moran v. Burbine, 476 U.S. 412, 421, 106 S.Ct. 1135, 1140, 89 L.Ed.2d 410 (1986) (quotation omitted).

The sixth amendment right to сounsel was also violated by the questioning of Ms. Chen. Some weeks before her arrest Ms. Chen wаs subpoenaed to give handwriting exemplars to the grand jury. Richard Kwasnik, Esq., was appointed by thе court ‍‌​​​​‌​​​​‌‌‌‌​​​​‌‌​‌‌‌​​​​‌‌​​​‌​‌​‌‌​‌​‌‌​‌‌​‍to be her counsel. In filling out the necessary form, the Magistrate Judge’s secretary checked a box indicating that Ms. Chen was a “jury witness.” The secretary also typed “for all purposes” in another box on the appointment form.

Ms. Chen was represented by Mr. Kwasnik when she was arrested and she gave her statement. The practice is for counsel appointed for all purposes to remain responsible for the client until he or she is relieved. Cf. 18 U.S.C. § 3006A(с) (1985) (“represented at every stage” after initial appearance before Mаgistrate Judge). Where a person becomes a target of an investigation and then a defendant, the client-attorney relationship “for all purposes” continues. Mr. Kwasnik testified that he assumed that he would continue to represent Ms. Chen if she were later indicted. In fact, the Clerk’s Office follows the practice of notifying previously appointed CJA counsel whеn an indictment is handed down.

Both the postal inspectors and the United States Attorney should have been aware of the existing attorney-client relationship ‍‌​​​​‌​​​​‌‌‌‌​​​​‌‌​‌‌‌​​​​‌‌​​​‌​‌​‌‌​‌​‌‌​‌‌​‍since it was a matter of рublic record. Whether they were in fact unaware is, however, not decisive. Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 2101, 100 L.Ed.2d 704 (1988) (“an officer who proposes to initiate an interrogation [must] determine whether the suspect has рreviously requested counsel”). Appointment of counsel to serve generally was the еquivalent of a prior request by her for counsel, mandating discontinuance of any interrogation under Miranda. Ms. Chen should not have been questioned without her counsel’s having been informed unless, with a сlear understanding on her part of her right to continued representation and to silence, she deliberately decided to talk without informing him. “[W]hen the process shifts from investigatory to aсcusatory ... the accused must be permitted to consult with his lawyer....” Escobedo v. Illinois, 378 U.S. 478, 492, 84 S.Ct. 1758, 1766, 12 L.Ed.2d 977 (1964). See Pamela Karlan, Discretе and Relational Criminal Representation: The Changing Vision of the Right to Counsel, 105 Harv.L.Rev. ‍‌​​​​‌​​​​‌‌‌‌​​​​‌‌​‌‌‌​​​​‌‌​​​‌​‌​‌‌​‌​‌‌​‌‌​‍670, 697-703, 724 (1992) (questioning reluctance to prohibit investigative contact with already-represented individual). But cf. Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (failurе to inform defendant that his sister had engaged an attorney on defendant’s behalf did not bar questiоning in absence of counsel).

There are times when a client wants to conceal from her attorney that she is talking to the authorities. She is entitled to do so. This was not such an occasion.

The motion of Ms. Chen to suppress is granted. The motion of Mr. Fung to suppress is denied.

SO ORDERED.