Case o' The Week: Gov't Takes it on the Chen in Interlocutory Appeal

Always in the little guy’s corner, Judge Tashima recognizes Miranda protections for undocumented aliens in a great case from Guam. United States v. Lin Chen, __ F.3d __, Slip. Op. 2151 (9th Cir. Mar. 2, 2005), available here.

Players: Win by Fed P.D. John Gorman, great decision by Tashima.

Facts: Chen was one of a number of aliens allegedly smuggled into Guam. Id. at 2154. He was taken into administrative custody and questioned by INS officers pending an IJ appearance. Id. at 2154-55. Chen wasn’t Mirandized, and had an attorney at the time who was not contacted. Id. at 2155. Later, the agent referred the case to an AUSA, who charged Chen with perjury to “pressure” him to cooperate against the smuggler. Id. at 2156. Chen moved to suppress his statements, won in district court, and the government took an interlocutory appeal. Id.

Issue(s): Does an “INS agents’ investigation of illegal immigrants constitute ‘interrogations’” to trigger Miranda requirements? Id. at 2157.

Held: “[T]he facts here demonstrate that Chen was subject to an especially heightened risk of § 1325 prosecution. The particular circumstances of this case – namely, the prosecutor’s willingness to pursue charges against Chen to procure Chen’s testimony against Li, and the fact that Chen was questioned in a district that has a practice of prosecuting § 1325 violations – rendered [the INS agent’s] questioning of Chen an ‘interrogation’ for Miranda purposes.” Id. at 2161.

Of Note: This is a characteristically thoughtful decision by Judge Tashima. In Chen, Tashima carefully traces the Circuit’s treatment of custodial interrogations of undocumented aliens. Id. at 2157 - 60. He persuasively distinguishes United States v. Salgado, 292 F.3d 1169 (9th Cir. 2002), which had declined to suppress statements during an interview pending an administrative hearing. Id. at 2158-59. While the Ninth in Chen declines to reach the question of every custodial interrogation of an undocumented alien triggers Miranda (because of § 1325 illegal entry exposure), the Court concludes that the potential criminal exposure on these facts merited the protections.
Note also that this victory is twice as sweet when it was on the government’s interlocutory appeal.

How to Use: In the Northern District of California, INS agents routinely troll the jails looking for illegal reentry (§ 1326) candidates. When they locate potential defendants, they have an initial, un-Mirandized interview establishing identity, citizenship, and immigration status. Only then do they Mirandize the alien and repeat the interrogation – all within a locked cell in a county jail or state prison. Under Chen (and the authority it collects), these little pre-Miranda interviews are unlawful – like Chen, these interviews are done in the context of likely criminal prosecutions for illegal entry (or even worse, reentry). What one does with this challenge is another question: usually the evidence is so overwhelming in a § 1326 case that the confession is just icing on the government’s cake. But for cases with no offers, every little motion helps leverage a deal . . . and helps discourage ICE officers from this lazy, shameful, and unlawful practice.

For Further Reading: The Ninth needs more Semper Fi. Like Judge Harry Pregerson, Judge Tashima was a Marine and former district court judge. See bio here. Judge Tashima was nominated to the Ninth by Carter in 1980, and took senior status in 2004. Id.
When ten years old, he was an internee in a WWII relocation camp for Japanese-Americans. See essay here. That experience shaped his view of his role of the bench: “In my twenty-four years as a federal judge, both in the trial court and on the appellate bench, it has been my privilege to participate in what I believe to be the primary mission of the federal courts – to uphold the rule of law and to hold the government to its constitutional obligations.” Id.
In the Buckland litigation, he proved himself a man of his word: he held the government to its constitutional obligations and found the central federal drug statute to be unconstitutional under Apprendi.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcal.fpd.org