Country Conditions Evidence: Court will permit Defense to Offer Evidence of Conditions

Editor's Update: For Daily Reports on the Blog, go to: usavbelfast.org
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The trial judge in the case of "Chuckie" Taylor (USA v Belfast) will allow evidence of the conditions in Liberia, in support of potential cross examination of the witness's motive for claims made regarding torture.

The defendant is an American citizen as well as the son of Charles Taylor, the former President of Liberia, who is currently on trial at the Hague. Chuckie Taylor is being prosecuted under a US law, which allows the prosecution of American nationals who have engaged in torture abroad.

From the Case File: The Court denied the Government's Motion in Limine. The Defendant's Response in Opposition to the Motion in Limine states:

The defense has notified the government that we intend to present expert testimony as to the living conditions in Liberia and Sierra Leone as well a video of various locations in Liberia and the United Nations Human Development Reports for the years 1999 and 20022. The purpose of this evidence is to show to the jury that reliable data.

Liberia and Sierra Leone were, during the relevant times (and even today), very poor and underdeveloped countries. Liberia and Sierra Leone are consistently at the bottom of all indices concerning poverty and underdevelopment. They are without doubt among the poorest nations in the world. Liberia was voted the worst place to live in 2003 by the Economist magazine and was the subject of a series entitled The World’s Most Dangerous Places produced by Robert Pelton. The underdevelopment and poverty affect the entire population. Even those who are well off have no running water in their homes and no electricity unless they can afford a generator. Five years after the fourteen year civil war ended( 1989 to 2003), the country is still among the poorest.

The star witnesses against the defendant come from either Liberia and Sierra Leone. They were born there and were raised there. They have lived most of their lives there from childhood to adulthood. Some of them have children who were born there. Their formative and even adult years were spent in these countries. Liberia and Sierra Leone are all they have known for most of their lives. They have lived through the poverty and underdevelopment that have blighted their countries for years. There is also no doubt that five of the six identified government star witnesses have left their home countries and are living as refugees in the west. They have decided to leave Liberia or Sierra Leone to seek a better life for themselves and their family.

The jury’s verdict will rest exclusively on the credibility of these six witnesses. Their motives for accusing the defendant will be an important issue in this case. Their credibility will determine whether the defendant is exposed to a life sentence or not. Nothing could be more important to the defendant’s right to an effective defense than the opportunity to present evidence of the motivation of these witnesses to come forward and accuse him of the crimes charged in the indictment. Evidence of motive in this case will consist in part of the horrible economic conditions that faced these witnesses on a daily basis. Might they exaggerate or fabricate torture at the hands of the defendant in order to seek and obtain asylum in the west? The question answers
itself. The government objects to the proffered evidence on the grounds that portions of the video, the expert testimony as to living conditions, and the United Nation reports have no relevance to the indictment. However, the video tape includes footage of two locations where the government witnesses claim they were detained and abused–the St. Paul River Bridge and the Gbarnga police station.

These portions are not offered specifically to show the living conditions in Liberia, although they may shed light on them. The other portions of the video depict Monrovia and outlying areas which will be offered to show the living conditions in the country, including the poor roads, poor sanitary conditions, destroyed buildings and decaying housing. They give a brief yet important picture of what daily life is like for the vast majority of Liberians.

Illegal Reentry Sentencing: Error to Treat As Aggravated Felony

The 8th Circuit in United States v Reyes-Solano, remanded for sentencing, based on err in trial court's four level enhancement on the basis of misdemeanor assault.

" In determining whether a pre-removal conviction based on a guilty plea was for a crime of violence under § 2L1.2(b)(1), we apply the “categorical approach” prescribed in Shepard, 544 U.S. at 26. Under this approach, we must “look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to [Reyes-Solano’s pre-removal] crime.” Leocal v. Ashcroft, 543 U.S. 1, 7 (2004).

However, “[i]f the statute criminalizes both conduct that would qualify as a crime of violence and conduct that would not, the court may consider the terms of the charging document or plea agreement as well as a transcript in which the defendant confirmed the factual basis for his plea in order to determine whether the prior conviction was for a crime of violence.” United States v. Lopez-Zepeda, 466 F.3d 651, 653 (8th Cir. 2006); see United States v. Vazquez-Garcia, 449 F.3d 870, 873 (8th Cir. 2006), cert. denied, 127 S. Ct. 1149 (2007).

In this case, the government argues that Reyes-Solano’s admissions under oath at the sentencing hearing met its burden to prove that two Mississippi misdemeanor assault convictions were crimes of violence. However, this argument focuses on the second step of the categorical approach, a step that is limited to “a narrow range of cases” where analysis of the elements of the offense is inconclusive because the statute is overinclusive. Shepard, 544 U.S. at 17 (quotation omitted). Here, the government could not obtain any court records of the Mississippi convictions, and therefore the record before the district court does not identify the state statutes or local ordinances that Reyes-Solano pleaded guilty to violating. As the elements of the offenses are unknown, the district court erred in concluding that those offenses were crimes of violence applying the categorical approach of Shepard.

Absent state court records identifying the offense of conviction, from which the elements of that offense may be determined, the testimony of Reyes-Solano at sentencing is not sufficient proof that actual, attempted, or threatened use of force was an element of the offense and not merely conduct incidental to an offense whose essential elements did not include the use of force. Accordingly, on this record the four-level increase under § 2L1.2(b)(1)(E) was improperly imposed.

Immigration: AG reverses decision on Asylum for Victim of Genital Mutilation

Today's New York Times reports that " Attorney General Michael B. Mukasey on Monday vacated a decision by a federal immigration board that had denied asylum for a Malian woman who said she feared genital mutilation and forced marriage to a first cousin if she were returned to Mali. "

" Mr. Mukasey’s ruling sends the case back to the Board of Immigration Appeals for reconsideration. Women’s and human rights groups had sought Mr. Mukasey’s intervention.
The board had denied asylum to the woman, Alima Traore, 28, last year and again in April. In doing so, it noted that Ms. Traore’s genitals had been cut as a child and said that while “reprehensible,” the mutilation could not be repeated. "

US Prisoners Abroad : Government Must Release Photographs

The Second Circuit Court of Appeals in ACLU v Department of Defense, September 22, 2008, upheld a trial court's order to release photographs of abusive treatment of detainees.

" The United States Department of Defense and Department of the Army (referred to here as “the defendants”) appeal from orders of the United States District Court for the Southern District of New York (Alvin K. Hellerstein, District Judge) directing them to release 21 photographs pursuant to the Freedom of Information Act (“FOIA” or “the Act”), 5 U.S.C. § 552
22 (2006). The photographs depict abusive treatment of detainees by United States soldiers in Iraq and Afghanistan. On appeal, the defendants contend that the exemption in § 552(b)(7)(F) for law enforcement records that could reasonably be expected to endanger “any individual” applies here because the release of the disputed photographs will endanger United States troops, other Coalition forces, and civilians in Iraq and Afghanistan. They further claim that, notwithstanding the redactions ordered by the district court of 20 of the 21 photographs, disclosure will result in unwarranted invasions of the personal privacy of the detainees they depict, justifying nondisclosure under § 552(b)(6) and (7)(C).

We hold that FOIA exemption 7(F) does not apply to this case. We further hold that the redactions ordered by the district court render the privacy exemptions unavailable to the defendants. Accordingly, we affirm.

White Collar Crime & Immigration: Government Can provide Workers with Temporary Work Permits in Exchange for Cooperation

The Honolulu Advertiser reports that a federal magistrate has agreed to release a number of foreign nationals, undocumented workers as part of cooperation with the government in an investigation of labor violations.


" Last week, Floro Mendez-Sanchez, an admitted illegal immigrant from Mexico, was locked away in Honolulu's Federal Detention Center, facing up to six months in prison and deportation for using false identity papers to work as a farm laborer in Waipahu."


"This week, Mendez-Sanchez, 24, is out of jail, living at the YMCA and holder of a temporary work permit issued by the federal government that allows him to legally look for a new job.
Mendez-Sanchez and six others still face prison time and deportation, but because they pleaded guilty to immigration crimes and agreed to cooperate in an ongoing federal investigation of the company that employed them, they have temporary liberty and permission to enter Hawai'i's workforce. It's part of what U.S. Magistrate Judge Barry Kurren, who has approved a handful of the plea deals, said in court Wednesday is an "extraordinary" new development for law enforcement agencies targeting companies and middlemen that profit from the employment of illegal aliens in the Islands."

Immigration Policy: Ninth Circuit Upholds Arizona Law which Punishes Employers

The Ninth Circuit in Causa v Napolitano, September 16, 2008, has upheld a law which punishes employers who knowingly hire undocumented workers.

"This case is a facial challenge to an Arizona state law, enacted in 2007 and aimed at illegal immigration, that reflects rising frustration with the United States Congress's failure to enact comprehensive immigration reform. The Arizona law, called the Legal Arizona Workers Act, targets employers who hire illegal aliens, and its principal sanction is the revocation of state licenses to do business in Arizona. It has yet to be enforced against any employer."

Acquitted at Trial on Terrorism Charges, but still Held for Deportation

The Miami Herald September 14, 2008, reports that a Haitian national, lawful permanent resident, who was acquitted at trial, is still being held for deportation under onerous conditions.

" Before he was acquitted of terrorism charges, Lyglenson Lemorin spent a year and a half in prison. Since then, the legal U.S. resident has been locked up for nine months by immigration authorities. Now he may spend years more in detention as he fights an uphill battle against government efforts to deport him to his native Haiti -- an effort based on the U.S. Department of Justice's contention that he is, in fact, a terrorist, despite his acquittal by a federal jury.
And, in the end, Lemorin might never again be a free man on U.S. soil. Lower standards of proof in the immigration court system -- not a fully independent tribunal, but part of the U.S. Department of Justice -- mean the case that did not stand up in criminal court may well lead to Lemorin's deportation to a country he left as a boy."

Consular Assistance, Vienna Convention, 7th Cir Remands 2255

The Seventh Circuit remanded the case of Nigerian national, Osagiede, who claims that his attorney provided ineffective assistance of counsel for failing to litigate the Government's failure to notify him of his right to consular assistance under the Vienna Convention on Consular Relations, art. 36, April 24, 1962, 21 U.S.T. 77, 596 U.N.T.S. 261. Osagiede v United States September 9, 2008. The complete case can be found at the website for the Seventh Circuit Court of Appeals.

"The Government conceded that it had failed to inform Osagiede of his right, in clear violation of the Article 36. Nevertheless, the district court dismissed Osagiede's petition without an evidentiary hearing.

"The Vienna Convention "is an international treaty that governs relations between individual relations and foreign consular officials." Sanchez-Llamas v. Oregon, 548 U.S. 331, 336, 126 S. Ct. 2669, 165 L. Ed.2d 557 (2006) (Breyer, J., dissenting). The adoption of the Vienna Convention by the international community was "the single most important event in the entire history of the consular institution." LUKE T. LEE, CONSULAR LAW AND PRACTICE 26 (2d ed. 1991). When the United States ratified the treaty in 1969, it became the "supreme Law of the Land." U.S. CONST. art. VI, cl. 2.The Convention contains seventy-nine articles, many of which address the rights of local consulates and consular officials, the respective obligations of sending and receiving nations and matters such as tax-exempt status and legal immunity.

Article 36, however, is unique: it is phrased in terms of the detained foreign national and his or her individual rights. See Jogi v. Voges (Jogi II), 480 F.3d 822, 831-35 (7th Cir. 2007). Article 36 imposes three separate obligations on a detaining authority: (1) inform the consulate of a foreign national's arrest or detention without delay; (2) forward communications from a detained national to the consulate without delay, and (3) inform a detained foreign national of "his rights" under Article 36 without delay. Vienna Convention, art. 36(1)(b), 21 U.S.T. 77, 596 U.N.T.S. 261. Although this third obligation might be more properly termed a "right to notification," the right embodied in Article 36 as a whole is commonly referred to as the "right to consular assistance."


The right to consular assistance has been codified in federal regulations promulgated to ensure compliance with Article 36. See 28 C.F.R. § 50.5 (2003) (requiring the Department of Justice to comply with Article 36); 8 C.F.R. § 236.1(e) (2003) (requiring the Immigration and Naturalization Service to comply with Article 36). Further, federal law enforcement agencies have also long been instructed by the State Department that they must comply with the requirements of Article 36. See U.S. Department of State, Pub. No. 10518, CONSULAR NOTI-FICATION AND ACCESS: INSTRUCTION FOR FEDERAL, STATE AND LOCAL ENFORCEMENT AND OTHER OFFICIALS REGARDING FOREIGN NATIONALS IN THE UNITED STATES 13-15 (Jan. 1998) ("when foreign nationals are arrested or detained, they must be advised of the right to have their consular officials notified").Article 36 furthers an essential consular function: "protecting . . . the interests of the sending State and of its nationals." Vienna Convention, arts. 5(a), (e), 21 U.S.T. at 82-83. This "protective function" is one of the most important functions performed by a consulate. LEE, CONSULAR LAW AND PRACTICE 125-88.

Foreign nationals who are detained within the United States find themselves in a very vulnerable position. Separated from their families and far from their homelands, they suddenly find themselves swept into a foreign legal system. Language barriers, cultural barriers, lack of resources, isolation and unfamiliarity with local law create "an aura of chaos" around the foreign detainees, which can lead them to make serious legal missteps. Linda A. Malone, From Breard to Atkins to Malvo: Legal Incompetency and Human Rights Norms on the Fringes of the Death Penalty, 13 WM. & MARY BILL RTS. J. 363, 392-93 (2004).


In these situations, the consulate can serve as a "cultural bridge" between the foreign detainee and the legal machinery of the receiving state. William J. Aceves, Murphy v. Netherland, 92 AM. J. INT'L L. 87, 89-90 (1998). Of course, we assume that lawyers here are equipped to deal with language barriers; we also assume they are familiar with the law. Sometimes, however, the assistance of an attorney cannot entirely replace the unique assistance that can be provided by the consulate. The consulate can provide not only an explanation of the receiving state's legal system but an explanation of how that system differs from the sending state's system. See Linda Jane Springrose, Note, Strangers in a Strange Land: The Rights of Non-Citizens Under Article 36 of the Vienna Convention on Consular Relations, 14 GEO. IMMIGR. L. J. 185, 195 (1999).


This assistance can be invaluable because cultural misunderstandings can lead a detainee to make serious legal mistakes, particularly where a detainee's cultural background informs the way he interacts with law enforcement officials and judges.


Obviously, the consulate can also assist in more practical ways. The consulate can do more than simply process passports, transfer currency and help [contact friends and family back home. The consulate can provide critical resources for legal representation and case investigation. Indeed, the consulate can conduct its own investigations, file amicus briefs and even intervene directly in a proceeding if it deems that necessary. LEE, CONSULAR LAW AND PRACTICE 125-88. Importantly, the consular officer may help a defendant in "obtaining evidence or witnesses from the home country that the detainee's attorney may not know about or be able to obtain."



"The Nigerian consulate might, perhaps, have provided the funds for a proper analysis of these tapes. The Nigerian Consulate might have been able to identify regional dialects, offer an accurate voice analysis or even translated the wiretaps itself. The Consulate could presumably have also located Lasisi, who was by then in Nigeria, and taken a statement from him. See, e.g., supra, n.3 (describing the evidence gathered by the Mexican consulate in Sanchez-Llamas). Lasisi was, after all, the man who had been previously mistaken for Osagiede and the man who may have been speaking on the tape recordings. The Nigerian Consulate appears to have been well situated and well equipped to provide Osagiede with this kind of assistance. Thus, Osagiede has gone a long way toward showing that he deserves an evidentiary hearing.

Haiti: Report from IJD re Devastation in Haiti

From the NYT September 10, 2008, a report on current conditions. Also, from the Institute for Justice and Democracy in Haiti, September 10, 2008:

Hurricane Response- What Can We Do? Update: Haiti has had an almost unfathomable string of bad news lately, with4 tropical storms or hurricanes in the last three weeks: Fay, then Gustave,then Hannah then Ike.

Estimates of the deaths caused by the storm have surpassed 1,000, and will continue to climb. More people will be killed in the coming months- from food shortages caused by the storms’ destruction of farms, from difficulty accessing health care because of destroyed roads, and from the general aggravation of poverty. At the Institute for Justice &Democracy in Haiti (IJDH) and the Bureau des avocats<http://www.ijdh.org/bureau.htm> Internationaux (BAI), we are not hurricane response experts, so we’ve included information below from organizations that are qualified to respond. But it is important for all of us to remember that these storms are only part natural disaster. It is not natural that Haiti suffers more fatalities than the rest of the Caribbean combined whenever a storm hits it (see Another Unnatural Disaster <http://auto_sol.tao.ca/node/906> , October2004).

Other Updates: The Jubilee Act <http://www.jubileeusa.org/jubilee-act.html>for debt cancellation has been placed on the Senate calendar for a vote through the unanimous consent process. Time is short, as this session is scheduled to end later this month. Although the bill appears to have enough votes to pass if it reaches a vote, it is possible that some Senators will place a “hold” on the bill, which would make getting to a vote difficult. Think about Haiti still sending $1 million to wealthy banks that are supposed to be fighting poverty, while Haitians pass a hurricane on open roof tops, with no food or water. We’ll keep you updated.

Rep. Alcee Hastings (FL) has issued a call to President Bush to grant Temporary Protected Status(TPS) to Haitians in the U.S. TPS would allow non-resident Haitians living in the U.S. to remain in the country, work, and send money back to needy relatives in Haiti.

On Saturday, September 6, <http://www.pih.org/> Partners in Health co-founder Paul Farmer wrote to colleagues and supporters of Partners In Health (PIH) describing the devastation caused by flooding from Hurricanes Gustav and Hanna in Haiti. The previous day Paul and colleagues from Zanmi Lasante had driven to and through the coastal city of Gonaïves, where tens of thousands of people have been driven from their homes and thousands more are living on rooftops without any access to food, water or shelter.Hurricane Ike arrived the next day with more torrential rains and deadly floods. For more information about the Half-Hour for Haiti Program, the Institute for Justice & Democracy in Haiti, or human rights in Haiti, seewww.HaitiJustice.org.

To receive Half-Hour for Haiti Action Alerts (about 2per month), send an email to HalfHour4Haiti@ijdh.org.

IMMIGRATION DEFENSE: Bond Fund Helps Immigrants Detained

For the complete report, go to Washington Post.

" Bond Help Heartens Immigrants: Workplace Raids' Frequency Propels Fundraising Effort
By N.C. AizenmanWashington Post Staff Writer Sunday, September 7, 2008.

Boston financier Robert Hildreth has been contributing to immigrant service groups around his home state for nearly two decades. So when federal immigration agents raided a garment factory in New Bedford, Mass., last year and began transferring the workers to Texas detention centers thousands of miles from the community organizations trying to help them, Hildreth quickly stepped in with what he thought was a modest offer: "I just told [their lawyers], 'You know, if you ever need bond money for someone, let me know,' " the 57-year-old multimillionaire recalled during an interview. "I was just following my nose on this. . . . I had no idea of the scale of what I was getting into."

Within a matter of weeks, Hildreth had posted bond for 40 detainees, contributing $116,800 of his own money and launching the pilot version of a national bond assistance program immigrant advocates hope will prove the linchpin of an emerging strategy to counter the recent increase in government workplace raids, including the arrest of nearly 600 workers at a manufacturing plant in Laurel, Miss., on Aug. 25.

Already, the National Immigrant Bond Fund has attracted more than $300,000 in contributions and helped bail out nearly 90 immigrants detained in six worksite raids, including 10 of the 46 workers detained during a raid on a painting company in Annapolis in June.

NACDL files Amicus in Support of Motion to Dismiss Money Laundering Indictment

The National Association of Criminal Defense Lawyers have filed an Amicus Brief in support of Ben Kuehne's Motion to Dismiss. (August 29, 2008, S.D. Fla. 05-20770-CR-Cooke).


Editor's Note: Criminal defense attorneys who represent foreign nationals will want to be aware of the current prosecution of Attorney Ben Kuehne, who was hired to vet funds were paid by Colombian defendant Fabio Ochoa to attorney Roy Black. For more on this case, see Law.com:

FORENSIC LINGUISTICS: Utah district court rejects testimony as unpersuasive

Editor's Note: One of the most common areas of litigation for Limited English Proficiency defendants, is that of the ability to make a knowing waiver of Miranda rights. In the case of United States v Dutchie, 2008 U.S. Dist. LEXIS 66823, an enrolled member of the Ute Mountain Indian Tribe. Defense counsel called various witnesses in support of the Motion to Suppress, including expert testimony. A significant portion of the Court's order denying the Motion is is reprinted below:

Mr. Dutchie's Ability to Understand His Rights and Implication of His Waiver
....The parties called factual and expert witnesses to provide testimony on the subject. The Government called Mr. Dutchie's mother, Annie Lee Rabbit, to testify about Mr. Dutchie's English and Ute language skills. The Government also submitted evidence of Mr. Dutchie's criminal record. Defense counsel called Marion Deware, Mr. Dutchie's adult education teacher, and Dr. William Eggington, a linguistics expert.

Testimony by Mother. Mr. Dutchie is an enrolled member of the Ute Mountain Ute Indian Tribe. He speaks both English and Ute, although he was educated in English speaking schools. Mr. Dutchie and his mother communicate with each other using a combination of Ute and English. Ms. Rabbit, who is not only Mr. Dutchie's mother but also a translator for the Ute Indian Tribe, testified that Mr. Dutchie "doesn't really speak Ute that well." She also opined that he does not speak or understand the "bigger [English] words" very well.

Testimony by Adult Education Teacher
Marion Deware was Mr. Dutchie's adult education teacher in the Tooele County School District. She specializes in evaluating reading skills and teaching reading skills to adults. She assessed Mr. Dutchie's reading ability in September 2007 (after he had been arrested) using the "easy" version of the standardized T.A.B.E. test ("The Adult Basic Education" test). Overall, he scored "a third grade third month" level meaning that, in general, Mr. Dutchie has absorbed the education of a third grader in his third month of school.The T.A.B.E. test is not an IQ test, and Ms. Deware acknowledged that a person can be intelligent, even have a high IQ, but not be able to read. She also acknowledged that the test does not have built-in markers to determine whether the test-taker is answering honestly or working up to his potential. (Despite Ms. Deware's acknowledgment, there is no evidence to support the conclusion that Mr. Dutchie manipulated the test results.)

Testimony by Forensic Linguist

TestimonyCounsel for Mr. Dutchie presented the testimony of Dr. William Eggington, who is a professor of linguistics. According to Dr. Eggington, "Linguistics is the scientific study of language."

"Forensic linguistics is the application of linguistics study to legal issues." He was hired to analyze the linguistics of the Miranda warning given to Mr. Dutchie, to opine about "what level of reading a person would have to have in order to understand what's in [the] Miranda [warning]" and to opine about whether Mr. Dutchie understood his rights and knowingly waived them during the August 13, 2007 interview.

Dr. Eggington, applying his expertise in forensic linguistics, formed his opinion after reviewing the Interview Transcript, listening to the audio recording of the interview, reviewing records of ten years of Mr. Dutchie's educational history, speaking with Ms. Deware, and reviewing the results of the test administered by Ms. Deware. The Government objected, arguing that the proffered testimony lacked relevance because Dr. Eggington had never spoken with Mr. Dutchie. Over the Government's objection, Dr. Eggington was allowed to testify.

Because his testimony was too extensive to summarize, only the highlights will be discussed here. First, Dr. Eggington concluded that the "standard Miranda [warning], which is I think the one that was used in this case, is pitched at an eighth grade reading level, which means that somebody who [reads at the eighth grade level] will comprehend 50 percent of the Miranda [warning]. For 100 percent you need [to read at the] 11.6 grade level." He reached this conclusion in part based on his professional opinion that "high code" permeates the Miranda warning. "High code" is another way of saying "fancy language" that "educated speakers can understand but other non-educated people can't understand." He pointed to the phrase "the right to" as an example of high code, because it has seven different meanings, four of which are found in the Advice of Rights that Agent Larson read to Mr. Dutchie, and some of which were used by Agent Larson during the interview. He explained the meanings as follows:
[Y]ou have . . . right [versus] wrong, right [versus] left, the conversation right, meaning ["Let's get on with the interview, right?"], [the] intellectual right, meaning "Right, I understand," the human right notion, the right as in right angle, and then you're right as a marker for okay.

He stated further that "when somebody doesn't understand the - comprehend the meaning of a particular word, it's just noise. It just gets washed over." Dr. Eggington concluded--given the Miranda warning's high code, the reading level required to understand the warning, and Mr. Dutchie's third grade reading level--that "it's likely in my opinion that [Mr. Dutchie] has [his Miranda rights] confused with the other rights." (Id.)Defense counsel asked Dr. Eggington, "If Mr. Dutchie does in fact read on a third grade level, would [reading along with Agent Larson] make his comprehension of Miranda . . . better or worse . . .?" His answer, in essence, was that it would be worse. This is his more involved explanation:

Especially the way that the agent read along with him, he read it - the agent was reading it along as if it was ritual. Obviously the agent had done this many times, and so he was reading - he was going through the reading the rights ritual. He was going through at conversational speed, and it would have been impossible in my opinion for Mr. Dutchie to comprehend - to read at that speed, to process - this is realtime processing - to process this complex language at that speed and to comprehend it.

Dr. Eggington also concluded that Mr. Dutchie, who speaks both Ute and English, falls into the "Generation 1.5" category, which means that Mr. Dutchie is "halfway between both languages, and it's very difficult for those folks to comprehend high level language in both codes." According to Dr. Eggington, this status limits Mr. Dutchie's ability to comprehend either language to the adult level of proficiency that a native speaker of either language would reach, even though he was educated in English-speaking schools. And that negatively affected his ability to understand Miranda.Given all of the above, Dr. Eggington ultimately opined that "Mr. Dutchie did not understand that he was waiving his rights" when he signed the consent form and agreed to talk to Agent Larson.On cross examination, Dr. Eggington noted that "reading comprehension is very different from oral comprehension." He acknowledged that "a person could be very familiar with the meaning of a word and not know how to spell it." He also admitted that when he tested Mr. Dutchie, "Mr. Dutchie was very well aware that whether he understood or didn't understood [sic] the Miranda [warning] was an issue." And he essentially agreed that his opinion was "based in part on assuming that [Mr. Dutchie was] not somebody who was dealing with the law frequently."

He did say, however, that even if Mr. Dutchie had been arrested multiple times before, that fact would not change his opinion. "If someone has not got the comprehensibility to understand what's going on, then often it doesn't matter how frequent they get the exchange . . . because it's all noise."

FOOTNOTES After defense counsel's direct examination of Dr. Eggington, the court had to stop the hearing and continue it eleven days later. During the recess period, Dr. Eggington interviewed and tested Mr. Dutchie. That information was brought out during the second part of the evidentiary hearing, over the Government's objection. Because Dr. Eggington had already formed his opinion about Mr. Dutchie's understanding, because his interaction with Mr. Dutchie occurred after Mr. Dutchie had listened to Dr. Eggington's earlier testimony, and because the interview occurred between direct examination and cross examination, the court places very little weight on that part of Dr. Eggington's testimony. Accordingly, much of his testimony on redirect, which may be found in the transcript of the April 22, 2008 hearing, will not be discussed at any length.Dr. Eggington also acknowledged that the Interview Transcript shows Mr. Dutchie's proper use and understanding of different meanings of the word "right."

One of those uses of "right" occurred when Agent Larson stated, "they've got a right to know," to which Mr. Dutchie responded, "I know they do." Dr. Eggington acknowledged that this was "the same kind of right as you have a right to remain silent" (the "high code" in Miranda), and that Mr. Dutchie appeared to understand what Agent Larson was talking about. (Id.) He also admitted that the statement "You don't have to talk to us if you don't want to" (which Agent Larson used) would be easier to understand than the phrase "You have the right to remain silent." When counsel raised the issue of whether Mr. Dutchie was only partially proficient in both Ute and in English, the court asked, "Does it make any difference to your opinion, Mr. Dutchie who is represented by very competent counsel who can request an interpreter, that his defense team has chosen not to have an interpreter here?" His response: "I would have to say yes."

Mr. Dutchie's Familiarity with the Criminal Justice System.
The United States submitted documentation of Mr. Dutchie's arrest record. During the evidentiary hearing, the Government noted that before Mr. Dutchie was arrested and charged with second degree murder, he had been arrested twelve times. The arrest record also shows that Mr. Dutchie has been represented a public defender at least once before, that he pleaded guilty to a number of charges (mostly related to intoxication and disorderly conduct), went to trial on two charges of shoplifting, and spent some time in jail for various offenses.

Dutchie relies on the Interview Transcript and expert opinions to support his contention that he did not understand the rights he was waiving, much less the consequences of waiving the rights.Mr. Dutchie relies heavily on the testimony of Dr. Eggington. But the court does not find Dr. Eggington's testimony particularly persuasive. His testimony was highly theoretical. He essentially testified that any individual whose reading skills do not equal or exceed the reading skills of a theoretical eleventh grader in his six month of school will not be able to fully understand the "high code" of the Miranda warning administered by law enforcement officers throughout this country every day based on United States Supreme Court precedent. According to Dr. Eggington, because Mr. Dutchie reads at a third grade level, barring all else, he could not, and therefore did not, understand his rights or the consequences of his waiver of rights.

The court must look to the totality of the circumstances. Dr. Eggington's testimony and opinion did not consider the practical reality of the situation before the court. Moreover, the Government brought out during its cross-examination of Dr. Eggington that certain facts apparent from the Interview Transcript are inconsistent with Dr. Eggington's opinion. For example, Agent Larson twice stated that Mr. Dutchie did not have to talk to Agent Larson if he did not want to. Dr. Eggington acknowledged that that was not "high code" like the warning's "right to remain silent" language. He also acknowledged that during the interview, Mr. Dutchie demonstrated his understanding of the different meanings and uses of "right," which does not suggest that Mr. Dutchie, with such purportedly limited language skills, could not properly communicate or evaluate the things Agent Larson was saying.Dr. Eggington did not consider Mr. Dutchie's criminal background or familiarity with the criminal justice system. He apparently placed little, if any, emphasis on the fact that Mr. Dutchie was coherent during the interview, appeared to understand the questions, and answered in a manner that was appropriate given Agent Larson's line of questioning. He dismissed Mr. Dutchie's ability to communicate during the interview as a "street level" form of communicating, rather than the "high code" that makes up Miranda.


Furthermore, case law supports a conclusion contrary to Dr. Eggington's professional opinion. For example, in Smith v. Mullin 379 F.3d 919 (10th Cir. 2004), the Tenth Circuit found that a defendant whose cognitive abilities mirrored those of a twelve-year old ("Every doctor who examined him placed his intellectual functioning in the range of mild to borderline mental retardation") nevertheless knowingly and intelligently waived his Miranda rights. See Id. at 933. In that case, a clinical neuropsychologist testified on behalf of the defendant and concluded, after administering a "Grisso test" (designed to test one's ability to waive Miranda rights), that the defendant could not knowingly and intelligently waive his Miranda rights. This did not persuade the trial court or the Tenth Circuit, which found under the totality of the circumstances that the defendant did in fact knowingly and intelligently waive his Miranda rights. The appellate court noted that "while Mr. Smith's intellectual functioning was limited, [the clinical neuropsychologist] testified that [the defendant] would understand the role of police officers and the concept of a criminal charge." Mullin, 379 F.3d at 933.

Also, the lone fact that the defendant's cognitive abilities were that of a twelve-year-old "does not render his waiver ineffective." Id. at 933-34. The Court also found it significant that the defendant understood the questions posed to him by the officers, and that he had "prior experience with the criminal justice system. In 1986, he retained counsel to defend him on an assault charge, eventually pled guilty, and served time in prison. The concepts encompassed by Miranda were not foreign to him." Id. at 934. The same can be said of Mr. Dutchie.The one distinguishing factor of Smith v. Mullin is that the officers slowly walked the defendant through the Miranda rights and the defendant stated that he understood those rights. But the fact that Agent Larson did not ask Mr. Dutchie if he understood his rights is not dispositive. The court looks at the totality of the circumstances, "where no single factor . . . is dispositive." United States v. Burson, 531 F.3d 1254, 1258 (10th Cir. 2008).

According to the Tenth Circuit, "a defendant must be impaired to a substantial degree to overcome his ability to knowingly and intelligently waive his privilege against self-incrimination." The facts of this case show that Mr. Dutchie was not impaired to a substantial degree. Although his reading abilities may not be higher than a theoretical third grader, his ability to understand what was going on around him and the consequences of his actions was apparent from the Interview Transcript and the audio recordings submitted by the Government. Under the totality of the circumstances, the court holds that, on August 13, 2007, Mr. Dutchie knowingly, voluntarily, and intelligently waived his Miranda rights. Accordingly, his statements to Agent Larson are admissible.

WHITE COLLAR CRIMINAL IMMIGRATION: President of Shipley Do-Nut Pleads Guilty

The Houston Chronicle reports that the President of Shipley Do-Nuts plead guilty to a misdemeanor offense of conspiring to employ unauthorized workers and sentenced to si-months probation.

"The case is one of several brought recently against employers and managers who hire illegal immigrants. Since October 2007, ICE agents have made more then 1,000 criminal arrests — of workers and others_ connected to worksite investigations. Out of those arrests, 116 involved company owners, managers, supervisors or human resources employees."

CRIMINAL IMMIGRATION: Federal Judge resentences to Avoid Deportation

A federal judge agreed to resentence a Greek national lawful permanent resident who had applied for citizenship, but was ordered deported due to an old federal sentence. Detroit Free Press. The original sentence had been a sentence of one year, and had been imposed prior to 1996.