REPORT AND RECOMMENDATION

LYNETTE C. KIMMINS, Magistrate Judge.

Pending before the Court is Defendant's Motion to Suppress or Preclude Evidence. (Doc. 51.) The government filed a response (Doc. 57), and Defendant replied (Doc. 59). This matter came before the Court for a hearing and a report and recommendation as a result of a referral, pursuant to LRCrim 57.6. Evidence and argument were heard on April 18, 2018 (Doc. 75),1 after which the Court took the matter under advisement. Trial is currently set for June 26, 2018. (Doc. 70.)

Defendant contends that his Miranda waiver was not knowing, intelligent and voluntary and his statement was not voluntary. Additionally, Defendant argues that the statements from the interrogation are unreliable, inadmissible hearsay and prejudicial under Rule 403. The Magistrate Judge recommends that the District Court, after its independent review, deny Defendant's motion to suppress his statements in entirety but grant preclusion of the agents' statements in English.

I. FACTUAL BACKGROUND

Defendant Abelardo Aguilar is charged with Conspiracy to Possess with Intent to Distribute Methamphetamine, Possession with Intent to Distribute Methamphetamine, Conspiracy to Import Methamphetamine, and Importation of Methamphetamine in violation of 21 U.S.C. Sections 846, 841, 963, 952 and 960. (Doc. 9.) On October 28, 2016, at approximately 12:00 p.m., Defendant Aguilar presented himself for entry into the United States from Mexico as a pedestrian, at the Morley Gate Port of Entry in Nogales, Arizona. A subsequent search of plastic bags he was carrying revealed 1.36 kilograms of methamphetamine hidden in stacks of hollowed-out tortillas. Defendant denied knowledge of the drugs. (Docs. 1, 9; Exs. 6, 24.2)

Homeland Security Investigations (HSI) Customs and Border Protection Task Force Officer (TFO) Oswaldo Bustamante testified that he participated in an interview of Defendant Aguilar on October 28, 2016, at the DeConcini Port of Entry with HSI Special Agent Christopher Woods. (RT at 11; Ex. 19 at 1.)3 Prior to entering the interview room, Defendant Aguilar was asked if he needed to use the restroom or would like some water. (RT at 21.) Agent Woods and TFO Bustamante were both dressed in street clothes with their weapons concealed. (RT at 29.) Defendant was not restrained. (RT at 22.) The interview began at approximately 1:30 p.m., in a 12 by 12 foot interview room with a desk and four chairs. (RT at 11.) TFO Bustamante testified that he participated in the interview as a translator and to assist the case agent as part of the task force team assigned to the investigation. (RT at 12, 33, 43-44.) He also testified that he is a law enforcement officer with experience interviewing suspects. (RT at 12.) The interview lasted approximately one hour and took place about one-and-a-half hours after Defendant's arrest. (RT at 12; Exs. 6, 18, 19, 24.)

The interview of Defendant Aguilar was conducted in Spanish by TFO Bustamante. (RT at 13.) TFO Bustamante grew up speaking Spanish, took a Spanish community college course, and has spoken Spanish daily for 22 years as a law enforcement officer working in Nogales and Sasabe, Arizona. (RT at 13-14.) TFO Bustamante is certified by the Department of Homeland Security to conduct official business in the Spanish language.4 (RT at 15.) As part of TFO Bustamante's duties, he has communicated with, and given presentations to, law enforcement counterparts from Mexico in Spanish. (RT at 17-18.) Defendant Aguilar is a native Spanish speaker and never indicated to TFO Bustamante that he did not understand his Spanish. (RT at 18.) At limited times during the interview, TFO Bustamante believed Defendant Aguilar understood some English and the Court's review of the video confirms that observation. (RT at 19; Exs. 6, 18, 19.)

TFO Bustamante explained to Defendant that he was under arrest because drugs5 were found inside the tortilla bag he was carrying. (Ex. 19 at 2-5.) TFO Bustamante then gathered biographical information from Defendant, including the fact that Defendant had been a citizen of the United States and lived in Nogales, Arizona for over thirty years. (Ex. 19 at 5-10, 27-28.) Thereafter, TFO Bustamante asked Defendant to read out loud his Miranda warnings from a form written in Spanish, and the officer informed Defendant that he could ask questions:

(Ex. 19 at 11-13; RT at 22-23.)

TFO Bustamante asked Defendant if he wanted to talk to an attorney or answer questions, to which the Defendant responded that he could be asked questions but still did not know why he was in custody. (Ex. 19 at 13.) TFO Bustamante explained that if Defendant was willing to answer questions he needed to sign the waiver form and instructed Defendant where to sign. (Ex. 19 at 14; RT at 25.) After Defendant signed the waiver, TFO Bustamante further explained that, if at any time he did not want to answer questions, he could stop. (Ex. 19 at 14-15; RT at 19, 23.) Immediately thereafter, TFO Bustamante again explained to Defendant that he was arrested because officers found drugs in the tortillas, and Defendant acknowledged he understood. (Ex. 19 at 16-19.) Defendant never indicated that he did not understand his rights nor that he could not understand TFO Bustamante. (RT at 18-19, 25.)

When asking Defendant questions, TFO Bustamante testified that, while he tried to set a polite, professional, and respectful tone, he used "border Spanish" and simple words to ensure Defendant understood. (RT at 20, 26, 35, 39.) Defendant's answers to TFO Bustamante's questions were responsive and appeared appropriate. (RT at 19-20; Exs. 6, 18, 19.) At no time during the interview did TFO Bustamante or Agent Woods use verbal threats or physical force, and Defendant freely answered all questions with no indication of distress or confusion. (RT at 21, 25, 28.) Defendant's demeanor was very calm and polite. (RT at 22.)

Federally certified court interpreter Carmen Noriega transcribed and translated Defendant's videotaped interview for the government. (RT at 53-54.) Ms. Noriega testified that she had no difficulties translating TFO Bustamante's statements to English and understood his Spanish. (RT at 54.) Based on her observations, Defendant's answers were responsive and appropriate to the questions being asked, and Defendant appeared to understand TFO Bustamante's Spanish. (RT at 54-55.)

The Government's expert witness, Jaime Fatas-Cabeza, and Defendant's expert witness, Yvette Citizen, each reviewed the video recording and the government and defense transcripts of Defendant's interview.6 (RT at 62, 120-21.) Mr. Fatas and Ms. Citizen describe TFO Bustamante using the academic term "heritage language speaker," meaning a person who learned the language in a family or community context, rather than through formal instruction; a "native language speaker" is indicative of that language being their first language. (RT at 68-70, 125-26.)

Mr. Fatas characterized TFO Bustamante as an Intermediate High Spanish speaker, pursuant to the American Council on the Teaching of Foreign Languages. This category of speaker is "able to converse with ease and confidence when dealing with routine, uncomplicated tasks and social situations requiring an exchange of basic information related to their work and areas of competence" such as law enforcement and suspect interviews in TFO Bustamante's case. (RT at 67, 102-03; Ex. 8 at 3.) Further,

(Ex. 8 at 3-4; RT 87-89.)

Mr. Fatas explained that both Defendant and TFO Bustamante had similar intimate and familiar registers, meaning that their level of Spanish would be commensurate with each other. (RT at 168-69.) Mr. Fatas is of the opinion that TFO Bustamante's Spanish complied sufficiently with standard Spanish in the region to allow meaningful exchanges with Defendant. (RT at 98.) Ms. Citizen agreed that a native speaker from one region (such as Defendant) would have an easier time understanding a heritage speaker from that same region (such as TFO Bustamante) and would likely understand mispronunciations in the context of the conversation. (RT at 157-58.)

Both Mr. Fatas and Ms. Citizen testified that there were instances where TFO Bustamante's mispronunciation, omissions, and ungrammatical constructions could have made comprehension difficult or impossible, and could impact a native Spanish speaker's ability to understand what he said. (RT at 90, 123; Ex. 8 at 11-12, 15.) Ms. Citizen and Mr. Fatas noted that, at times, TFO Bustamante used very simple Spanish terms, some English words, over-explanation, and circumlocution (describing something in a roundabout way if you don't know the words to use or you are trying to use a more simple vocabulary). (RT at 130, 140-41, 145-46, 169-70, 176.) However, in Mr. Fatas's experience, the depth and gravity of the errors made in TFO Bustamante's Spanish were not overwhelming. (RT at 84.) And, TFO Bustamante was capable of composing fairly long, intelligible statements with minor errors. (Ex. 8 at 15.) Mr. Fatas could not identify any instances in the interview where Defendant expressed that he did not understand TFO Bustamante's Spanish. (RT at 65-66.)

The experts agreed that most of the grammar, tense, and pronunciation errors (noted in the defense translation) were inconsequential and had no bearing on comprehension or the meaning of the particular exchange. (RT at 75, 103, 159-60; Ex. 8 at 10, 15.) Ms. Citizen was able to understand TFO Bustamante's Spanish and agreed that he was a proficient heritage language speaker. (RT at 101-02, 155.) Mr. Fatas testified that he understood TFO Bustamante's Spanish, his speech was generally intelligible, and Defendant's answers to the questions were responsive, logically consequential to the questions presented, and built on rapport. (RT at 63-64, 102; Ex. 8 at 3, 7.) Although Defendant Aguilar's level of fluency was higher and his Spanish more proficient than TFO Bustamante's, Mr. Fatas found the Spanish flow between Defendant and TFO Bustamante was mutually respectful and conducive to a meaningful exchange of information. (RT at 65-68, 175-76; Ex. 8 at 7.) Mr. Fatas noted several examples, including where Defendant begins to read aloud the Miranda form when asked in Spanish to do so; when asked in Spanish if he understood everything he read on the Miranda form, the Defendant responded, "Yeah, I understand"; and, when TFO Bustamante introduced the Miranda waiver form to Defendant and directed where to sign, Defendant took the pen and signed. (RT at 113-16; Ex. 19 at 10-14.) Moreover, Defendant spoke up and told TFO Bustamante when he did not understand, and TFO Bustamante would further explain. (RT at 163-64; Ex. 19 at 4; Ex. 18 at 4, 19, 36.)

Mr. Fatas testified that, while TFO Bustamante's skills as an interpreter are grossly inadequate, he is fairly proficient in the Spanish language. (RT 74-75, 101-02, 177; Ex. 8 at 15.) Likewise, Ms. Citizen opined that TFO Bustamante's skills as an interpreter were inadequate, and she identified the main errors with his interpreting as omissions as to what Agent Woods said and interpreting back to Agent Woods the dialogue between TFO Bustamante and Defendant. (RT at 135-36, 151.) Ms. Citizen testified that, while Defendant may have understood TFO Bustamante's Spanish questions and responded appropriately, that did not mean Defendant answered the questions posed in English by Agent Woods or that Defendant's Spanish responses were accurately translated to Agent Woods. (RT at 143.)

Mr. Fatas found the translation in both the government and Defendant's transcripts (Exs. 5, 18, 19) acceptable and accurate. (RT at 78-81, 104, 110; Ex. 8 at 15, 16.) However, both Mr. Fatas and Ms. Citizen felt Defendant's transcript was more accurate because it complied with the standard interpreter translation transcription protocol by including the source Spanish language and a legend/explanatory key, and noting background noise, grammar, pronunciation, and gender errors. (RT at 78-81, 110, 121; Ex. 8 at 15, 16.) The government's English transcript, on the other hand, is an edited, sanitized, corrected version of the statements in Spanish and makes TFO Bustamante appear as a more fluent, accurate Spanish speaker than he really is. (RT at 82, 121; Ex. 8 at 17.)

II. DISCUSSION

A. Agent Bustamante as an Interpreter versus an Interrogator

Defendant argues that TFO Bustamante and Agent Woods violated his due process rights by failing to provide him with a certified and competent Spanish-English interpreter during his interrogation and, as a result, Defendant did not understand his rights and his statements were not fairly interpreted for police consideration in their investigation. (Doc. 51 at 12-13.) Defendant provides no case law for the assertion that a certified interpreter is required in a police interview.

Both experts agreed that TFO Bustamante is not an adequate interpreter. However, in the context of this case and for purposes of the interview, TFO Bustamante was a law enforcement officer with authority to ask Defendant questions. Additionally, he was part of the task force and a counterpart to the investigation involving Defendant. (RT at 12, 33, 43-44.) In a few instances, it appeared that Defendant knew enough English to answer biographical questions. (RT at 19; Ex. 19 at 5-6.) For the majority of the interview, however, Defendant turned to TFO Bustamante for the questions in Spanish. (Exs. 6, 24.) After reviewing the entirety of the interview video, coupled with the government's and Defendant's transcripts, it is clear Defendant relied on the Spanish questions by TFO Bustamante rather than Agent Woods's English questions. Neither the expert witnesses nor Ms. Noriega had difficulties translating or understanding TFO Bustamante's Spanish, which was intelligible and proficient for a heritage language speaker. (RT at 53-54, 63, 74-75, 101-02, 155.) In addition, the evidence demonstrated that Defendant's answers were responsive, logically consequential, and appropriate to the questions asked. (RT at 54-55, 63-64.) There were no instances where Defendant indicated he did not understand TFO Bustamante's Spanish and his responsive answers indicated a sufficient level of understanding for a meaningful exchange of information. (RT at 65-66, 68.) On the occasions he did not understand, Defendant sought and received clarification from TFO Bustamante. (RT at 163-64; Ex. 19 at 4; Ex. 18 at 4, 19, 36.)

The Court finds that TFO Bustamante was acting in his capacity as a law enforcement officer when conducting the interview of Defendant in Spanish. Because TFO Bustamante's proficiency in Spanish allowed for him to communicate adequately with Defendant, Defendant's due process rights were not violated by the absence of a certified interpreter. The Court will evaluate the adequacy of the Miranda warning and waiver and the voluntariness of Defendant's statement based solely on the Spanish exchange between TFO Bustamante and Defendant.

B. Miranda

Defendant argues that his waiver was not knowing, intelligent, and voluntary because deficiencies in TFO Bustamante's Spanish caused errors in the translation that resulted in Defendant being confused and pressured to sign the waiver. (Doc. 51 at 9-10.) For incriminating statements obtained during a custodial interrogation to be admissible, any waiver of Miranda rights must be voluntary, knowing, and intelligent. See Miranda v. Arizona, 384 U.S. 436, 479 (1966). A waiver is not voluntary if it is the product of "intimidation, coercion, or deception." Moran v. Burbine, 475 U.S. 412, 421 (1986). A waiver is knowing and intelligent if, under the totality of the circumstances, it is "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Id.; United States v. Rodriguez-Preciado, 399 F.3d 1118, 1127 (9th Cir. 2005) (citations and quotations omitted). There is a presumption against waiver, and the Government bears the burden of proving a valid waiver by a preponderance of the evidence. See Colorado v. Connelly, 479 U.S. 157, 168 (1986); United States v. Bernard S., 795 F.2d 749, 751 (9th Cir. 1986). The Court must evaluate the Miranda warnings in totality when determining if they were sufficient. See United States v. Miguel, 952 F.2d 285, 288 (9th Cir. 1991).

The fact that TFO Bustamante is a heritage language speaker and Defendant is a native speaker is insufficient to undermine the validity of the waiver. Three certified interpreters had no difficulties translating or understanding TFO Bustamante's Spanish. (RT at 53-54, 63, 74-75, 101-02, 155.) Defendant never gave any indication that he did not understand his rights, nor at any time during the interview did he communicate that he did not understand TFO Bustamante. (RT at 18-19, 25.) Despite TFO Bustamante's failings as a translator, as argued by Defendant, the video and transcripts establish that Defendant did not have difficulty understanding TFO Bustamante's Spanish and appropriately responded to his questions.

Defendant's argument — that he did not understand his Miranda warnings due to a language barrier caused by TFO Bustamante's Spanish — is unsubstantiated. Defendant seemed to understand that he was arrested because of drugs found in the tortilla bags he was carrying into the United States from Mexico. (Ex. 19 at 2-5, 16-19.) TFO Bustamante provided Defendant with his Miranda warnings using a preprinted Spanish form and asked Defendant to read it out loud, which he did so without questions. (RT at 22-23; Ex. 19 at 10-13.) Thereafter, TFO Bustamante asked Defendant if he understood everything he read and the Defendant answered, "Yeah, I understand." (Ex. 19 at 11-13.) TFO Bustamante then asked Defendant if he wanted to talk to an attorney or answer questions, to which Defendant responded he could be asked questions but wanted to know why he was in custody. (Ex. 19 at 13.) TFO Bustamante explained the need to complete a waiver form before questioning, and Defendant signed the form (Exs. 2, 19 at 14; RT 19, 23). See Bernard S., 795 F.2d at 753 n.4 ("Although not dispositive, a written waiver of one's Miranda rights is `strong' evidence that the waiver is valid.") (quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979)). Immediately thereafter, TFO Bustamante clarified that Defendant could stop answering questions at any time and again explained to Defendant why he had been arrested. (Ex. 19 at 14-19; RT 19, 23.) Defendant then answered the questions posed by TFO Bustamante. (Exs. 5, 6, 18, 19, 24.)

The Court finds Defendant knew and understood his Miranda rights and knowingly and intelligently waived same. Further, there is no evidence the waiver was obtained through coercion, deception, or intimidation. Having considered the above factors, along with the testimony and evidence, the Court finds that the government has met its burden of proving a valid waiver of Miranda rights.

C. Voluntariness of Defendant's Statement

Defendant argues that his statements were involuntary due to coercive police conduct. He contends he was given inaccurate Spanish translations regarding his rights and reason for arrest, and he was bullied by TFO Bustamante who pushed through his waiver of rights and repeatedly cut off Defendant's explanations, using at times "No, no, no. . . ." (Doc. 51 at 11-12.) Defendant further argues that the cumulative effect of TFO Bustamante's broken Spanish left him guessing at the meaning of the questions and attacked by agents unsatisfied with his efforts. (Doc. 51 at 11-12.)

The test for determining the voluntariness of a suspect's confession is whether, considering all the circumstances, the government obtained the statement by physical or psychological coercion or by inducement so that the suspect's will was overcome. See United States v. Coutchavlis, 260 F.3d 1149, 1158 (9th Cir. 2001) (citing Haynes v. Washington, 373 U.S. 503, 513-14 (1963)). A waiver is not voluntary if it is the product of "intimidation, coercion, or deception." Moran, 475 U.S. at 421. The standard for determining the voluntariness of a statement is the same as the standard for the voluntariness of a Miranda waiver. See Colorado v. Connelly, 479 U.S. 157, 169 (1986). The circumstances to be considered include: (1) whether there was police coercion; (2) the length of the interrogation, its location and its continuity; (3) whether police advised the suspect of his rights; and (4) whether there were any direct or implied promises of a benefit. Clark v. Murphy, 331 F.3d 1062, 1072 (9th Cir. 2003), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63, 71 (2003). A statement will be found involuntary if agents "use coercive means to undermine the suspect's ability to exercise his free will." Henry v. Kernan, 197 F.3d 1021, 1026 (9th Cir. 1999). "In short the true test of admissibility is that the confession is made freely, voluntarily, and without compulsion or inducement of any sort." Haynes, 373 U.S. at 513-14.

The interrogation was not lengthy (approximately one hour) and Defendant was offered water and the bathroom before it began. (RT at 12, 21.) Throughout the entire interview, the plain-clothes agents sat away from Defendant, who was not restrained. (RT at 22.) TFO Bustamante grew up speaking Spanish in the home, took a college-level Spanish class, is certified by DHS as proficient in Spanish, has used Spanish in the course of his 22-year employment, and regularly conducts interviews in Spanish. (RT at 13-18.) Both the government and defense expert witnesses testified that TFO Bustamante was a proficient heritage language speaker and any errors regarding grammar, gender, pronunciation, circumlocution, etc., were inconsequential and did not affect comprehension or understanding of his Spanish. (RT at 63-66, 68, 74-75, 101-02, 155.) At no point during the interrogation did Defendant appear as if he did not understand the questioning, his responses were appropriate to the questions asked, and Defendant and TFO Bustamante engaged in a fluid, back-and-forth conversation. When he did not understand a word or question, Defendant was comfortable in seeking clarification from TFO Bustamante. (RT at 163-64; Ex. 19 at 4; Ex. 18 at 4, 19, 36.)

Defendant points to the agents' tone, contending that they were aggressive, yelled, and interrupted. Defendant relied upon certain portions of the interview to support his argument and the Court closely reviewed those segments of the video, as well as the entire video multiple times. There are several points in the interview when there is interrupting or overlapping conversation on the part of both Defendant and TFO Bustamante. However, there is nothing in the interview to indicate TFO Bustamante was aggressive, coercive, or undermined Defendant's ability to exercise his free will. To the contrary, the Court's observation is consistent with the expert's opinion that the conversation was mutually respectful and conducive to a meaningful exchange of information. (RT at 65-68.) The agents did not threaten Defendant, promise him anything, or induce him with a benefit of any kind. There were no misleading tactics used against him. The interview was not confrontational and there is no point at which the agents yelled. TFO Bustamante briefly raised his voice and said "No, no, no" multiple times to either clarify, try to finish, or further explain a question. Close review of the transcript does not suggest Defendant's will was overborne. After reviewing the totality of the circumstances, the Court finds that Defendant's statement was voluntary.

D. Hearsay and Rule 403 Prejudice

Defendant argues that the entirety of Defendant's interview should be precluded as hearsay and due to the risk of unfair prejudice. The Court analyzes this question in two parts, looking separately at the English portions of the interview and the Spanish portions of the interview.

Defendant argues that the English questions and statements by Agent Woods and TFO Bustamante's English translations of Defendant's Spanish answers are inadmissible hearsay. Further, Defendant argues that Agent Woods should not be permitted to testify about Defendant's statements during the interview because he heard only TFO Bustamante's translation, and Agent Bustamante's English translations do not represent statements of Defendant. The Court agrees that these English statements are inadmissible hearsay. Moreover, any probative value is substantially outweighed by the risk of unfair prejudice pursuant to Rule 403. "[T]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403. Here, Agent Woods's questions were not translated verbatim to Defendant. Defendant responded only to TFO Bustamante's Spanish questions. Additionally, Agent Woods's comments in response to TFO Bustamante's translation of Defendant's answers are not relevant. Further, TFO Bustamante's English translations of Defendant's answers are hearsay, cumulative, and do not present the best evidence. Therefore, the questions posed by Agent Woods in English, statements made by Agent Woods, and TFO Bustamante's English translation of Defendant's answers should be precluded. Further, Agent Woods should not be permitted to testify about any statements made by Defendant Aguilar.

Defendant also argues that his Spanish responses to TFO Bustamante's questions in Spanish should, likewise, be precluded pursuant to Rule 403. Almost the entirety of Defendant's argument is focused on the issue of translation, which is relevant only to the English statements. The one relevant argument is Defendant's contention that the probative value of the interrogation is minimal because he did not confess to knowing or suspecting he was bringing drugs into the United States. However, Defendant's statements are probative of his knowledge. Evaluating the testimony under Rule 403, the probative value is not substantially outweighed by the danger of unfair prejudice, confusion, or misleading the jury. Defendant's statements made in Spanish, as well as TFO Bustamante's questions in Spanish, are admissible.

III. CONCLUSION AND RECOMMENDATION

It is recommended that, after its independent review of the record, the District Court deny in part and grant in part Defendant's Motion to Suppress or Preclude Statements (Doc. 51). It is further recommended that the District Court deny Defendant's Motion to Suppress based on a violation of due process, Miranda, or involuntariness of the statement.

It is further recommended that the District Court grant Defendant's Motion to Preclude any questions posed by Agent Woods in English, any statements made by Agent Woods, and TFO Bustamante's English translation to Agent Woods of Defendant's answers. In line with this recommendation, the government should redact all English from the video/transcript and use only TFO Bustamante's and Defendant Aguilar's Spanish statements translated into English by a certified interpreter. The Court notes that Agent Woods is not visible on the video screen during the interview. It is further recommended that Agent Woods be precluded from testifying about Defendant Aguilar's statements.

It is further recommended that each party be permitted to use their own English translation of the interview. Although both experts felt Defendant's transcript was more accurate and that the government's transcript was a corrected version, it also was determined that the translations in both the government's and Defendant's transcripts were acceptable and accurate.

Pursuant to Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file written objections within 14 days of being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived.