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UNITED STATES v. HUNG KHAC PHAM

February 22, 1993

UNITED STATES OF AMERICA, Plaintiff,
v.
HUNG KHAC PHAM, Defendant.



The opinion of the court was delivered by: WILLIAM H. ORRICK

 Defendant Hung Khac Pham ("Pham") moves to suppress statements he made to government investigators on June 20 and June 22, 1992. Pham claims that those statements were obtained in violation of Rule 5 of the Federal Rules of Criminal Procedure, 18 U.S.C. § 3501, and the Due Process Clause of the Fifth Amendment to the Constitution of the United States. For the reasons stated herein, the Court denies Pham's motion.

 I. FINDINGS OF FACT.

 Based on the declarations and exhibits submitted, and on the testimony given at the hearings on December 9, 1992, and February 10, 1993, the Court makes the following findings of fact:

 A. The June 20 Statement.

 1. Drug Enforcement Administration ("DEA") agents arrested defendant Hoan Thien Le ("Le") on June 18, 1992, as Le was attempting to smuggle heroin into the San Francisco International Airport ("SFO"). Le gave statements to the DEA agents that led to the arrest of three other co-defendants, Phung Kim Nguyen, My Lien Nguyen, and Dung Van Tran ("Tran"). The two Nguyen defendants participated in a plan that led to Pham's arrest.

 2. United States Customs Service ("Customs Service") Special Agents William Wallrapp and Marc Taylor arrested Pham on Saturday, June 20, 1992, at 10:15 p.m., at a bar called "Artichoke Joe's" in San Bruno, California.

 3. Following Pham's arrest, Agents Wallrapp and Taylor took Pham to Room 814 of the Crown Sterling Suites Hotel in Burlingame, California.

 4. The agents and Pham arrived at Room 814 at approximately 10:35 p.m. Pham was handcuffed to a chair in the room.

 5. At approximately 10:45 p.m., Santa Clara County District Attorney Investigator Cal Nguyen proceeded to read the Miranda warnings to Pham in English and in Vietnamese.

 7. After Investigator Nguyen read the Miranda warnings to Pham, he asked Pham whether he understood his rights. Pham responded that he did not understand them.

 8. Investigator Nguyen informed Agent Wallrapp of Pham's response. Investigator Nguyen then proceeded once more to explain the Miranda warnings to Pham. During this second phase of explaining the Miranda warnings, he spoke only in Vietnamese to Pham. This second explanation took approximately fifteen minutes.

 9. At approximately 11:10 p.m., Pham indicated to Investigator Nguyen that he understood his rights and wished to waive them.

 10. Pham then executed a waiver of rights, which was witnessed by Investigator Nguyen and Agent Wallrapp. Investigator Nguyen wrote down the English translation of Pham's waiver statement: "I don't know much of anything but I want to talk to you and if I don't know something I'll just tell you that."

 11. After Pham agreed to waive his rights, Investigator Nguyen stopped writing down notes of what Pham said.

 12. Investigator Nguyen follows a standard procedure whenever he serves as a translator during a custodial interrogation: he writes down anything the suspect says regarding the decision to waive his or her rights; once the suspect has waived his or her rights, he stops taking notes. Investigator Nguyen followed this procedure during the June 20, 1992, interrogation of Pham.

 13. After Pham executed the waiver of rights, he made several statements to Agent Wallrapp and Investigator Nguyen. Pham told them that when one of his couriers arrived in the United States, Pham would contact an Asian male named "David" in New York City. Pham would call David's telephone "pager" and then wait for David to return his call. When David did call, he would instruct Pham to go to New York City. When Pham arrived in New York, he would go to a hotel room, give David the package delivered by the courier, and receive $ 12,000 in return.

 14. At approximately 11:35 p.m., Pham executed a form authorizing Customs Service agents to search his residence at 1333 Gough Street, Apartment 3N, San Francisco. The consent to search form also authorized agents to search Pham's vehicle, a Pontiac Fierro, California license plate number 2WOD827.

 15. Pham executed the consent to search form after being advised of his rights, in English and in Vietnamese, by Investigator Nguyen.

 16. After Pham executed the consent to search, Agent Wallrapp explained to Pham that he wanted him to continue with the delivery to David in New York; in other words, Wallrapp asked Pham to participate in a "controlled" delivery, whereby Customs Service agents could arrest David.

 17. Pham agreed to participate in the "controlled" delivery.

 18. Immediately thereafter, Pham asked the agents for permission to call his sister, who Pham said resided at the apartment described in the consent to search form. The agents allowed Pham to make the telephone call.

 19. During the telephone call, which was made in the presence of the agents, Pham said "watch my kids, I'm going away for a long time."

 20. Once the telephone call was terminated, Pham told the agents that he had lied about everything he had told them and that he did not wish to ...


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