Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Do

United States District Court, D. Oregon

November 29, 2018

UNITED STATES OF AMERICA,
v.
DAT QUOC DO, Defendant.

          Billy J. Williams, United States Attorney, and Benjamin Tolkoff and Paul Maloney, Assistant United States Attorneys, United States Attorney's Office, Of Attorneys for United States of America.

          Gerald M. Needham and Elizabeth G. Daily, Assistant Federal Public Defenders, Office of the Federal Public Defender, Of Attorneys for Defendant.

          OPINION AND ORDER ON MOTION TO SUPPRESS

          Michael H. Simon United States District Judge.

         Defendant Dat Quoc Do (“Do”) is a native Vietnamese speaker with a limited ability to speak and understand the English language. He is charged with two counts of unlawful use of a weapon and two counts of carrying and using a firearm during a crime of violence. All relevant conduct occurred on the Warm Springs Indian Reservation. After law enforcement officers placed Defendant in custody, the officers verbally advised Defendant of his Miranda rights in English. Based on Defendant's verbal responses, also in English, the officers concluded that Defendant understood his rights and waived them. Defendant then gave a video-recorded statement to the officers while Defendant was seated in the back seat of a police cruiser. Later that evening, Defendant was again interviewed, this time by a tribal detective and a Special Agent of the FBI. These law enforcement officers also verbally advised Defendant of his Miranda rights in English. Based on Defendant's verbal responses, also in English, these law enforcement officers similarly concluded that Defendant understood his rights and waived them. Defendant then gave a video-recorded statement, his second of the evening, to the detective and the FBI agent. Defendant moves to suppress both of these statements, arguing that his limited knowledge of English impaired his ability knowingly and voluntarily to waive his rights, thereby rendering his verbal waivers ineffective.

         BACKGROUND

         As alleged by the Government, on September 4, 2017, at about 10:30 p.m., Do was a passenger in a Honda Accord driving eastbound on Highway 26, heading toward Madras, Oregon. Do's girlfriend, Thao Bich Tran (“Tran”) was driving. As Tran drove through the Warm Springs Indian Reservation, a Ford Focus, also driving eastbound on Highway 26, was in front of Tran's Honda. As Tran's Honda passed the Ford, Do pointed a handgun out the window of the Honda and fired several shots. Whether Do fired when he was behind the Ford, beside the Ford, or in front of the Ford, how many shots he fired, in what direction he fired, and why he fired the gun are all questions the answers to which are disputed by the parties. None of these answers, however, is relevant to the pending motion to suppress Defendant's statements.

         After shots were fired, the police were called, and the police pulled over the Honda. Do and Tran were placed in the backseat of a police car, and their conversation in the police car was recorded. They spoke to each other in Vietnamese. A short time later, while Do was still in the backseat of the police car, a police officer verbally advised Do of his Miranda rights in English, after which Do answered the officer's questions in broken English, which also was video-recorded. Do moves to suppress the statement that he gave to the officer while in the police car. Do does not move to suppress the recorded conversation between Do and Tran.

         At some point that evening, Do was arrested. Shortly thereafter, he was again interviewed, this time by a detective with the Warm Springs Police and a Special Agent of the FBI. Do was again verbally advised of his Miranda rights in English, and he answered questions by the detective and the FBI Agent in broken English. This statement also was video-recorded. Do moves also to suppress his statements to the detective and FBI agent.

         Do was born in Viet Nam and is a native Vietnamese-speaker. At the time of his arrest, Do had been in the United States for seven years and appears, from the video record of the statements he made, to have a basic knowledge of spoken English. Also based on the recording, Do appears to be intelligent and without any noticeable cognitive impairment. Do, however, argues that because of his difficulties with the English language he did not knowingly waive his Miranda rights and, accordingly, his statements made to law enforcement officers in the police car and in the police station should be suppressed.

         DISCUSSION

         A. Standards

         “For inculpatory statements made by a defendant during custodial interrogation to be admissible in evidence, the defendant's waiver of Miranda rights must be voluntary, knowing, and intelligent.” United States v. Garibay, 143 F.3d 534, 536 (9th Cir. 1998) (quotation marks omitted). When deciding whether a defendant knowingly waived his or her Miranda rights, a court considers “the totality of the circumstances including the background, experience, and conduct of defendant.” Id. (quoting United States v. Bernard S., 795 F.2d 749, 751 (9th Cir. 1986). The prosecution must prove “by a preponderance of the evidence that a defendant knowingly and intelligently waived his Miranda rights, ” and there is a presumption against waiver. Id. To satisfy its burden of proving waiver, the government “must introduce sufficient evidence to establish that under the totality of the circumstances, the defendant was aware of the nature of the right being abandoned and the consequences of the decision to abandon it.” Id. (quotation marks omitted). “The government's burden to make such a showing is great, and the court will indulge every reasonable presumption against waiver of fundamental constitutional rights.” Id. at 537 (quotations marked omitted). One factor a court should consider “[i]n determining whether a defendant knowingly and intelligently waived his Miranda rights” is “any language difficulties encountered by the defendant during custodial interrogation.” Id.

         In Garibay, law enforcement officers conducted a custodial interrogation in English of the defendant, whose primary language was Spanish. The officers, however, did not offer the defendant the option of conducting the interrogation in Spanish (and the defendant did not decline such an offer). Instead, the interrogating officer “questioned Garibay in English and assumed that Garibay was sufficiently proficient in English to understand and waive his Miranda rights without the assistance of a Spanish-speaking officer.” Id. (footnote omitted). The agent, however, admitted “that he had to rephrase questions when Garibay did not seem to comprehend what was said to him. Although Spanish-speaking agents were available at the time of Garibay's arrest and custodial interrogation, [the agent] did not enlist those agents to assist him in questioning Garibay.” Id.

         After an evidentiary hearing, the district court in Garibay found that the defendant's waiver of his Miranda rights was knowing and intelligent, and the district court denied Garibay's motion to suppress. Garibay then proceeded to a jury trial and was convicted on ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.