USA v. Amano
| Decision Date | 11 September 2000 |
| Docket Number | No. 99-10607,99-10607 |
| Citation | 229 F.3d 801 |
| Parties | (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TATSUYA AMANO, Defendant-Appellant |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jane L. McClellan, Assistant Federal Public Defender, Phoenix, Arizona, for the defendant-appellant.
Karen S. McDonald, Assistant United States Attorney, Appellate Section, Phoenix, Arizona, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona. Stephen M. McNamee, District Judge, Presiding. D.C. No. CR-99-00194-SMM
Before: Ruggero J. Aldisert,2 Susan P. Graber, and Raymond C. Fisher, Circuit Judges.
Defendant Tatsuya Amano, a Japanese national, challenges on two bases the district court's denial of his motion to suppress certain evidence: (1) that, at the time of his arrest, law enforcement officers failed to notify him of his right under the Consular Convention and Protocol between the United States and Japan (Japan Convention) to contact the Japanese consulate, and (2) that his waiver of Miranda rights and his consent to search his apartment were not voluntary. We hold (1) that suppression of evidence is not an appropriate remedy for a violation, if there was one, of the Japan Convention, and (2) that the trial court did not err in concluding that Defendant voluntarily waived his rights and consented to the search. Accordingly, we affirm.
Police officers in Phoenix, Arizona, stopped Defendant after receiving a complaint from a restaurant that he had paid for his food with a counterfeit $20 bill. Before questioning Defendant, Officer Kulesa read the Miranda rights to him in English. Defendant, speaking in English with a Japanese accent, said that he understood his rights. Then Kulesa questioned Defendant about his driver's license and the license plate on his car. During that conversation, Defendant told Kulesa that he is from Japan. The officers arrested Defendant when they learned that his driver's license was suspended and that the license plate on his car was stolen. During an inventory of Defendant's car, the lawfulness of which is not at issue here, the officers found $360 in counterfeit bills.
Officers took Defendant to a police precinct, where Special Agent Thurling of the Secret Service questioned him about the manufacture and use of counterfeit currency. Before that questioning began, Thurling advised Defendant again, in English, of the Miranda rights. Defendant then signed a standard-form waiver of Miranda rights. That form, which is printed in English, said that Defendant understood his rights and was willing to speak to the agent without having a lawyer present. Thereafter, Defendant made oral statements (in English) that he had made and used counterfeit currency and signed a written statement (also in English) to the same effect. Additionally, Defendant signed a form, which was printed in English authorizing a search of his apartment.
Neither Kulesa nor Thurling informed Defendant of a right to contact the Japanese consulate. Neither of them asked Defendant whether he needed an interpreter. Both officers testified, however, that Defendant appeared to have no difficulty understanding and conversing in English. Moreover, Defendant did not request an interpreter at any time during Kulesa's or Thurling's questioning.
After obtaining written consent, the Secret Service searched Defendant's apartment. There they found computer equipment with which Defendant had made counterfeit bills, $13,000 in counterfeit bills, and schedules for making and passing counterfeit bills. Those schedules were written in English. The officers also discovered computer manuals and books written in English, as well as check registers in which notations had been made in English.
Defendant was indicted on two counts: manufacturing counterfeit obligations and uttering counterfeit obligations, in violation of 18 U.S.C. SS 472 and 474. Defendant filed a motion to suppress his written statement and the evidence found during the search of his apartment. In support of that motion, he attached an affidavit stating that he is a Japanese citizen; that, had he been informed of a right to contact the Japanese consulate, he would have done so, remained silent, and sought the help of a lawyer before speaking with officers; and that he had no familiarity with Miranda warnings until his arrest. The affidavit, including its statement that Defendant had read the affidavit and that its contents were true, was written in English. Nothing in the affidavit or elsewhere in the record suggests that Defendant needed an interpreter to understand the affidavit.
The district court held a two-day evidentiary hearing, after which it denied the motion to suppress. Defendant then entered into a plea agreement, under which he agreed to plead guilty to the charge of manufacturing counterfeit obligations, in exchange for which the government agreed to drop the charge of uttering counterfeit obligations. In the agreement Defendant retained the right to appeal the district court's denial of the motion to suppress. The district court sentenced Defendant to 12 months and one day of imprisonment and ordered him to pay restitution to merchants to whom he had passed counterfeit bills. After the court entered judgment, Defendant brought this timely appeal. He challenges only the denial of his motion to suppress.
We review de novo the district court's decision whether to suppress evidence, but we review the court's underlying factual findings for clear error. See United States v. Morning, 64 F.3d 531, 532 (9th Cir. 1995).
The voluntariness of a consent to search is a factual issue that we review for clear error. See id.
We review a district court's ruling on a Miranda waiver under two standards: Whether the waiver was knowing and intelligent is a question of fact that we review for clear error. Whether the waiver was voluntary is a mixed question of fact and law, which we review de novo. See United States v. Doe, 155 F.3d 1070, 1074 (9th Cir. 1998).
In United States v. Lombera-Camorlinga, 206 F.3d 882, 885 (9th Cir. 2000) (en banc), this court held that the exclusion of evidence is not an appropriate remedy for a violation of any individual rights that might be created by Article 36 of the Vienna Convention on Consular Relations (Vienna Convention). In this case, Defendant asks us to hold that a different rule obtains with respect to Article 16(1) of the Japan Convention and that the failure to inform him, after arrest and before questioning, of a right to contact the Japanese consulate requires suppression of his written statement and of the evidence seized from his apartment.3 For the reasons that follow, we hold that the exclusion of evidence is not an appropriate remedy for a violation of any individual rights that might be created by Article 16(1) of the Japan Convention.
Article 16(1) provides:
The appropriate authorities of the receiving state shall, at the request of any national of the sending state who is confined in prison awaiting trial or is otherwise detained in custody within his consular district, immediately inform a consular officer of the sending state. A consular officer shall be permitted to visit without delay, to converse privately with, and to arrange legal representation for any national of the sending state who is so confined or detained....
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