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United States v. Hoang

United States District Court, E.D. Virginia, Alexandria Division

March 2, 2017

UNITED STATES OF AMERICA,
v.
KHOA DANG VU HOANG, Defendant.

          MEMORANDUM OPINION

          T. S. Ellis, III United States District Judge.

         Defendant Khoa Dang Vu Hoang is named in two counts in an eight-count second superseding indictment.[1] In these two counts, defendant is charged with (i) stalking, in violation of 18 U.S.C. § 2261 A(1) and (ii) conspiracy to commit stalking, in violation of 18 U.S.C. §§ 2261A(1) and 371. Defendant filed a motion to suppress incriminating admissions he made during a two-hour custodial interview on the grounds (i) that his waiver of Miranda[2]rights was neither voluntary, knowing, nor intelligent, and (ii) that the interviewing officer's leading questions and references to deportation, defendant's family, and a potential prison sentence rendered his admissions involuntary even if the initial waiver was valid. Following full briefing, an evidentiary hearing, and oral argument, a bench ruling issued denying defendant's motion. This memorandum opinion records and further elucidates the reasons for this decision.

         I.

         The second superseding indictment alleges the following:

         Nam began dating a woman ("the Victim") around May 2013. Nam lives in Fairfax County, Virginia, and the Victim lives in Montgomery County, Maryland. During their relationship, Nam allegedly took sexually explicit photos of the Victim with his cellphone. Nam and the Victim also allegedly used crack cocaine together. Shortly after Nam and the Victim broke up in December 2013, Nam began harassing the Victim. As part of this harassment, Nam and defendant allegedly drove to the Victim's house to stalk her. The Victim also allegedly talked to defendant about Nam and told defendant that she was afraid of Nam. In late December 2013, Nam threatened the Victim that he would spread the sexually explicit photos of her unless she paid him money.

         In January 2014, defendant drove Nam to the Victim's house to stalk the Victim. After they determined the Victim was not home, Nam and defendant broke into the Victim's house and stole some of her possessions. On January 25, 2014, Nam then posted the sexually explicit photos of the Victim on Nam's Facebook page, which a number of people viewed. That same day, the Victim posted on her Facebook page that she would be going with her friends that night to a club in the District of Columbia. Nam saw the Victim's Facebook post and asked defendant to drive him to the club to watch for the Victim and stalk her. Defendant agreed to do so. Once Nam and defendant arrived at the club, they parked outside the club and waited for the Victim to emerge from the club. Nam had a handgun on his person for the purpose of harassing and frightening the Victim. When the Victim left the club and got into her car, Nam instructed defendant to follow her, which defendant did. When the Victim stopped her car at a traffic light, Nam got out of defendant's car, approached the Victim's car with his gun out, and demanded that the Victim let him into her car. She complied, and Nam then forced the Victim at gunpoint to drive to Maryland. While Nam was in the Victim's car, Nam and defendant maintained contact via cellphone, and Nam directed defendant to follow the Victim to Maryland, which defendant did. Nam released the Victim in Maryland.

         After the Victim identified defendant as one of the kidnappers, Montgomery County, Maryland police officers arrested him on August 5, 2016, and he was interviewed by several officers. The admissions he made during this interview are the subject of his motion to suppress. The pertinent facts relating to the interview, which are succinctly summarized below, are derived from (i) the video recording of the interview, which was conducted almost entirely in Vietnamese, (ii) the transcript of defendant's interview, which was translated into English[3] (iii) the forms used to secure defendant's waiver, and (iv) the testimony of defendant and Special Agent Hoang at the evidentiary hearing:

• Defendant was born in Vietnam and is 46 years old. He completed high school in Vietnam but has no other formal education. He is a naturalized United States citizen. By his own admission, defendant does not speak English well and reads and writes only a little English. Defendant had never been arrested before.
• After his arrest, defendant was taken to an interview room at a police station in Montgomery County, Maryland. Because of defendant's limited English proficiency, Maryland detectives called in FBI Special Agent Joseph Hoang. Special Agent Hoang grew up in the United States speaking both Vietnamese and English. FBI testing of his language skills shows that he speaks Vietnamese at a two-plus level and reads Vietnamese at a level three, which means that he is proficient.
• Special Agent Hoang was present during the entire interview, serving as both translator and as an interviewer. Maryland Detective Alyson Dupouy and Detective Sergeant Robert Grimes also questioned defendant. No more than two people - Special Agent Hoang and one of the detectives - questioned defendant at any one time.
• The video recording of the interview begins at approximately 9:10 p.m. Interview Video Recording (Aug. 5, 2016). Defendant was sitting alone in the room eating a snack with one hand cuffed to a table. Someone entered the room and gave defendant a bottle of water. Special Agent Hoang and Detective Dupouy entered the room at approximately 9:45 p.m.
• Special Agent Hoang testified at the hearing that defendant appeared "normal and friendly" throughout the interview, and did not appear to be under the influence of any drugs or alcohol. United States v. Hoang, No. l-16-cr-193 (E.D. Va. Feb. 10, 2017) (Hr'gTr.at27).
• Special Agent Hoang introduced himself to defendant and informed defendant that Special Agent Hoang spoke and understood Vietnamese. Special Agent Hoang also advised defendant to ask any questions defendant had.
• Immediately after introducing himself, Special Agent Hoang told defendant that 'the first thing we need to [do is] go over your rights." United States v. Hoang, No. l-16-cr-193 (E.D. Va. Feb. 6, 2017) (Interview Tr. at 3). Special Agent Hoang asked defendant whether defendant would prefer going over defendant's rights in Vietnamese or English, and defendant requested Vietnamese. Special Agent Hoang testified at the hearing that he had previously advised suspects of their Miranda rights in Vietnamese on approximately 20 to 30 occasions.
• Special Agent Hoang reviewed defendant's Miranda rights using the FBI's official waiver form FD-395.17, which lists the Miranda rights in Vietnamese. Special Agent Hoang fluently translated the FBI waiver form from Vietnamese into English during the hearing, thereby demonstrating the facility and ease with which he could translate from Vietnamese into English.
• Special Agent Hoang explained that the FBI waiver form is titled in Vietnamese with the phrase "[t]hese are your rights, " and the form also includes a space to enter the location, date, and time of the interview. Hr'g Tr. at 29. The form then states that defendant has (1) the right to remain silent, and that anything defendant says can be used against him in a court of law, and (2) the right to an attorney before and during the interview, and that if defendant cannot hire an attorney then an attorney will be provided before the interview begins. Id. The form then asks defendant if defendant agrees to speak without an attorney. Id. Finally, next to the Vietnamese phrase for "I consent, " there is a line for defendant to sign the form and consent to questioning. Id; Gov't Ex. 4C.
• The video recording and interview transcript, which Special Agent Hoang confirmed was accurate, show that defendant read the FBI waiver form in Vietnamese as Special Agent Hoang explained each right in Vietnamese. The translation of that process is as follows:
Special Agent Hoang: You read [the waiver form] for me ok?
Defendant: Yes.
Special Agent Hoang: We can read together.
Defendant: Yes.
Special Agent Hoang: Okay. This is an advisement of your rights.
Defendant: Yes.
Special Agent Hoang: Ok, before we interview you, you must know about your rights, okay.
Defendant: Yes.
Special Agent Hoang: You have the right to know of your rights, okay?
Defendant: Yes.
Special Agent Hoang: You have the right to remain silent. Okay?
Defendant: Yes.
Special Agent Hoang: You have the right to know that anything that you said [sic] may be used against you in the court of law, okay?
Defendant: Yes.
Special Agent Hoang: Okay. You have the right to ask for counsel by a lawyer before and during the interview.
Defendant: Yes.
Special Agent Hoang: If you do not have the ability to hire a lawyer, Defendant: Yes.
Special Agent Hoang: A lawyer will be appointed to [ ] help you okay?
Defendant: Yes.
Special Agent Hoang: Here, this is what you must understand, Defendant: Yes.
Special Agent Hoang: Before the interview begins, if you agree to talk with us, - Defendant: Yes.
Special Agent Hoang: ... and then you do not want to provide any answers later on, you may stop the interview at [any time].
Defendant: Yes.
Special Agent Hoang: Do you ...

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