United States District Court, E.D. Virginia, Alexandria Division
Ellis, III United States District Judge.
Khoa Dang Vu Hoang is named in two counts in an eight-count
second superseding indictment. 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 Mirandarights 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.
second superseding indictment alleges the following:
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.
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.
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 (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
• 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?
Special Agent Hoang: We can read together.
Special Agent Hoang: Okay. This is an advisement of your
Special Agent Hoang: Ok, before we interview you, you must
know about your rights, okay.
Special Agent Hoang: You have the right to know of your
Special Agent Hoang: You have the right to remain silent.
Special Agent Hoang: You have the right to know that anything
that you said [sic] may be used against you in the court of
Special Agent Hoang: Okay. You have the right to ask for
counsel by a lawyer before and during the interview.
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
Special Agent Hoang: Here, this is what you must understand,
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
Special Agent Hoang: Do you ...