United States v. Pimentel, 78 Cr. 234 (GLG).

• Decision Date: 06 November 1978
• Docket Number: No. 78 Cr. 234 (GLG).,78 Cr. 234 (GLG).
• Citation: 459 F. Supp. 923
• Parties: UNITED STATES of America, Plaintiff, v. Estanislao PIMENTEL, Defendant.
• Court: U.S. District Court — Southern District of New York

459 F. Supp. 923

UNITED STATES of America, Plaintiff, v. Estanislao PIMENTEL, Defendant.

No. 78 Cr. 234 (GLG).

United States District Court, S. D. New York.

November 6, 1978.

Robert B. Fiske, Jr., U. S. Atty., New York City, for plaintiff by Don D. Buchwald, Asst. U. S. Atty., New York City.

Beldock, Levine & Hoffman, New York City, for defendant by Elliot G. Sagor, New York City, of counsel.

OPINION

GOETTEL, District Judge.

Defendant Estanislao Pimentel has moved to suppress statements he made to Assistant United States Attorney (AUSA) Denise Cote during a post-indictment interview. He alleges that the statements were elicited in violation of both the Fifth and Sixth Amendments. The Court held an evidentiary hearing on the motion on September 13, 14, 15 and 21, 1978, and the evidence established the following facts.

Facts

Pimentel was indicted on April 7, 1978 and charged, along with others, with participation in a fraudulent income tax refund check scheme. At that time, as he was in the Dominican Republic and technically, at least, a fugitive, a warrant was issued for his arrest. By July 20th, Pimentel had returned to the United States, and on that day, three Internal Revenue Service (IRS) agents served the warrant and arrested him after they had located him in his apartment, hiding in a closet. The defendant was read his Miranda warnings in English (the evidence showed that the defendant has some knowledge of English but is more proficient in Spanish) and was shown and had read to him his arrest warrant. Before being taken from the apartment, Pimentel was allowed to dress in clothing chosen for him by his "common law" wife.

The defendant was taken from his apartment at approximately 11:00 p. m. and driven directly to the Metropolitan Correction Center (MCC). No stop for processing or interrogation was made at IRS offices. He was logged in at the MCC at 11:35 and put through the normal processing procedures. The next morning Pimentel apparently chose to forego breakfast (he testified that at the time he was not hungry). He made no request for food while at the MCC, or later to the IRS agents or the AUSA.

At 10:05 a. m., the defendant was taken from the MCC first to the United States Marshal's office for processing (fingerprinting, photographing etc.), and then to the United States Attorney's Office where he was interviewed by AUSA Cote. Throughout the questioning, which began at 10:50 a. m., an interpreter was present who translated the proceedings into Spanish for Pimentel. AUSA Cote advised the defendant that an indictment had been filed against him, described the crimes charged, and handed the interpreter a copy of the indictment so that he could translate aloud all counts (numbers 1, 32-36) in which the defendant was named. The defendant was also handed the copy to read himself. He was informed that he would soon be brought before a Magistrate who would fix bail in the case (the interview actually took far longer than usual, about two hours, due to the necessity for translation throughout). Prior to asking any questions, AUSA Cote advised the defendant of his constitutional rights, and questioned him as to his understanding of them. The Court finds that the following warnings were given:

Cote: Before you say anything let me finish advising you of your rights. You have a constitutional right to refuse to answer any of my questions. Do you understand that?

Pimentel: I have the right to refuse to answer any question. If you say a question I know to be true I'll say yes. If not I'll say no.

Cote: You can refuse to answer any question. Do you understand that?

Pimentel: Yes.

Cote: You have an absolute right to remain silent and if you chose sic to answer any questions, any statements you do make can be use against you in a court of law. Do you understand that?

Pimentel: Yes.

Cote: You have a right to consult an attorney and to have that attorney present during this interview. Do you understand that?

Pimentel: Yes.

Cote: If you do not have funds to retain an attorney, an attorney will be appointed to represent you and you do not have to answer any questions before this attorney is appointed and you can consult with this attorney. Do you understand that?

Pimentel: Yes.

Cote: You may pick and chose sic those questions you wish to answer, and you may stop at any time. Do you understand that?

Pimentel: Yes.

Cote: Understanding your rights, are you prepared to answer questions without an attorney?

Pimentel: Yes.

Cote: You've heard the charges against you. Do you have a statement to make?¹

Pimental at no time during the interview requested an attorney, nor had he previously retained an attorney.

Following this exchange, AUSA Cote asked, and Pimentel answered, various questions concerning the charges. The defendant's answers were responsive, sometimes providing more information than called for, and they were in content essentially exculpatory. Although he admitted to performing certain acts, which were already known to the Government, he denied having any intent to violate, or knowledge of any violation of, the law. No admission of a crime was made. The defendant now alleges that he was confused and upset during the interview, but the testimony elicited at the hearing indicates that, at least in his outward appearance, he was calm and relaxed. While the defendant did remain in handcuffs during the interview, contrary to usual United States Attorney's Office practice, the defendant did not seem to be in discomfort from them, nor did he complain about them in any way. No threats or promises were made by the AUSA to the defendant during the course of the interview, nor was any trickery used. The interview concluded at 1:40 p. m. At 3:55 p. m. the defendant was presented before Magistrate Sinclair, where he was again advised of his rights. At no time before the Magistrate did the defendant claim that he did not understand his rights or the nature of the proceedings against him.

Discussion

Pimentel's most serious contention is that his right to counsel under the Sixth Amendment has been violated. Such right attaches when adversary judicial proceedings have begun. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). As the Court stated in Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1240, 51 L.Ed.2d 424 (1977), "once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him." Adversary judicial proceedings against Pimentel began upon the filing of his indictment. Thus, at the time of his AUSA interview, his Sixth Amendment right to counsel had clearly attached.

Even when a defendant's Sixth Amendment rights have attached, however, he may still validly waive his right to counsel. United States v. Lord, 565 F.2d 831, 839-840 (2d Cir. 1977); United States v. Armedo-Sarmiento, 545 F.2d 785, 792 (2d Cir. 1976). But see United States v. Massimo, 432 F.2d 324, 327 (2d Cir. 1970) (Friendly, J., dissenting). For a waiver to be found valid the burden is placed upon the Government to prove that it was both knowingly and voluntarily given. This burden has been held to be heavier than that which is required in showing a voluntary waiver in the Fifth Amendment context. United States v. Lord, supra; United States v. Satterfield, 558 F.2d 655 (2d Cir. 1977). It was held in Lord, supra at 839, that "when Government agents or prosecutors choose to interrogate an indicted, unrepresented defendant, they assume the heavy burden of proving that any inculpatory statements thus obtained were voluntarily given after a valid waiver of the right to counsel."

Justice Black, writing for the Supreme Court, in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1937) stated: "A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused." In order for an accused to be able to make a knowledgeable waiver he must first be "informed of the nature and cause of the accusation." In United States ex rel. Lopez v. Zelker, 344 F.Supp. 1050 (S.D.N.Y.1972) (Frankel, J.), the court held that this requires informing a defendant against whom an indictment has already been filed about the existence of that indictment, prior to asking him whether he wishes to waive his right to counsel. If such information is not provided, an accused cannot make an intelligent, knowing waiver of his right, and any waiver made under such circumstances would be ineffective. See id.

In this case, Pimentel was informed by the AUSA that he was under indictment and was given a copy of it to read. He claims, however, that due to his very limited knowledge of English he was unable either to read the indictment or to understand the nature of it.² This Court does not agree. Pimentel, in addition to receiving a copy of the indictment to read, also had the relevant parts of it read to him in Spanish. The interpreter read to him the caption of the indictment, the body of the conspiracy count (Count I), all overt acts in which he was named, and all of the substantive counts in which he was charged. The overt acts in which only other defendants were named were summarized and explained to him. Communication of this material to the defendant provided him with sufficient information to satisfy his right to be informed of the nature and cause of the accusation against him. Translation of the entire indictment, with its numerous counts and named defendants, would have been a very time consuming process which could only have served to confuse, and not to clarify matters for the defendant. The procedure followed by the AUSA went beyond that mandated in Lopez, supra, which only...