Opinion
CR-15-01390-003-TUC-JGZ (EJM)
10-12-2021
United States of America, Plaintiff, v. Abelardo Rodriguez-Arvizu, Defendant.
REPORT AND RECOMMENDATION
ERIC J. MARKOVICH UNITED STATES MAGISTRATE JUDGE.
Pending before the Court is the defendant's Motion to Suppress his statements made to agents with the Federal Bureau of Investigation (“FBI”). [Doc. 144.] The defendant alleges the following grounds in support of his motion: (1) a violation of Federal Rule of Criminal Procedure 4(c)(3)(A) because the FBI agents did not show him the arrest warrant or advise him of the charges upon his arrest; (2) a Fifth Amendment violation based on FBI agents questioning him after he previously invoked his Miranda rights, including his right to counsel, while in Border Patrol custody prior to FBI agents arresting him on the warrant; (3) a Sixth Amendment violation because he did not knowingly, intelligently, and voluntarily waive his right to counsel prior to the FBI interview; and (4) a violation of McNabb-Mallory/18 U.S.C. § 3501(c) because he was not promptly presented to a magistrate judge following his arrest by Border Patrol, and as a result, his confession to the FBI obtained two days after his arrest by Border Patrol was involuntary. As discussed in excruciating detail below, the Court recommends that the District Court grant the Motion to Suppress based on the first three grounds.
FACTUAL BACKGROUND
On September 7, 2016, a federal grand jury sitting in Tucson, Arizona, issued a Superseding Indictment charging the defendant and other individuals with the following offenses: (1) Conspiracy to Interfere with Commerce by Robbery, in violation of 18 U.S.C. § 1951; (2) Possession of a Firearm in Furtherance of a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i); (3) Conspiracy to Possess with Intent to Distribute Marijuana, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(D) & 846; and (4) Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). [Doc. 30.]
The charges in the Superseding Indictment stem from an incident that occurred on October 24, 2014, during which a Border Patrol agent shot and killed a twenty-three-year-old Mexican National. Border Patrol agents were patrolling in the desert just outside of Tucson, Arizona, in an area where “rip crews” operated. Generally speaking, a “rip crew” is a group of armed individuals who steal drugs, usually marijuana, from Mexican Nationals transporting drugs on foot into the United States. When one of the agents came upon the suspect, he identified himself as a Border Patrol agent and yelled at the suspect to stop. As the agent was pursuing the suspect, the agent saw another suspect closer to him and began pursuing the second suspect. Because this suspect appeared to grab for a weapon in his waistband, the agent shot the man, who later passed away. No other persons were found or arrested by Border Patrol agents at the scene of the shooting.
An arrest warrant for the defendant was issued as a result of the Superseding Indictment. Because the defendant's whereabouts were unknown, FBI Agent Michelle Terwilliger, who is the case agent, entered the warrant, as well as details about the defendant, the offenses, and her contact information, into various computer databases used by law enforcement. As a result, if the defendant had contact with law enforcement in the United States, that law enforcement agency would become aware of the arrest warrant when a criminal records check was done using these databases. And, in turn, Agent Terwilliger would be contacted so she could execute the arrest warrant.
On November 18, 2019 - five years after the shooting and three years after the return of the Superseding Indictment and issuance of the arrest warrant - the defendant was arrested by Border Patrol agents in Sasabe, Arizona on a suspected immigration violation. The defendant was transported from Sasabe to the Tucson Border Patrol Station. The defendant went through “booking” procedures at the Tucson station. However, on November 19, 2019, he was taken to the Douglas Border Patrol Station because the Tucson station was over capacity.
At the Douglas station at around 5:30 p.m., a criminal and immigration history query revealed the arrest warrant. Upon discovering the warrant, a supervisory Border Patrol agent asked Border Patrol Agent Verduzco to “process” the defendant. Part of the processing included advising the defendant of his Miranda rights. Because the defendant invoked his Miranda rights, Agent Verduzco did not question the defendant. At around 6:00 p.m., either during processing or shortly thereafter, a supervisory Border Patrol agent contacted Agent Terwilliger to let her know the defendant was in Border Patrol custody. Agent Terwilliger asked Border Patrol to transport the defendant to the Tucson Border Patrol Station so she did not have to drive to Douglas that evening and could instead pick up the defendant the following morning in Tucson.
The defendant arrived at the Tucson Border Patrol Station early in the morning (about 1:30 a.m.) on November 20, 2019. At around 9:45 a.m., Agent Terwilliger and FBI Agent Oscar Ramirez, who is a Spanish speaker, arrested and took custody of the defendant. During the ride to the FBI office in Tucson, the defendant allegedly made spontaneous statements to and asked questions of Agent Ramirez, some of which agents claim pertained to the charges that led to his arrest by the FBI. Once at the FBI office in Tucson, the defendant was advised of his Miranda rights in Spanish by Agent Ramirez. The defendant allegedly waived his rights and agreed to speak with Agent Ramirez. After the interview, the defendant was transported to the Federal Courthouse in Tucson for his initial appearance before a magistrate judge at 2:00 p.m.
A. The Motion to Suppress
On June 1, 2021, the defendant filed a Motion to Suppress his statements to FBI agents on the grounds detailed above. The defendant alleges a violation of Federal Rule of Criminal Procedure 4(c)(3)(A) because he was not shown the arrest warrant or explained the charges upon his arrest and argues that suppression of his statements is an appropriate remedy for that violation. The government argues that this rule was not violated because, even though the defendant was not shown the arrest warrant or informed of the charges, he demonstrated that he knew the charges that led to his arrest by the FBI.
The defendant also argues that suppression of his statements is warranted because his Fifth Amendment rights were violated when FBI agents questioned him after he invoked his Miranda rights while in Border Patrol custody. The government argues that there was no violation because the FBI agents were legally entitled to question the defendant about non-immigration related charges after he later validly waived his Miranda rights. The government alternatively argues that the defendant's reinitiation of a conversation with FBI agents allowed the agents to question him once he later validly waived his Miranda rights.
The defendant further argues that his statements should be suppressed based on a violation of his Sixth Amendment right to counsel, which attached upon issuance of the Superseding Indictment, because he did not “knowingly, intelligently, and voluntarily” waive that right. The government argues that the video and transcript of the defendant's interview clearly demonstrates that the defendant's waiver of his rights was knowing, intelligent, and voluntary.
Finally, the defendant argues that his statements should be suppressed under McNabb-Mallory/18 U.S.C. § 3501(c) because they were obtained over six hours after his arrest by Border Patrol on November 18, 2019, and prior to his presentment to a magistrate judge on November 20, 2019. The government argues that the defendant's statement was clearly obtained within six hours of his arrest by FBI agents, and the defendant's arrest by Border Patrol agents is not relevant to the analysis under McNabb-Mallory/18 U.S.C. § 3501(c).
B. The Evidentiary Hearing
The Court held an evidentiary hearing on the suppression motion over the course of three days: June 25, 2021, July 2, 2021, and July 23, 2021. The following witnesses testified: FBI Agent Michelle Terwilliger; Border Patrol Agent Hector Verduzco; FBI Agent Oscar Ramirez; and ATF Agent (and former Border Patrol Agent) James Cauble, Jr. Their testimony is set forth below.
1. FBI Special Agent Michelle Terwilliger
a. Direct Examination
Michelle Terwilliger has been a Special Agent with the Federal Bureau of Investigation (“FBI”) for almost 18 years and has spent her entire career at the FBI in Tucson, Arizona. (6/25/21 Tr. at 8.) She was previously employed with the Pennsylvania State Police as a DNA forensic scientist. Id. Agent Terwilliger has been assigned to the violent crime squad at the FBI for the past 12 years; she has also worked in the cybersquad doing child pornography investigations, the drug squad, and the counterterrorism squad. Id. at 9.
On October 24, 2014, Agent Terwilliger became aware of a shooting that occurred just outside of Tucson. Id. Specifically, she learned that a Border Patrol Agent had shot and killed an individual. Id. at 10. When Agent Terwilliger arrived at the scene of the shooting, she suspected that the criminal activity that led to the shooting involved a “rip crew.” Id. She explained that a rip crew usually involves a group of individuals armed with weapons who steal drugs being transported by marijuana backpackers. Id. Border Patrol agents advised her that there were five individuals in this rip crew. Id. at 10-11. The Evidence Recovery Team discovered the following items that appeared to belong to the rip crew and/or the backpackers: weapons, carpet booties, body armor, camouflage clothing, two phones, and backpacks containing food and water.
The following morning an anonymous source provided information about individuals involved in the rip crew which led to the shooting. Id. at 12. The source said that two individuals, the defendant and possibly Melvin Caballero or Bustamante, were involved in the rip crew. The source also stated that the defendant's girlfriend was named Carla Navarro, and they resided together at 232 Columbia Street. Id. at 12-13.
Subsequently, a confidential informant told law enforcement information about individuals who were part of the rip crew. Id. Specifically, the informant stated that he had seen an individual named Amaro-Lopez with a handgun and carpet booties and wearing body armor. Id. at 14. Also, the informant saw Caballero-Bustamante the day after the shooting and Caballero-Bustamante told the informant that there was a shooting, and that Border Patrol had shot and killed Amaro-Lopez. Id. at 14-15. Caballero-Bustamante also told the informant that, in addition to Amaro-Lopez, individuals with the nicknames of Granas, Pelushin, and Chapito were with him when the shooting occurred. Id. at 15.
Agent Terwilliger testified that on May 26, 2015, she learned that Caballero-Bustamante had been arrested on immigration charges by the Border Patrol. Id. Agent Terwilliger and another FBI agent travelled to the Casa Grande Border Patrol Station to conduct an interview of Caballero-Bustamante. Id. at 16. He told the FBI agents that he was present when the shooting took place, he had a gun with him, and named other individuals involved in their attempt to steal marijuana. Id.
On July 29, 2015, a four-count indictment was returned against Caballero-Bustamante. Id. at 17. In September of 2016, a Superseding Indictment was returned which added the defendant and an individual named Jose Carlos Lemus-Veliz. Id. An arrest warrant for the defendant was issued as a result of the Superseding Indictment. Id. at 19; Gov. Ex. 5.
Agent Terwilliger testified that when an arrest warrant is issued for a person whose whereabouts are unknown, she requests “our NCIC operator in Phoenix to place the warrant in the system, ” as well as the defendant's name, date of birth, and the phone number for the Phoenix FBI office. Id. at 20. She explained that inputting this information in the NCIC database would ensure that she is called by a law enforcement officer if the defendant is ever arrested on other charges. Id. Agent Terwilliger testified that she also entered the warrant, the defendant's name and date of birth, and her cell phone number into the TECS database. Id. at 21. She explained that the TECS database is used primarily by Border Patrol for illegal aliens. Thus, if the defendant was arrested by Border Patrol and a TECS query is run, the Border Patrol agent would become aware of the warrant and contact her. Id.
On November 19, 2019, at approximately 6:00 p.m., Agent Terwilliger received a call on her cell phone from an agent at the Douglas Border Patrol Station who advised her that the defendant was in custody at that station. Id. at 18, 21-22. Agent Terwilliger does not believe she asked why the defendant had been arrested (although she assumed it was on immigration charges), when he was arrested, or where he was arrested. Id. at 23. Agent Terwilliger asked the agent if the defendant could be transported to the Tucson Border Patrol Station where she could pick him up the next morning (November 20, 2019). Id. at 22. Agent Terwilliger explained that she made that request so she “didn't have to drive down to Douglas to arrest him.” Id. If the defendant was transported to Tucson, she “could process him and interview him and take him to the marshals.” Id.
Sometime during the evening of November 19, 2019, Agent Terwilliger asked FBI Agent Oscar Ramirez to accompany her to the Tucson Border Patrol Station the next morning, in part, because he is a fluent Spanish speaker. Id. at 24-25. Up until that point, Agent Ramirez was not involved in the investigation of the charged offenses. Id. at 25.
On November 20, 2019, at approximately 9:43 a.m., Agent Terwilliger and Agent Ramirez executed the arrest warrant at the Tucson Border Patrol Station and received custody of the defendant so that he could be transported to the FBI office in Tucson. Id. at 23-26. Agent Terwilliger's intention was to “interview him and also process him.” Id. at 27. Agent Terwilliger explained that she needed to bring the defendant to the courthouse at around noon for his initial appearance at 2:00 p.m. Id.
Agent Terwilliger testified that she drove to the FBI office and Agent Ramirez sat in the backseat with the defendant. Id. at 27-28. She estimated that the drive took 8-10 minutes depending upon traffic conditions. Id. at 29. During the car ride Agent Terwilliger heard the defendant and Agent Ramirez speaking to each other in Spanish, but she could not understand what was said because she does not speak Spanish. Id. at 31. Agent Ramirez later told her the statements made by the defendant. Id.
When they all arrived at the FBI office, Agents Terwilliger and Ramirez interviewed the defendant. Id. at 29. Agent Terwilliger agreed with government counsel that she was “in a unique position” since she did not speak Spanish. Id. at 30. At times, Agent Ramirez relayed to her information provided by the defendant, and she provided Agent Ramirez with information that she “thought might be helpful” for the interview. Id. at 31. The defendant was shown photographs of individuals during the interview and he identified the individuals. Id. at 32. She estimates that the interview, which was recorded, lasted about 53-54 minutes. Id. at 32-33.
After the interview concluded, agents fingerprinted the defendant and took a DNA sample pursuant to his arrest. Id. at 32. She and Agent Ramirez transported the defendant to the courthouse for his initial appearance. Id. at 34. Agent Terwilliger was present at the initial appearance, and she believes that the defendant met with his attorney in the courtroom before the magistrate judge took the bench. Id. at 35.
Government counsel asked whether Agent Terwilliger makes it a practice to read or explain a charging document (i.e., a criminal complaint or indictment) to a defendant whom she has arrested pursuant to a warrant. Id. Agent Terwilliger testified that “[t]ypically we tell them we have a warrant for their arrest.” Id. Agent Terwilliger agreed with government counsel that she does not “make it a practice to carry around the charging documents, like the complaint or the indictment, and show them to the people that you're arresting[.]” Id. at 36. She testified that, in her experience, the defendant's attorney is the person who shows or explains the charging documents to the defendant prior to the initial appearance. Id.
b. Cross-Examination
On cross-examination, Agent Terwilliger first confirmed that her recollection is that she was notified on November 19, 2019 at about 6:00 p.m. by a Border Patrol agent (whose name she cannot recall) that the defendant was in custody at the Border Patrol Station in Douglas. Id. at 37. However, she did not memorialize in a report when she was notified or the name of the agent who contacted her. Id. She also confirmed that she contacted Agent Ramirez later that evening to enlist his help the next morning. Id. at 37. Agent Terwilliger testified that she also notified the assigned Assistant U.S. Attorney (“AUSA”) that the defendant had been arrested by Border Patrol and advised the AUSA of her plan to have the defendant brought from Douglas to the Tucson Border Patrol Station. Id. at 38. She does not recall if she told the AUSA that her plan was to interrogate the defendant, or if the AUSA just assumed she would do that. Id.
Agent Terwilliger confirmed that sometime after the Superseding Indictment was issued, she made arrangements to have the arrest warrant for the defendant, a description of the defendant, and his date and place of birth, all entered in the NCIC database. Id. at 45-46. She again explained that she entered this information into NCIC in case the defendant was arrested or detained by another law enforcement agency, such as Border Patrol, and an NCIC query was run. Id. at 46. Agent Terwilliger was asked to explain how she would be notified if an NCIC query revealed a warrant that she had entered into that database. Id. at 47. She testified that she would be notified by an FBI operator who works in the Phoenix Division. Id. She explained that the phone number for the Phoenix operator would be noted in NCIC and the operator would contact her. Id. Agent Terwilliger agreed with defense counsel that she also included in the NCIC entry that the instant offenses were violent and involved firearms, as well as a narrative about the crimes charged against the defendant. Id. at 47-48.
Defense counsel asked how quickly she is notified once another law enforcement agency learns from the NCIC database that there is an active FBI warrant for an arrestee. Id. at 48. Agent Terwilliger did not know the answer to that question. She testified that in the case at hand, if the defendant was arrested on November 18, 2019 at around 7:00 p.m., she was notified about a day later on November 19, 2019 at 6:00 p.m. Id. When asked by defense counsel if that seemed “fairly normal” or “a long time before you were notified, ” Agent Terwilliger explained that she is not sure when Border Patrol entered the defendant's fingerprints (or name and date of birth) into NCIC, which would trigger a query and ultimately reveal the warrant. Id. at 48-49.
The Border Patrol agent who contacted her on November 19, 2019, did not provide her with any information about why the defendant was arrested, but she assumed it was for an immigration offense. Id. The Border Patrol agent also did not tell her when the defendant was arrested or provide her with “any information with what procedures he had gone through[.]” Id. Agent Terwilliger again testified that she asked the agent who contacted her to arrange for the defendant to be transported to the Tucson Border Patrol Station. Id. at 50. When asked by defense counsel if she made the transport request because she did not want to drive to Douglas, Agent Terwilliger testified that “I've known that they send people to Tucson, so I figured why not catch a ride.” Id. She presumes, but is not sure, that she made the transport request to a management-level agent with Border Patrol. Id.
Agent Terwilliger testified that when she picks up a defendant who is in the custody of another law enforcement agency, she does not ask for information regarding when the person was arrested, the circumstances of the arrest, or whether the person has been previously advised of his rights. Id. at 50. She again explained that she got a phone call from a Douglas Border Patrol agent who advised her that the defendant was in custody, and she “asked if they could keep him based on the arrest warrant and we would execute it the next day.” Id. at 51. But she “didn't ask anything that they had done.” Id. She also did not obtain any documentation from Border Patrol when she took custody of the defendant. Id. at 61. In response to defense counsel's question as to whether it was important to know whether the person had been advised of his rights and whether the person invoked his rights, Agent Terwilliger testified that “[h]onestly, I didn't even think about it.” Id. She added that in other cases she has not asked other agencies “what they have done prior to us picking up that individual.” Id.
Agent Terwilliger testified that she likely told Agent Ramirez that the defendant was under indictment, and she believes she printed some documents that pertained to the charges for him to review. Id. at 51-52. She also likely told Agent Ramirez that the defendant had not yet been interviewed because he was a fugitive, and that she wanted to talk with the defendant. Id. at 52. Agent Terwilliger testified that she did not ask Agent Ramirez to just act as a translator. Id. at 53. Rather, she wanted Agent Ramirez, as a Spanish speaker with years of experience as an FBI agent, to conduct the interview. Id.
Testimony then turned to the execution of the arrest warrant. Agent Terwilliger testified that they executed the arrest warrant at approximately 9:43 a.m. on November 20, 2019. Id. In response to defense counsel's question of whether they told the defendant that “we've got [a] warrant for you and we are arresting you on an indictment, ” Agent Terwilliger testified that she does not know in this case, but “[t]ypically we say . . . we are arresting you on an FBI warrant.” Id. However, she does not know if that happened in this case because it would have been done in Spanish by Agent Ramirez. Id. at 53-54. In response to defense counsel's question whether she told Agent Ramirez to advise the defendant that “he's under arrest because he is under indictment in this district, ” Agent Terwilliger testified that “I believe we showed him our IDs. I don't know what was said. ” Id. at 54. Agent Terwilliger added that she could not recall if she asked Agent Ramirez “just to tell [the defendant] there is a warrant or if he told him that on his own or if Border Patrol told him that.” Id.
Agent Terwilliger again testified that during the drive from the Border Patrol Station to the FBI office she heard some conversation in Spanish between the defendant and Agent Ramirez. Id. She did not understand what was said because she does not speak Spanish. Id. at 55. Agent Terwilliger did not ask Agent Ramirez to ask the defendant questions or try to get him to talk. Id. at 54. She also did not tell Agent Ramirez not to talk to the defendant or ask him questions. Id. at 55. She explained that if Agent Ramirez was a new agent, she may have advised him of those things; but he is an experienced agent who was aware that the defendant needed to be Mirandized before they could talk with him or ask him questions. Id.
When they arrived at the FBI office, the defendant was taken to an interview room and questioning likely began about 20-25 minutes later. Id. at 55. She does not specifically recall the reason for the delay in starting the interview, but it was likely either because she was trying to get the recording equipment to work or if she was “getting the forms into the marshal or pretrial or calling the judge.” Id. at 56.
In response to defense counsel's question of whether she was familiar with Rule 5 of the Federal Rules of Criminal Procedure, Agent Terwilliger testified that she was “not immediately familiar.” Id. Defense counsel then asked about her familiarity with Rule 4, specifically an arresting officer's obligations with regard to an individual arrested on a warrant. Id. at 57. Agent Terwilliger responded that she would have to look at the rule, but “[w]e let him know that . . . there's an arrest warrant for him.” Id. Defense counsel followed up and asked whether Agent Terwilliger is aware of whether there is an obligation “on the part of an arresting officer executing a warrant on an indictment with regard to what he should or she should say to a suspect[.]” Id. Agent Terwilliger responded as follows: “[a]s far as what they're arrested for, that there is an arrest warrant and to make sure they understand why they're being arrested.” Id. Agent Terwilliger testified that she did not advise the defendant of those things because she does not speak Spanish. Id. When asked to concede that she did not ask Agent Ramirez to make those advisals, Agent Terwilliger's nonresponsive testimony was “[b]ecause he knew why we were arresting him.” Id.
Defense counsel asked if Agent Terwilliger's testimony on direct examination was that because the defendant had an initial appearance at 2:00 p.m., the obligation falls on defense counsel or the magistrate judge to advise the defendant of the basis for his arrest and/or offenses alleged in the indictment. Id. at 57-58. She responded that “[a]s far as the actual written indictment, yes.” Id. at 58. Defense counsel then asked whether Agent Terwilliger's understanding is that she or Agent Ramirez only needed to tell the defendant that he is under arrest, but not explain the charges. Id. Agent Terwilliger provided the following nonresponsive answer: “I guess he gave an indication that he knew why he was being arrested by the FBI.” Id. Defense counsel followed up by asking whether Agent Terwilliger's testimony is that the defendant should know what the charges are, and you have no obligation to tell him the charges. Id. She responded that “I knew he would be told the exact charges whenever he met with his attorney, but he knew the incident for which we were arresting him for.” Id. at 58. As a result, Agent Terwilliger did not tell the defendant the “exact charges listed on the indictment.” Id. In response to defense counsel's question of whether Agent Terwilliger has an obligation to advise the defendant of the charges, she testified that she has “an obligation to make sure they understand why they're being arrested, ” and she feels that she did that. Id. at 58-59.
Testimony turned briefly to the booking or processing procedure at the FBI office. Agent Terwilliger testified that she took the defendant's fingerprints and a DNA sample, which are done for every arrest. Id. at 59. Agent Terwilliger testified that two DNA samples are taken: one based on the defendant's consent and another as part of the processing process as a result of his arrest. Id. at 60. Agent Terwilliger is of the view that there is legal authority for taking a DNA sample of an arrestee. Id.
c. Redirect Examination
On redirect examination, Agent Terwilliger confirmed that she heard Agent Ramirez and the defendant speaking to each other in Spanish during the ride to the FBI office. Id. at 68. Agent Ramirez told her what was discussed during the car ride prior to the defendant's interview. Id. Based on that conversation, Agent Terwilliger was not concerned that the defendant did not understand why he had been arrested. Id. Agent Terwilliger testified that Border Patrol must have learned about the FBI warrant from the TECS database because the Border Patrol agent called her cell phone, and she had entered that phone number into the TECS database. Id. at 69. Agent Terwilliger did not enter her cell phone number in the NCIC database; she entered the phone number for the Phoenix office, and the operator would not have given out her cell phone number. Id. at 70.
Agent Terwilliger was asked to explain why it never occurred to her to ask if Border Patrol agents had Mirandized the defendant. Id. at 71. Her response was “[b]ecause I would Mirandize him before we interviewed him on the specific charges of the warrant.” Id. Agent Terwilliger only wanted to speak with the defendant about the charges in the Superseding Indictment. Id. at 71-72. She was not interested in potential immigration law violations and did not ask the defendant about immigration matters during the FBI interview. Id. at 72. Finally, Agent Terwilliger testified that because the defendant was likely in Border Patrol custody based on immigration violations, she was not interested in any Miranda warnings that Border Patrol may have given to the defendant in their effort to interview him about immigration offenses. Id.
d. Questioning by the Court
In response to the Court's question, Agent Terwilliger testified that she would have still Mirandized the defendant once he came into her custody even if she had been told by Border Patrol that he was Mirandized and invoked his right to remain silent and requested counsel. Id. at 74. In response to the Court's question as to her legal basis for that course of action, she testified as follows:
if he would have invoked his right to remain silent, I think we need to wait approximately two hours before we would reapproach him, but we never approached him in the first place for that right.
[a]s far as an attorney, if he wanted an attorney, I would think that's specific to the charge which they are questioning him for, so in arresting him on the FBI charges, it would separate, and we would need to Mirandize him, and he could either invoke, you know, based on wanting to talk with us about that incident versus the immigration.Id. at 74-75.
In light of Agent Terwilliger's testimony that the defendant knew why he was arrested by the FBI, the Court asked if Agent Terwilliger recalled exactly what Agent Ramirez told her regarding the defendant's understanding of the charges. (Id. 75-76.) She testified that she doesn't “recall the charges, but the incident for why we were arresting him, ” but she cannot recall exactly her conversation with Agent Ramirez. (Id. at 76.) The Court asked if the “incident” meant a “drug rip, ” and Agent Terwilliger responded as follows: “[y]eah, what would have happened on October 24th, 2014, that he knew that's why he was being arrested, because he had made comments related to that.” Id.
2. Border Patrol Agent Hector Verduzco
a. Direct Examination
Hector Verduzco has been employed as a Border Patrol Agent for six-and-a-half years and was a correctional officer for over nine years before joining the Border Patrol. Id. at 79. He is currently stationed at the Douglas Border Patrol Station. On November 19, 2019, Agent Verduzco was working the swing shift (2:00 p.m. to 10:00 p.m.) at the Douglas Border Patrol Station. Id. at 80-81. He was assigned to “processing, ” which means that he was creating the A-File for arrestees without legal status in the United States. Id. at 81.
At this point in the testimony, Agent Verduzco was presented with an exhibit called a “Subject Activity Log, ” and questioned about entries in that log. Id. at 81; Gov. Ex. 1. Agent Verduzco testified that while he is familiar with these types of logs, he has never entered information into such a log. Id. at 83. He testified that the log reflects that the defendant was arrested in Sasabe, Arizona, and on November 18, 2019, at approximately 10:03 p.m., he arrived at the Border Patrol Station in Tucson. Id. at 84. The log also reflects that a book-in was completed at 10:03 p.m. Id. Agent Verduzco explained that the book-in procedure involves taking a defendant's fingerprints and running the defendant “through the system” - e.g., NCIC, EARMS, TECS - to find out if a defendant has any criminal or immigration history. Id. at 85-86.
In light of the log entry reflecting that the defendant went through this book-in procedure at 10:03 p.m. on November 18, 2019, government counsel asked Agent Verduzco to explain how Border Patrol did not find out that the defendant had an FBI arrest warrant until approximately 6:00 p.m. on November 19, 2019. Id. at 87-88. Agent Verduzco had difficulty answering this question. He explained it is possible that Border Patrol knew about the FBI warrant on November 18, 2019 at 10:03 p.m. Id. at 89. But then he agreed with government counsel that he has encountered situations where the “system where you book someone in is nonoperative, ” and that could explain the 20-hour delay in Border Patrol learning of the FBI warrant. Id. at 90.
Government counsel then turned to a log entry labeled “In transit TCA, ” which first reflects a date and time of November 19, 2019, and then reflects that the defendant was received at a different duty station at 12:30 p.m. the same day. Id. at 92. Agent Verduzco testified that this entry means that the defendant left the Tucson Border Patrol Station at 8:53 a.m. on November 19, 2019, and was received at the Douglas Border Patrol Station at 12:30 p.m. Id. Agent Verduzco testified that it is not abnormal for a defendant who has been in custody for almost 11 hours at the Tucson station to be sent to another station. Id. He explained that such a transfer occurs when a station is “overrun with work” and is at capacity, and help is needed from another station to process arrestees. Id. at 93. When an arrestee is transferred from Tucson to Douglas, the agents in Douglas would not know how long the arrestee was at the Tucson station. Id. at 94.
Agent Verduzco testified that he “processed” the defendant, and his role in processing was the creation of documents that would ultimately be put in his A-File. Id. at 95-96. Agent Verduzco estimated that processing likely started around 8:00 p.m. because the log notes that processing was complete at 8:33 p.m. Id. at 96. Agent Verduzco recalls being asked to process the defendant by a supervisor because the defendant had a warrant. Id. at 96-97. He explained that it is “pretty normal” for him to find out that an arrestee has a warrant. Id. at 97.
Agent Verduzco testified that the next log entry at 9:33 p.m. on November 19, 2019, reflects that the defendant was back in transit to the Tucson station, and the subsequent entry reflects that he arrived at that station at 1:34 a.m. on November 20, 2019. Id. He testified that the final log entry reflects that the defendant was “permanently booked out” at 9:43 a.m. on November 20, 2019. Id. at 101. The log does not reflect the law enforcement agency that the defendant was turned over to, and Agent Verduzco does not know who took custody of the defendant. Id. Agent Verduzco was not involved in contacting the FBI to let them know the defendant was in Border Patrol custody, so he does not know who contacted the FBI. Id. at 102.
b. Cross-Examination
On cross-examination, Agent Verduzco testified that, based on his experience, the defendant would have been identified (presumably by name) by the time he got to the Tucson station on November 18, 2019. Id. at 104. The arresting agent would have made the identification and noted it in a field write-up sheet, which would have accompanied the defendant to the Tucson station. Id. As a result, the booking agent at the Tucson station would have already known, at a minimum, the defendant's name. Id. at 105. Agent Verduzco confirmed that the book-in procedure involves taking fingerprints that are run through a computer database which would reveal prior arrests and/or warrants. Id. at 105106. Agent Verduzco agreed with defense counsel that running the defendant's fingerprints through the computer database would have occurred on November 18, 2019 at around 10:03 p.m. at the Tucson station. Id. at 106.
Agent Verduzco again testified that the defendant was initially taken to the Tucson station after his arrest in Sasabe, and then taken to the Douglas station where he arrived on November 19, 2019 at 12:30 p.m. Id. He again explained that such a transfer from the Tucson station occurs quite often because that station has a lot of work. Id. Agent Verduzco testified that the defendant would not be rebooked in Douglas because he is already in the system. Id. at 107.
Agent Verduzco confirmed that a supervisor asked him to process the defendant because he had a warrant, but he does not recall the name of his supervisor. Id. at 108, 111. In response to counsel's question of whether Agent Verduzco processed the defendant immediately after being instructed to do so, Agent Verduzco testified that he processed the defendant “[a]s his turn came up.” Id. at 112. Agent Verduzco again testified that the query of computer databases for criminal and/or immigration history would have been done at the initial booking at the Tucson station on November 18, 2019 at 10:03 p.m. Id. at 109. However, Agent Verduzco later testified that he could not recall if the Tucson station booked the defendant or if that was done at the Douglas station. Id. at 110. When defense counsel pointed out that the Subject Activity Log reflects a book-in was done in Tucson, Agent Verduzco attempted to explain (although not well) that sometimes the criminal and/or immigration history is obtained later, after the initial book-in. Id. Agent Verduzco testified that it was not unusual that the report he prepared does not mention the arrest warrant. Id. at 112. He explained that the warrant would be noted on the printout of the defendant's immigration and criminal history. Id. But Agent Verduzco cannot recall if he printed out that document or if that was done at the Tucson station and forwarded to him. Id. at 112-113.
Testimony then turned to the advice of rights administered to the defendant by Agent Verduzco. Agent Verduzco testified that he routinely advises “criminal aliens” of their rights even if he does not have the intention to question them. Id. at 113. However, Agent Verduzco agreed with defense counsel that he advised the defendant of his rights because the defendant had a warrant for his arrest, so he knew the defendant had been charged with some criminal offense. Id. at 113-114. Agent Verduzco did not tell the defendant about the arrest warrant. Id. at 114. Agent Verduzco testified that he reads the advice of rights form to an arrestee and allows the arrestee to read it if they so choose. Id. at 114. Agent Verduzco does not have a “distinct memory” of reading the advice of rights form to the defendant. Id. He also does not recall the defendant's response when asked if he was willing to waive his rights. Id. at 115. However, because the advice of rights form was not signed by the defendant or Agent Verduzco, the conclusion that he draws is that the defendant did not waive his rights. Id. Agent Verduzco testified that he did not question the defendant, other than obtaining biographical information, because the defendant did not agree to speak with him. Id. at 115.
c. Redirect Examination
Agent Verduzco testified on redirect examination that when he advised the defendant of his rights, he told the defendant that “all my questions have to do with biographical and immigration.” Id. at 116. At no time did Agent Verduzco tell the defendant that he wanted to speak with the defendant about anything other than immigration offenses. Id. at 117.
d. Questions from the Court and Follow-up Questions from Counsel
Although Agent Verduzco has never run criminal or immigration history checks in the various databases, he testified that a warrant entered into a database would “show up” if a check was done. Id. at 117. Agent Verduzco testified that the agents in the field who arrested the defendant would not have access to any of the databases to run a criminal or immigration history check. Id. at 122. Agent Verduzco testified that the “book-in” procedure at the Tucson station would have included running a check of any criminal or immigration history. Id. at 123. He testified that the database check usually takes five to ten minutes, but if the system goes down, it could be hours. Id. With respect to the “processing” that occurred at the Douglas station, Agent Verduzco testified that another records check is not run as part of processing. Id. at 124. But he added that he does not remember if the Douglas station already had the results of the records check (presumably when the defendant first arrived at the Douglas station) or received it later. (Id.)
Agent Verduzco confirmed that Border Patrol processes arrestees regardless of whether they are going be charged with a crime or have a warrant. Id. at 125. Although Agent Verduzco testified on cross-examination that the defendant did not “jump the line” for processing once the supervisor alerted him about the warrant and asked that the defendant be processed, Agent Verduzco admitted that he “got right on it.” Id. at 126. Agent Verduzco testified that he never references a warrant for an arrestee in his report; he does note prior apprehensions because they are immigration offenses. Id. at 128-129.
The Court asked Agent Verduzco the following question about the questions he would have asked the defendant if he waived his Miranda rights: “Just so I'm clear, so would you have asked - if Mr. Arvizu says, yeah, I'm willing to talk with you and waive my right to an attorney, you would have asked him immigration-related questions?” Id. at 130. Agent Verduzco responded: “[o]nly.” Id. He further testified he would not have asked the defendant questions about the warrant. Id. at 129-130. However, he added that if the defendant waived his Miranda rights, he would have been turned over to somebody within the station that does custodial interviews and that person would have addressed the warrant, even if the warrant was from another law enforcement agency. Id. at 130. He then clarified that Border Patrol would notify the law enforcement agency who was involved in issuing the warrant to obtain guidance on whether to conduct an interview. Id. at 131.
The Court then inquired about whether Agent Verduzco told anyone that the defendant invoked his rights. Specifically, the Court said: “Obviously Mr. Rodriguez-Arvizu told you he didn't want to speak with you and was invoking his right to counsel. Did you communicate his invocation of his rights to anybody else, your supervisor or any other person?” Id. at 135. Agent Verduzco testified that the supervisor who instructed him to process the defendant would have reviewed his report and learned that the defendant invoked his rights. Id.
Government counsel had additional questions as a result of the Court's questions. Agent Verduzco testified that he was not involved in contacting FBI Agent Terwilliger about the defendant being in Border Patrol custody. Id. at 132. In fact, he was not even aware that a call had been made to Agent T erwilliger. Id. at 133. Agent Verduzco clarified that it is not commonplace for Border Patrol to conduct questioning of arrestees who have warrants from other law enforcement agencies; that is why Border Patrol calls the other agency for guidance. Id.
In response to defense counsel's follow-up questions, Agent Verduzco again testified that it takes about five to ten minutes to get a response on a query of an arrestee's criminal and immigration history, unless the system is down and then it could take hours. Id. at 134. Agent Verduzco does not know how long it took to obtain the defendant's criminal and immigration history. Id.
3. FBI Agent Oscar Ramirez
a. Direct Examination
Oscar Ramirez has been a Special Agent with the FBI for over 21 years and has been based in Tucson since October 2019. (7/2/21 Tr. at 5-6.) Thus, he had been working in the FBI Tucson office for about a month when Agent Terwilliger contacted him to assist with the transportation and interview of the defendant on November 20, 2019. Agent Terwilliger contacted him either by text message or phone the prior evening and advised him that she needed assistance with an interview that needed to be conducted in Spanish. Id. at 6. The next morning he reviewed reports provided by Agent Terwilliger about the investigation. Id. He then accompanied Agent Terwilliger to the Tucson Border Patrol Station to pick up the defendant and transport him to the Tucson FBI office. Id. at 7. He estimates that the drive from the Border Patrol station to the FBI office took about 15 minutes. Id. Agent Terwilliger drove, and he sat in the backseat with the defendant. Id. at 8.
Agent Ramirez testified that he did not initiate a conversation with the defendant during the car ride, but the defendant did on several occasions. Id. He testified that when the defendant made a statement, he generally advised the defendant that “I could not talk to him there inside the vehicle, that we would have an opportunity to talk to him at the FBI office.” Id. Agent Ramirez did not otherwise respond to the defendant's statements. Id. at 8-9. In terms of statements made by the defendant, Agent Ramirez recalls him asking if he was going to be able to make a phone call and “[h]e asked what he was being charged with.” Id. at 9. Agent Ramirez testified that the defendant also “made some statements that were clearly the reason why we were there to talk to him.” Id. For instance, at one point the defendant asked if this was about Edgar. Id. He then said “I did not shoot him. I only heard the shots.” Id. He also said that Edgar was shot by Border Patrol. Id. The defendant asked if he was going to get “eight years.” Id. at 10. After making these statements, the defendant “said on his own that he was ready to talk.” Id. Agent Ramirez testified that he told the defendant, on more than one occasion, “that we could not talk inside the vehicle, that he would have an opportunity to talk once at the FBI office.” Id.
After they arrived at the FBI office, the defendant was placed in an interview room and provided with water. Id. at 12. Agent Ramirez and Agent Terwilliger did not have a specific agreement as to who would conduct the interview, except that Agent Ramirez would speak to the defendant in Spanish. Id. at 10-11. But once the interview began, Agent Ramirez initiated and conducted most of the interview with some direction from Agent Terwilliger. Id. at 11. The interview was videotaped and there was a back-up audio recording. Id.
Agent Ramirez testified that he did not engage in “chitchat” with the defendant to build rapport, because it appeared to him that “based on the comments [the defendant] made on the drive to the FBI office, that he was ready to talk.” Id. at 12-13. Prior to beginning the interview, Agent Ramirez used the Spanish waiver of rights form (FD-395) to review Miranda rights with the defendant. Id. at 13; Gov. Ex. 6. The reference to 10:38 a.m. on the top of the form means that is when Agent Ramirez “started the advice of rights.” Id. at 15. After Agent Ramirez reviewed a right with the defendant, he placed a checkmark on the form next to the right listed. Id. at 13-14. Agent Ramirez testified that he attempted to obtain a verbal acknowledgement from the defendant that he understood a right, but on several occasions the defendant nodded his head to indicate that he understood a right. Id. at 14. Notwithstanding the lack of a verbal response in some instances, Agent Ramirez testified that he was not concerned that the defendant did not understand a specific right. Id. Agent Ramirez explained that he wrote “voluntary” in Spanish on the bottom of the form, because he emphasizes the last sentence on the form that the defendant can stop the interview. Id. Agent Ramirez testified that, in his opinion, the defendant understood what the FBI was “there to talk to him about at the beginning.” Id. at 15.
Testimony turned to the defendant's comments during the interview about an attorney. Agent Ramirez first testified that when the defendant was Mirandized, he never asked if he could have an attorney. Id. at 16. However, during the rights advisal, the defendant did say, “words to the effect of ‘Do I have an attorney or what?'” Id. Government counsel asked Agent Ramirez if he agreed that the defendant on at least three occasions said, “Do I need an attorney or what?” Id. at 17. Agent Ramirez generally agreed, but added that he disagreed with one translation and believes what the defendant said was: “An attorney, how do I get one or what?” Id. When the defendant raised questions about an attorney, Agent Ramirez testified that he “redirected him to him having mentioned an attorney, and I asked him specifically if he wanted to continue the interview without the presence of an attorney.” Id. at 18. The defendant always responded that he wanted to continue the interview without an attorney present. Id. at 17.
At one point in the interview, the defendant mentions an attorney in relation to the involvement of his girlfriend or wife. (Id. at 18.) Agent Ramirez explained that he believed the defendant had concerns that “his cooperation, his statements, were going to get his girlfriend in trouble.” Id. at 18. Agent Ramirez testified that he told the defendant that she would have been arrested years ago if she was in trouble. Id. Agent Ramirez testified that he paused the interview and “ensured that [the defendant] was willing to talk to us without an attorney.” Id. The defendant asked “what we recommended.” Id. at 19. Agent Ramirez told the defendant that “we could not make any recommendations, that that was his decision to make.” Id. Again, the defendant chose to continue the interview. Id.
Direct testimony concluded with the circumstances surrounding the execution of the arrest warrant, specifically, any conversation with the defendant while executing the warrant. Agent Ramirez testified that he told the defendant “that he was arrested, he was being arrested on a federal warrant, that we were FBI agents, and that we were going to take him for [processing] and an interview at the FBI office.” Id. at 20.
b. Cross-Examination
Agent Ramirez again testified that: (1) he has been an FBI agent for about 21 years; (2) he was only in Tucson 3-4 weeks before the defendant's arrest; (3) he was asked by Agent Terwilliger the day before the arrest to accompany her to arrest the defendant and attempt an interview; (4) Agent Terwilliger needed a Spanish-speaking agent; and (5) he reviewed some reports about the instant case the morning of the arrest. Id. at 20-22. Agent Ramirez does not recall if Agent Terwilliger told him why they were arresting the defendant - i.e., the charges - but he knew there was an arrest warrant for the defendant, and he knew the nature of the defendant's involvement. Id. at 22-23. Agent Terwilliger did tell him that the FBI had not yet been able to obtain a statement from the defendant and asked him to attempt an interview. Id. at 23.
Agent Ramirez did not tell the defendant that, in addition to the video recording, he was also recording the interview on a device located inside of his binder. Id. at 24-25. Agent Ramirez does not believe that he had a recording device with him during the transport of the defendant to the FBI office. Id. at 25.
Agent Ramirez did not obtain any information or documentation from Border Patrol agents regarding when the defendant was arrested or whether he had been advised of his Miranda rights, and he did not ask for any such information. Id. at 25, 35. As a result, Agent Ramirez was not aware that the defendant had been brought from the Douglas Border Patrol Station to the Tucson Border Patrol Station at 1:30 a.m. on November 20, 2019. Id. at 25-26. He also was not aware that the defendant had been in custody for a couple of days. Id. at 27. Agent Ramirez testified that he has picked up arrestees from other agencies over the course of his career. Id. at 26. Sometimes he finds out when a person was arrested by the other agency, but again, he did not do that in the case at hand. Id. He also sometimes asks officers with the other agency if the arrestee has been advised of Miranda rights and/or invoked their rights; but he did not do that in this case. Id. In response to defense counsel's question of whether Agent Ramirez did not ask for this information from Border Patrol because he was not dealing with immigration offenses, Agent Ramirez testified that “[m]ostly it's because I was not the case agent” and was only assisting Agent Terwilliger. Id. at 26-27. Agent Ramirez agreed with defense counsel that he was relying on Agent Terwilliger “to find such information out.” Id. at 27.
Testimony turned to the defendant's questions and statements made during his transport to the FBI office. Agent Ramirez agreed with defense counsel that one of the questions asked by the defendant was whether he would be able to make a telephone call, and that Agent Ramirez told him that we “will discuss that later.” Id. at 28-29. Agent Ramirez testified that he never later discussed that topic with the defendant. Id. at 29. Agent Ramirez also agreed with counsel that the defendant asked “what his charges were, ” and Agent Ramirez's response was again “[w]e'll discuss that later.” Id. Again, Agent Ramirez testified that he did not later discuss the charges with the defendant. Id. Agent Ramirez agreed with counsel that the defendant “asked if it had anything to do with Edgar, ” and Agent Ramirez did not respond. Id. Agent Ramirez again testified that the defendant then made statements about the shooting and that Border Patrol did it. Id. Agent Ramirez agreed with counsel that he told the defendant that “the FBI could not discuss that in the vehicle, ” and that he would have an opportunity to discuss that at the FBI office. Id. Agent Ramirez testified that he did not respond to the defendant's question of whether “he was going to get eight years.” Id. at 29-30. Agent Ramirez confirmed that he testified on direct examination that based on these questions and statements, the defendant “was ready to talk.” Id. at 30. Agent Ramirez added that the defendant said: “I'll talk; let's do it.” Id. at 30.
Defense counsel then inquired into Agent Ramirez's familiarity with Federal Rule of Criminal Procedure 4, which, according to defense counsel, addresses how arresting officers are directed to handle persons arrested on a warrant. Id. at 33. Agent Ramirez testified that he is “familiar with the things that the FBI tells us, but I'm not familiar with that rule[.]” Id. In response to defense counsel's question as to Agent Ramirez's duty once he arrests someone on a warrant, Agent Ramirez testified that “[w]e execute the warrant, ” “tell the person that he is under federal arrest, ” and “[a]t some time, we give him a copy of the warrant.” Id. Agent Ramirez confirmed that he told the defendant that he was being arrested on a warrant, but he did not tell the defendant whether he had been indicted. Id. Neither he nor Agent Terwilliger had a copy of the indictment when they arrested the defendant. Id. at 34. In response to defense counsel's question of whether Agent Ramirez has an obligation to tell a defendant the charges, Agent Ramirez testified: “[n]ot the indictment.” When asked if he has an obligation to explain “generally what the charges are, ” Agent Ramirez testified that he is obligated to tell a defendant what he's being arrested for[.]” Id. However, he testified that he did not do that in this case because the defendant knew why he had been arrested. Id.
Agent Ramirez agreed with defense counsel that prior to advising the defendant of his Miranda rights, he asked the defendant questions regarding his personal history (e.g., name, date of birth, place of birth). Id. at 35. However, Agent Ramirez did not ask the defendant about his level of education or whether he had been previously arrested. Id. at 35-36. Agent Ramirez agreed that he told the defendant prior to the interview that “there's a lot of rules in the FBI[.]” Id. at 36. He also testified that he had previously told the defendant that there are “many rules” during the ride to Tucson when he advised the defendant “that we could not talk inside the vehicle.” Id. Agent Ramirez also agreed with counsel that the defendant had already told him “some things” during the car ride before he had advised the defendant of his rights at the FBI office. Id. at 36-37.
With respect to the advisal of Miranda rights, Agent Ramirez agreed with counsel that when he told the defendant that he had to advise him of his rights, the defendant responded “[w]hat do you mean my rights?” Id. at 37. However, Agent Ramirez disagreed that this question meant that the defendant “was unaware of what Miranda rights are[.]” Id. at 38. Agent Ramirez explained that after the defendant asked this question, he told the defendant that he would read his rights and “ask him [for] permission to talk to us.” Id. at 39. After Agent Ramirez explained the right to remain silent and asked the defendant if he understood that right, the defendant provided an inaudible response but nodded which indicated to Agent Ramirez that he understood that right. Id. Similarly, the defendant provided an inaudible response but nodded when asked if he understood that any statement made can be used against him. Again, Agent Ramirez took that non-verbal response to mean that the defendant understood that right. Id. The defendant again nodded when asked if he understood his right to have counsel advise him before answering any questions, which again Agent Ramirez took to mean that the defendant understood that right. Id. at 39-40.
Defense counsel noted that after Agent Ramirez asked the defendant to provide audible responses to questions, the defendant says: “Well, you just told - it's just that you tell me for me to remain silent. You should have told me that at the very beginning. You or I wouldn't have talked since I got into the car.” Id. at 40. When asked how Agent Ramirez interpreted those statements, Agent Ramirez responded that if he told the defendant about his right to remain silent and right to counsel in the vehicle “he wouldn't have said anything.” Id. at 41.
Testimony turned back to specific rights explained to the defendant. The defendant again nodded when Agent Ramirez asked him if he understood his right to have counsel “designated for you before any questioning is carried out, if you so desire.” Id. at 41. Agent Ramirez agreed with counsel that he asked the defendant for a verbal response, and the defendant said “yes.” Id. at 41-42. Counsel asked Agent Ramirez to explain why he told the defendant that the most important part in the questioning is that “you can tell us when to stop, ” and “[b]efore speaking, before being able to tell you about things that we know, we need your permission.” Id. at 42. Agent Ramirez testified that he “emphasize[s] the fact that the last statement in the advice of rights shows the voluntary nature of the interview, that he can stop the interview at any time.” Id. However, Agent Ramirez agreed with counsel that the last statement in the Miranda warnings does not say “that if he says yes, then you can tell him what you know about the case.” Id. Agent Ramirez also agreed that he was conveying to the defendant, at least in part, that he could not tell the defendant what the FBI knows or “answer any of your questions until you waive your rights.” Id. at 42-43. Agent Ramirez also conceded that, at this point, the defendant had not been specifically told the charges. Id. at 43.
Defense counsel noted that prior to obtaining the defendant's signature on the rights form, the defendant says: “Well, do I need an attorney or what?” Id. Counsel further noted that Agent Ramirez responds: “Well, that's your right. You can speak to us or not speak to us, but we need your signature giving us permission to be able to speak to you without an attorney.” Id. In response to counsel's question of whether Agent Ramirez is referring to not being able to tell the defendant about the charges until after he signs the form, Agent Ramirez testified that he was trying to answer the defendant's question. Id. Agent Ramirez agreed with counsel that the defendant signed the waiver form after saying: “Go ahead and get it over with; let whatever happens happen.” Id. at 44.
Testimony then turned to the substance of the interview. Before Agent Ramirez could ask the defendant personal questions, the defendant says: “I'm in it up to my neck.” Id. at 44. Agent Ramirez then tells the defendant what the FBI wants to talk to him about. Id. at 45. Specifically, Agent Ramirez says: “We're not interested in what you were arrested for, immigration. What we're interested in is what happened about five years ago.” Id. Agent Ramirez agreed with defense counsel that at some point he says to the defendant “you guessed it” in reference to the defendant saying, “Is this about Edgar?” Id. However, the testimony is unclear as to when these statements were made. Agent Ramirez agreed that, up until this point, he had still not told the defendant that he is under indictment or shown him a copy of the indictment. Id. at 45-46. He also had not told the defendant about the specific charges. Id. at 46. Agent Ramirez again testified that he simply told the defendant he was being arrested pursuant to a federal warrant. Id. at 45. He disagreed with counsel's assertion that the defendant was curious about “what this is all about.” Id. at 46. Agent Ramirez again testified that he believes the defendant “knew exactly what we were going to talk about, ” and why he was arrested. Id. He testified that he does not know if the defendant knew about the indictment, and that he was not obliged to tell the defendant about the indictment. Id. He explained that he was trained that his obligation is to tell an arrestee that there's a federal warrant for his arrest, and “[i]f we had the warrant, we could give it to him there. But we didn't.” Id. at 46-47. In response to counsel's question of whether an agent is required to tell an arrestee about the charges even if the agent does not have a copy of the indictment, Agent Ramirez testified that he is trained that if an arrestee asks “about his charges, that we should tell him.” Id. at 47. Agent Ramirez conceded that the defendant asked about the charges, and he did not tell the defendant the charges. Id.
Counsel then turned his questioning to the defendant's concerns about continuing the interview because he did not want to get his girlfriend or her brother in trouble if he cooperated with the FBI. Id. at 48-49. Specifically, Agent Ramirez testified that the defendant said “words to the effect of, ‘I'm not going to get her in trouble, right? If not, so they can give me an attorney.'” Id. at 49. Agent Ramirez explained that he told the defendant that his girlfriend had cooperated with law enforcement and had not been arrested or charged with a crime. Id. at 49-50. Agent Ramirez disagreed with counsel that he told the defendant his girlfriend had not been arrested or charged with a crime to suggest to the defendant that he might not get arrested if he cooperated. (Id. at 50.) Counsel pointed out that the defendant said: “If that's what's going to happen, then I want an attorney.” Id. In response, Agent Ramirez testified that this statement “was referencing if his cooperation was going to get her in trouble.” Id. Agent Ramirez further explained that the defendant “never asked for an attorney, but he mentioned an attorney in reference to he did not want to cooperate if it was going to get his girlfriend in trouble.” Id. Agent Ramirez denied counsel's assertion that he told the defendant that his girlfriend was not in trouble so the defendant would not request an attorney. Id.
c. Redirect Examination
Government counsel first questioned Agent Ramirez about the conversation during the ride to the Tucson FBI office. With respect to the defendant's questions about being able to make a phone call and the charges, Agent Ramirez agreed with government counsel that he told the defendant that we would discuss those things later. Id. at 52. Agent Ramirez explained that he did not want to have any conversation with the defendant in the car about why he was arrested because he was not ready to conduct an interview. Id. at 53.
Government counsel then turned to Agent Ramirez's obligations when conducting an arrest pursuant to a warrant. Id. Agent Ramirez testified that if an arrestee asks about the criminal charges, the FBI requires an agent to tell the arrestee the identity of the interviewing agent and “the nature of the interview.” Id. at 53-54. Agent Ramirez testified that the defendant already knew about the nature of the interview because “[h]e talked about the incident, ” specifically, “[t]hat it involved Edgar, that he did not shoot him and that it was the Border Patrol who did it and that he was ready to talk.” Id. at 54. The defendant also mentioned “eight years, ” which Agent Ramirez later learned was significant because that was the sentence imposed on a co-defendant. Id. Agent Ramirez testified that the defendant would be presented with the indictment at his initial appearance, and that his attorney would be present to explain the indictment. Id. at 55-56. Agent Ramirez has never tried to explain an indictment to a person he is interviewing because that is not his job. Id. at 56.
Counsel then turned back to the Miranda rights advisal. Agent Ramirez again testified that the defendant said “what rights” just prior to being advised of his Miranda rights. Id. at 56. Agent Ramirez then went on to explain the defendant's rights. Id. Agent Ramirez testified that he watched the defendant nod his head in response to questions about whether the defendant understood a right. Id. at 57. Agent Ramirez also testified that if the defendant did not respond verbally or nod or shake his head in response to a question, he would have “began to ask questions whether he understood what I had just told him.” Id. But he never had to do that because the defendant either nodded his head or responded verbally to indicate that he understood a specific right. Id.
d. Questions from the Court
The Court first inquired as to why Agent Ramirez did not just Mirandize the defendant once he started talking in the car in an effort to keep him talking. Id. at 59. Agent Ramirez testified he did not consider that an interview and did not want to conduct an interview inside the vehicle. Id.
Agent Ramirez did not have a copy of the arrest warrant when he picked up the defendant at Border Patrol, and he does not know if Agent Terwilliger had a copy of the warrant. Id. at 60. Agent Ramirez did not know the actual charges against the defendant listed in the warrant, either when he picked up the defendant or during the interview. Agent Terwilliger told him generally what the case was about to prepare him for the interview. Id. His general understanding was that the defendant was involved in a conspiracy to hijack drug traffickers, and there was a shooting where a member of the conspiracy was killed. Id. Again, Agent Ramirez did not summarize or explain the charges to the defendant, and Agent Terwilliger did not ask him to do so. Id. at 61. In response to the Court's question whether the defendant made any statements that led Agent Ramirez to believe the defendant knew the specific charges listed the arrest warrant, Agent Ramirez testified that “[h]e mentioned the eight years, and he also asked what his charges were.” Id. at 62. The defendant also said he knew “that this was separate from whatever he was detained or arrested with the immigration charges, ” and he knew that the FBI had custody of him and that he was being arrested on federal charges. Id. In response to the Court's question of “what federal charges did you believe he knew existed, ” Agent Ramirez testified that “[t]he federal charges involving the incident where one of his partners was killed.” Id. Finally, in response to the Court's question of whether the interview focused on the shooting or did it include the drug charges, Agent Ramirez testified that “[i]t was mainly that, but it encompassed the day leading up to that and what happened afterwards.” Id. In terms of “what happened afterwards, ” Agent Ramirez explained that “after the shooting, what he did, where he went, how he got there.” Agent Ramirez added that he asked if the defendant had done “it” before, meaning steal drugs. Id. at 63.
4. FBI Agent Michelle Terwilliger
a. Further Redirect Examination
Agent Terwilliger was recalled as a witness to testify primarily about her review of the defendant's A-File and what it revealed about the timeline on November 19, 2019. Id. at 64. She testified that there is a document in the A-File reflecting a “TECS communication” hit at 5:22 p.m. on November 19, 2019. Id. at 65. The document also notes to contact her if the defendant is arrested and lists her cellphone and desk numbers. Id. Agent Terwilliger again testified that she was contacted by Border Patrol and notified of the defendant's arrest at around 6 p.m. on November 19, 2019. Id. The A-File also reflects that an NCIC query of the defendant's criminal history was run at 5:28 p.m. on November 19, 2019. Id. Agent Terwilliger testified that there is no documentation in the A-File that indicates that Border Patrol became aware of the FBI warrant prior to the TECS hit. Id. However, she also testified that a document with the word “booking” at the bottom notes that the defendant does not have a criminal history, and “the TECS shows the 18th.” Id. at 67. She does not “know who ran that, ” but the document references the Douglas Border Patrol Station and “it didn't show the warrant at that point.” Id.
b. Recross-Examination
Agent Terwilliger agreed with defense counsel that nothing in the A-File suggests that the defendant was not arrested on November 18, 2019. Id. at 69. She also agreed that there is nothing in the A-File to dispute that the defendant was booked in Tucson on November 18, 2019 at 9:03 p.m. Id. at 70. Agent Terwilliger has no explanation for why it took approximately a day for Border Patrol to notify her of the defendant's arrest. Id. at 71. In response to defense counsel's question of whether one day is an unusual amount of time for notification, Agent Terwilliger testified that “I can only think of one instance, and I was notified within a few hours after NCIC was run.” Id. She also testified that an NCIC query would reveal a warrant within minutes. Id. at 72. Finally, she testified that because there are no documents in the A-File that reflect that Border Patrol ran an NCIC query prior to November 19, 2019, she can only conclude that an NCIC query was not done before that date.
c. Further Redirect Examination
Agent Terwilliger testified that the defendant's fingerprint card is dated November 19, 2019, and it shows Border Patrol Agent Verduzco's name on the card, as well as the Douglas Border Patrol Station. Id. at 74. She testified that based on the fingerprint card and her review of all the documents in the A-File, “[i]t does not appear that fingerprints were taken when [the defendant] was taken to the Tucson station.” Id. at 75-76. She agreed with government counsel that if the defendant's fingerprints were taken at the Tucson station on November 18, 2019, there should be another fingerprint card in the A-File. Id. at 76.
d. The Court's Questions
The Court asked Agent Terwilliger whether a record is created that reflects the name of a law enforcement officer who runs an NCIC query. Id. at 79. Agent Terwilliger testified that such a record is created and that “an offline search” for that information was done and provided to government counsel. Id. Agent Terwilliger does not know if similar records exist for TECS or ACIC because those systems are used respectively by Border Patrol and State law enforcement. Id. at 81.
Agent Terwilliger's response prompted defense counsel to note that he requested these records of queries from government counsel at least a month ago. Id. at 80. Defense counsel represented that government counsel told him that he was not aware of any such records, but he would talk to the case agent. Defense counsel “never heard back” from government counsel. Id. Because these records in fact exist, defense counsel moved for the production of these records. Id. at 82. Government counsel stated that he thinks that he provided defense counsel with everything requested but will double-check. Id. The Court ordered that these offline search records be provided to the defense if they have not yet been produced. Id.
5. ATF Agent James Cauble, Jr.
a. Direct Examination
Agent Cauble is currently an agent with the Bureau of Alcohol, Tobacco, and Firearms, but he was employed as a Border Patrol agent during the time frame at issue in the suppression motion. (7/23/21 Tr. at 4-5.) Agent Cauble has a vague recollection of being on duty and working at the Tucson Border Patrol Station the evening of November 18, 2019, but he has no recollection of the defendant. Id. at 5-6.
Testimony turned to entries made in the Subject Activity Log previously admitted into evidence. (Gov. Ex. 1.) Agent Cauble explained that he made certain entries into this log using a desktop computer located in a “sally port, ” which is an outdoor covered facility at the Tucson station. Id. at 7. As to the book-in procedure, he testified that an arrestee who comes in from the field arrives at a Border Patrol station with a “field processing form” prepared by the arresting agent, which contains the defendant's name, date of birth, mother's and father's names, and country of citizenship. Id. at 8. This information is provided verbally by the arrestee if he does not have an identification document. Id. The form also notes apprehension coordinates, the date and time the arrest took place, the date and time crossed (if provided by the arrestee), and how much money was in the arrestee's possession. Id. All of this information is entered into the computer system and is used to create the Subject Activity Log. Id. at 9. This information gathering is all that is done during the book-in process. Id.
b. Cross-Examination
Agent Cauble agreed with defense counsel that he did this intake process for hundreds, if not thousands, of arrestees during his employment with the Border Patrol. Id. at 12. Agent Cauble testified that it takes between four and eight minutes to do the intake on an arrestee. Id. at 13. He agreed that the Subject Activity Log reflects that the booking process for the defendant, including a medical screening, took about eleven minutes. Id. at 13, 22. After an arrestee is medically screened and cleared, the arrestee and the field processing form are brought to the agent doing the intake. Id. at 15. In terms of inputting an arrestee's information into the computer system, Agent Cauble explained that on a busy night he will likely input the information from the field processing form; on a slow night, he may verify the biographical information with the arrestee. Id. at 15-16. While he does not recall the defendant, he suspects that he entered the information from the field processing form into the computer because he is not a fluent Spanish speaker. Id. at 16. Agent Cauble testified that the agent doing intake does not run a query in NCIC or TECS. Id. at 17. That agent also does not take an arrestee's fingerprints or a photograph. Id. at 17-18. If the arrestee has money or an identification document, those items would be taken prior to the arrestee's intake. Id. He testified that money is documented in the Subject Activity Log, but the identification document is not. Id. at 18.
With respect to the Subject Activity Log, Agent Cauble testified that the defendant's photograph on the front page of the log would have been taken after the intake process. Id. at 19. Agent Cauble testified that he made the entry in the log that the defendant was arrested on November 18, 2019 at 7:00 p.m. Id. at 19-20. He obtained the arrest information from the field processing form. Id. at 20-21. Agent Cauble confirmed that he did the booking of the defendant about three hours later. Id. at 21. He also confirmed that the defendant was in Border Patrol custody until November 20, 2019, when he was booked out at 9:43 a.m. Id.
c. The Court's Questions
Agent Cauble testified that the Subject Activity Log would not reflect when either an NCIC or TECS inquiry was done for the defendant. Id. at 22. The reference on the log to “processing complete” means that the defendant's A-File had been completed. Id. at 23. At the time the “processing complete” entry is made, an NCIC or TECS inquiry would have been made for the defendant. Id. Like Agent Ramirez, Agent Cauble testified that an arrestee would be transferred from the Tucson station to the Douglas station if the Tucson station was overcrowded, and not because a decision had been made as to whether the arrestee would be prosecuted. Id. at 23-25. In response to defense counsel's followup question, Agent Cauble testified that while he does not have a specific recollection of why the defendant was sent from Tucson to Douglas, the only explanation is that Tucson was over capacity. Id. at 26.
d. Closing Briefs
Rather than have oral argument, the Court asked the parties to submit closing briefs. That request was made because the lengthy testimony went far beyond, and at times conflicted with, the facts set forth in the initial pleadings (which merely set forth the anticipated testimony) that the parties relied upon for their legal analysis. The testimony and documentary evidence presented at the hearing both fleshed out and supplemented the alleged constitutional and statutory violations.
DISCUSSION
As mentioned earlier, the defendant presents the following arguments in support of suppression of his statements made to FBI agents: (1) a violation of Federal Rule of Criminal Procedure 4(c) (3)(A) because the FBI agents did not show him the arrest warrant or advise him of the charges upon his arrest; (2) a Fifth Amendment violation because he previously invoked his Miranda rights while in Border Patrol custody; (3) a Sixth Amendment violation because he did not knowingly, intelligently, and voluntarily waive his Miranda rights; and (4) a violation of McNabb-Mallory/18 U.S.C. § 3501(c) because he was not promptly presented to a magistrate judge following his arrest by Border Patrol. For the reasons that follow, the Court recommends that the District Court grant the Motion to Suppress based on the first three grounds.
For organizational purposes, the Court addresses the defendant's arguments chronologically from his arrest to his presentment to a magistrate judge, rather than in the order set forth in the Motion to Suppress.
A. The Defendant's Statements Should Be Suppressed Because Federal Rule of Criminal Procedure 4(c)(3)(A) Was Violated When Agents Failed to Show Him the Arrest Warrant or Inform Him of the Charges and the Defendant Was Prejudiced By Those Failures.
The Court turns first to the defendant's novel argument that his confession should be suppressed because he was not shown the arrest warrant or advised of the indictment and/or the pending charges upon his arrest. This argument is not based on a constitutional violation, but rather a violation of Rule 4(c)(3)(A) of the Federal Rules of Criminal Procedure.
Rule 4(c)(3)(A) provides that upon an arrest made pursuant to a warrant:
an officer possessing the original or a duplicate original warrant must show it to the defendant. If the officer does not possess the warrant, the officer must inform the defendant of the warrant's existence and of the offense charged and, at the defendant's request, must show the original or a duplicate original warrant to the defendant as soon as possible.
The defendant argues that Rule 4(c)(3)(A) was violated because the arresting FBI agents did not show him the arrest warrant or inform him of the charged offenses.
1. Rule 4(c)(3)(A) Was Violated Because the Defendant Was Not Shown the Arrest Warrant or Informed of the Charges Upon Arrest.
The defense does not claim that the FBI agents did not tell the defendant about the arrest warrant. Indeed, Agent Ramirez testified repeatedly that he told the defendant that he was being arrested pursuant to a federal arrest warrant. (7/2/21 Tr. at 20, 33.) However, merely telling the defendant that he is being arrested pursuant to a warrant does not satisfy the requirements of Rule 4(c)(3)(A). Rather, the rule first requires that the defendant be shown the arrest warrant.
The government does not and cannot dispute that the defendant was never shown a copy of the arrest warrant. Neither Agent Terwilliger nor Agent Ramirez testified that they showed the defendant the arrest warrant either upon the defendant's arrest at the Tucson Border Patrol Station, or later at the FBI station prior to or during the interview. In fact, Agent Terwilliger's testimony never addressed whether she even had a copy of the warrant when they arrested the defendant or when they later interviewed him. And Agent Ramirez testified that he did not have the arrest warrant and does not know if Agent Terwilliger had the warrant. (7/2/21 Tr. at 46-47, 60.) Thus, the issue becomes whether agents remedied their failure to show the defendant the arrest warrant by advising him of the charged offenses.
The testimony at the evidentiary hearing makes clear that the FBI agents did not advise the defendant of the offenses charged in the indictment. Agent Terwilliger testified that she is only legally obliged to advise the defendant that he is being arrested pursuant to a federal warrant, and not to inform the defendant of the charges. (6/25/21 Tr. at 35, 5354, 57-58.) She testified that she does not make it a practice to read or explain a charging document to a defendant that she has arrested on a warrant and does not “make it a practice to carry around a charging document” and show it to the person that she has arrested. Id. at 35. She further testified that the defendant's attorney and the magistrate judge would inform the defendant of the charges at the initial appearance. Id.
The Court notes that, as the case agent, Agent Terwilliger did not have to have the Superseding Indictment in her back pocket when she arrested the defendant because she clearly knew the charges in the indictment and the alleged criminal activity that led to the charges. Thus, she could have told the defendant (via Agent Ramirez) the specific charges or generally described the charged offenses.
On cross-examination, Agent Ramirez first testified that he is not obligated to tell an arrestee about an indictment. (7/2/21 Tr. at 46.) However, he later testified that he is trained that if an arrestee asks about the charges, “we should tell him.” Id. at 47. Agent Ramirez conceded that the defendant asked about the charges during the ride to the FBI office, but he never told the defendant the charges in the indictment during the ride to the FBI office, prior to the interview, or during the interview. Id. at 9, 29, 47. In fact, Agent Ramirez testified that he did not know the criminal charges listed on the warrant and does not recall if he knew the specific charges alleged in the indictment because he is unsure whether he ever saw the indictment. Id. at 22-23, 60. Based on this testimony, the Court finds that the agents did not comply with 4(c)(3)(A)'s requirement that the defendant be informed of the charges if not presented with the arrest warrant.
In light of this testimony, the government does not argue that the FBI agents complied with Rule 4(c)(3)(A) by advising the defendant of the charged offenses. Instead, the government essentially argues the spirit of Rule 4(c)(3)(A) was complied with because the defendant made clear to the agents that he understood why he was being arrested. This argument is based on the testimony of Agent Ramirez who spoke with the defendant in Spanish. As discussed earlier, Agent Ramirez testified on cross-examination that if an arrestee asks about the charges, he is obligated to tell the arrestee “what he's being arrested for.” Id. at 34. He testified that he did not do that in this case because the defendant knew why he had been arrested. Id. Agent Ramirez drew that conclusion based on the following statements made by the defendant. During the ride to the FBI office, the defendant asked if this was about or had to do with Edgar, and then said “I did not shoot him. I only heard the shots.” Id. at 9, 29. The defendant also said that Edgar was shot by Border Patrol. Id. at 9. The defendant then asked if he was going to get “eight years, ” which agents viewed as significant because a co-defendant was sentenced to eight years in custody. Id. at 10, 54. Agent Ramirez testified that he did not answer the defendant's questions or respond to his comments, except to tell the defendant that he could not talk with him in the vehicle and that they would have an opportunity to talk and discuss all of this later at the FBI office. Id. at 10, 29. Agent Ramirez testified that based on the defendant's questions and comments, he believed the defendant knew that the pending charges involved “the incident where one of his partners was killed.” Id. at 62.
For the following reasons, the Court rejects the government's argument that Rule 4(c)(3)(A) was complied with because the defendant knew the charged offenses. First and foremost, this argument is belied by the fact that the defendant asked Agent Ramirez to tell him the charges. Moreover, Rule 4(c)(3)(A) puts the burden on arresting agents to inform the defendant of the charges if they do not show the defendant the arrest warrant. The rule does not provide an exception that alleviates the agents of that burden if the defendant displays an understanding of the charges. And even if it did, the defendant's questions and comments do not reflect that he understood the four felony offenses charged in the indictment and listed on the arrest warrant. As noted earlier, the defendant is charged with the following offenses: (1) Conspiracy to Interfere with Commerce by Robbery; (2) Possession of a Firearm in Furtherance of a Crime of Violence; (3) Conspiracy to Possess with Intent to Distribute Marijuana; and (4) Possession of a Firearm in Furtherance of a Drug Trafficking Crime. Neither the defendant's questions about whether this was about Edgar and if he was going to get eight years, nor the defendant's comments that he did not shoot him, he only heard the shots, and Border Patrol did, evidence that the defendant understood these specific charges which, on their face, have no connection to a shooting by a Border Patrol agent that resulted in a death. In fact, the defendant's comment that he did not shoot Edgar displays a concern that he may have been charged with Edgar's murder, not offenses charging him with robbery, drug trafficking, and using firearms in connection with a drug trafficking crime. Thus, it is a fair inference that this is one reason the defendant wanted to know the charges. For these reasons, the Court concludes that the defendant's general awareness that he was in trouble for the situation involving Edgar neither alleviates the government's burden under Rule 4(c)(3)(A) to advise the defendant of the charges, nor satisfies that burden.
2. Suppression of a Statement is a Potential Remedy for a Violation of Rule 4(c)(3)(A).
Having determined that Rule 4(c)(3)(A) was violated, the Court turns to the remedy, if any, that can be imposed for the violation. However, the Court is left in a precedential vacuum on that issue because there is very little case law that even mentions Rule 4(c)(3)(A), let alone a remedy. In fact, in the cases that even reference a potential remedy, the courts did not need to address an appropriate remedy because of the factual situations presented in those cases. Thus, the cases discussed below are of limited value to the case at hand.
The little case law addressing Rule 4(c)(3)(A) may reflect that the requirements laid out in this rule are commonsensical and standard practice for law enforcement officers making an arrest pursuant to a warrant.
Over fifty years ago in Bryson v. United States, 419 F.2d 695, 701 (1969), the First Circuit noted that Rule 4(c)(3)(A) might serve three purposes which could support a limited application of the exclusionary rule if the defendant's rights were implicated. First, it might prevent any unexplained detention of a lawfully arrested defendant. Bryson, 419 F.2d at 701. Second, by informing the defendant of the charges against him, it may protect the defendant's privilege against self-incrimination. Id. Third, it may ensure against the possibility that a defendant could resist a lawful, but unexplained arrest. Id. However, that court did not attempt to sort out the ambiguities of this rule “or to decide whether and when it might be enforced by an exclusionary rule” because the defendant did not press this claim before the district court and there was substantial doubt as to how the rule was violated. Id. Moreover, the defendant did not incriminate himself, there was no unexplained detention, and he did not resist arrest. Id.
Bryson is helpful in terms of articulating the purposes of Rule 4(c)(3)(A) and a possible remedy for a violation of this rule - suppression of a defendant's statement. However, the First Circuit did not have to address a remedy for a Rule 4(c)(3)(A) violation because, unlike here, the defendant did not press a Rule 4(c)(3)(A) violation to the district court. Moreover, the defendant did not incriminate himself, which is also not the case here.
Case law addressing Rule 4(c)(3)(A) was dormant until very recently. In United States v. Chung, 2016 WL 11432472, at *8 (N.D.Ga. 2016), the Court noted that it “has not been advised of and the Court's independent research has not located, any case in which a violation of Federal Rule of Criminal Procedure 4(c)(3)(A), requiring an arrestee to be advised of the offense for which he is being arrested, was held to be remedied by suppression of subsequently-made statements.” The Court further noted that even if suppression was a remedy, while there was no evidence the defendant was advised of the charges in the indictment (four Hobbs Act counts) upon which he was arrested, the defendant was advised that he was suspected of committing extortion during his interview. Chung, 2016 WL 11432472 at *8.
Chung is not helpful to the case at hand because the Court simply assumed that suppression is not a remedy for a violation of Rule 4(c)(3)(A) because the parties and the Court's research did not reveal any case law on this issue. Additionally, and importantly, the Court found that although the defendant was not advised of the criminal charges upon arrest, he was advised of the criminal charges during his interview with law enforcement. As discussed above, that did not happen here.
In United States v. Hamilton, 2017 WL 9476881, at *5 (N.D.Ga. 2017), the court cited Bryson in noting the three possible purposes that Rule 4(c)(3)(A) may serve: preventing unexplained detention; protecting the privilege against self-incrimination; and ensuring resistance from a lawful arrest. However, once again, that Court did not have to address whether a remedy was necessary because the defendant: (1) never asserted that the arresting agents did not have the warrant in hand and did not show it to him; (2) never claimed that agents failed to tell him why he was under arrest; and (3) never suggested that he did not see the warrant later. Hamilton, 2017 WL 9476881 at *5. Also, there was no indication that the defendant incriminated himself during the arrest. Id. Hamilton is distinguishable from the instant case because the FBI agents did not show the defendant the arrest warrant, either upon his arrest or later. The agents also did not inform the defendant of the charges that led to his arrest. And, unlike in Hamilton, the defendant incriminated himself during the interview.
Rule 4(c)(3)(A) was alluded to in United States v. Hutchens, 361 F.Supp.3d 779 (E.D. Wis. 2019). In that case, the defendant moved to suppress his statements made to law enforcement because they were a product of deception in that law enforcement misled him as to the true nature of their investigation. Hutchens, 361 F.Supp.3d at 791. The Court expressed its concern about the “abject failure of the agents to abide by” Rule 4(c)(3)(A). Id. However, the Court never addressed any potential consequences that could result from that failure because the court concluded that there was not clear and convincing evidence that agents acted with an intent to deceive, which the defense had to prove to prevail on its suppression motion based on deception. Id. Additionally, the defendant continued to answer questions after he knew the substance of the indictment. Id. at 792.
Hutchens also is of little help to the issue here because the motion to suppress in that case was based on deception, not a violation of Rule 4(c)(3)(A). Indeed, the court, not the defense, pointed to a Rule 4(c)(3)(A) violation when addressing deceptive conduct. Thus, unlike here, that court never had a reason to address a remedy for a Rule 4(c)(3)(A) violation because the defense did not raise that argument as a basis for suppression. Finally, as discussed above, the defendant here never knew the substance of the Superseding Indictment either before or during questioning.
Finally, in United States v. Stephens, 2019 WL 5445298, at *2 (W.D. Vir. 2019), the court noted that other courts within that circuit have held that an officer need not possess an arrest warrant at the time of an arrest, and that “arrest is not unlawful due to the mere failure of an arresting officer to serve an arrestee with a copy of the arrest warrant.” Stephens is clearly distinguishable from the case at hand because the defendant does not claim that his arrest was unlawful, and Stephens did not address the remedy sought here, suppression of the defendant's confession. Moreover, as discussed below, the Court finds that the purpose of Rule 4(c)(3)(A) is not to ensure that an arrest pursuant to a warrant is lawful - the arrest warrant issued by a neutral and detached judge serves that purpose.
The Court's research revealed two additional cases, decided before the cases discussed in text supra, that “mentioned” Rule 4(c)(3)(A); but those two courts gave even less discussion to this rule. In United States v. Sinclair, 474 F.3d 1148, 1149 (8th Cir. 2007), the Eighth Circuit summarily rejected the defendant's argument that his arrest was illegal because Rule 4(c)(3)(A) was violated, because the district court was in “the best position” to credit the testimony of the arresting officer that he showed the defendant the arrest warrant. In United States v. Boyd, 2010 WL 3842015, at *17-18 (W.D. Mo. 2010), the court also summarily rejected the defendant's argument that the arresting officer violated his Rule 4(c)(3)(A) due process right to be notified of the charge because the evidence showed that the officer advised the defendant about the warrant's existence and of the charge.
Unlike in the cases discussed above, this Court cannot side-step the issue of a remedy (or assume there is none) because Rule 4(c)(3)(A) was not violated, or because a purpose of Rule 4(c)(3)(A) would not be served even if the rule was violated. In the absence of any evidence that the defendant was shown the arrest warrant, advised of the criminal charges (either upon his arrest or prior to or during his interview), or displayed an understanding of the charges, this Court must decide whether suppression of a defendant's statement is an available remedy for a violation of Rule 4(c)(3)(A). For the reasons discussed below, the Court concludes that suppression is both an available and appropriate remedy in the case at hand.
The Court's conclusion is based, in part, on the simple fact that Rule 4(c)(3)(A) exists and imposes mandatory requirements on law enforcement officers when effectuating an arrest pursuant to a warrant. As a result, there simply has to be a remedy for a violation of this rule, as is the case for other Federal Rules of Criminal Procedure, like Rule 5(a) discussed below, which allows for the suppression of a confession obtained six hours after arrest if the defendant is not promptly presented to a magistrate judge. Otherwise, Rule 4(c)(3)(A) serves no purpose, other than to set forth “best practices” for law enforcement. As in Bryson, the Court finds that a purpose of Rule 4(c)(3)(A) is to ensure the defendant understands why he is being arrested, and thus protect his self-incrimination privilege. As such, the Court holds that suppression of a confession is a potential remedy when this rule is violated. whether a waiver of the Sixth Amendment right to counsel was “knowing and intelligent.” Additionally, and importantly, the Constitution provides a baseline of the rights afforded to criminal defendants. Obviously, a defendant's constitutional rights cannot be taken away or limited by a rule or statute. However, rules and statutes can and have been enacted that provide defendants with rights beyond those required by the Constitution. The best example are the government's disclosure obligations in a criminal case. In Brady and Giglio, the Supreme Court held that the Due Process Clause of the Constitution requires the government to disclose to the defense all exculpatory and impeachment information. However, rules and statutes have been enacted that provide for additional disclosure obligations, as well as a remedy for violations - e.g., preclusion of evidence at trial. For instance, Federal Rule of Criminal Procedure 16 sets forth numerous additional disclosure obligations (albeit for the defense as well as the government) beyond what is constitutionally required under Brady and Giglio. Likewise, additional disclosure obligations are provided for in Federal Rule of Criminal Procedure 26.2 and 18 U.S.C. § 3500 (commonly referred to as the Jencks Act). Similarly, the Court finds that the obligation imposed on law enforcement by Rule 4(c)(3)(A), provides a right for criminal defendants beyond what is required by the Constitution and a remedy for a violation.
3. Prejudice Must Result from the Rule 4(c)(3)(A) Violation.
Having found Rule 4(c)(3)(A) was violated and that suppression of a confession is an available remedy for a violation, the Court must turn to a discussion of whether prejudice is presumed as a result of a Rule 4(c)(3)(A) violation, or if the defendant must have been actually prejudiced as a result of the violation. The Court notes that neither party has addressed or even raised this issue.
There is somewhat of a persuasive argument as to why prejudice should be presumed and result in the automatic suppression of a statement when Rule 4(c)(3)(A) is violated. That argument is based on the difference between an arrest pursuant to a warrant issued in connection with a charging document, and a probable cause arrest which forms the basis for a later criminal charge. A probable cause arrest is based on alleged criminal conduct that just or very recently took place. Thus, a defendant knows or should be deemed to know exactly why he was just arrested - e.g., transporting drugs, smuggling undocumented individuals, crossing the border unlawfully. In contrast, an arrest pursuant to a warrant can result from alleged criminal conduct that occurred days, weeks, months, or, like here, years earlier. As such, a defendant arrested on a warrant may not know why he is being arrested, and that is precisely why Rule 4(c)(3)(A) requires federal law enforcement officers arresting a defendant pursuant to a warrant to show the defendant the warrant or inform him of the charges.
However, this Court is hard-pressed to find, and has not been provided with, a rule or statute where the remedy for a violation is mandatory and does not require actual prejudice resulting from the violation. For example, a violation of the disclosure rules discussed earlier requires that the defendant be prejudiced by the violation. That is because, in many instances, the violation can be cured before prejudice results. Prior to trial, a continuance of a trial to allow the defense to review and utilize the belated disclosure will ensure the defendant is not prejudiced. Similarly, during trial a mistrial could be declared as a result of an inadvertent or unintentional disclosure violation to enable the defense to utilize the disclosure at a later trial. Relatedly, after a conviction, prejudice almost always must be demonstrated as a result of a violation of a rule or statute (and often times the Constitution) for a defendant to prevail on appeal. Appellate courts routinely conclude that while there was a violation of a rule or statute (or the Constitution), the violation did not prejudice the defendant because it would not have affected the jury's verdict and/or outcome of the case. For these reasons, this Court concludes that actual prejudice must result from the Rule 4(c)(3)(A) violation.
Also, as discussed in text infra, there is no per se rule that the Sixth Amendment requires that a confession be suppressed because it is not “knowing and intelligent” if a defendant is not advised of the charges in an indictment.
That said, the Court cannot conclude that prejudice or the absence of prejudice turns on whether the Miranda rights waiver was “knowing and intelligent.” If that were the case, there would be no remedy for a Rule 4(c)(3)(A) violation. As discussed below, a defendant need not be advised of the pending charges for a valid waiver of the right to counsel under the Sixth Amendment. Thus, arresting agents could violate Rule 4(c)(3)(A) and claim “no harm, no foul, ” because a “knowing and intelligent” Miranda waiver will cure the statutory violation. If that were the case, the additional statutory protection provided by Rule 4(c)(3)(A) would be eviscerated by the baseline constitutional requirements.
The Court recognizes that prejudice for a Rule 4(c)(3)(A) violation may entail a similar analysis of whether the Miranda waiver was “knowing and intelligent.” That said, the failure to show an arrestee the indictment or advise the arrestee of the pending charges as required by Rule 4(c)(3)(A), can still result in prejudice, even though that failure may not result in a Miranda waiver that is not “knowing and intelligent.” An arrestee's waiver of his Miranda rights can be “knowing and intelligent” under the Constitution because he generally understands that he does not have to talk to law enforcement and can have a lawyer present during an interview, but still chooses to speak to law enforcement without counsel. However, the arrestee can still be greatly prejudiced by agreeing to speak with law enforcement when he has no idea of the charges against him (or perhaps that there are even charges pending) or why he was arrested. In the latter situation, the arrestee's decision of whether to speak to law enforcement is made in a vacuum because he has no clue why law enforcement wants to speak with him, and if he knew why, he may not have agreed to speak with law enforcement. Stated another way, an arrestee who does not know the pending charges takes a huge and uneducated risk in speaking with law enforcement and can suffer extreme prejudice by doing so. Rule 4(c)(3)(A) both eliminates the vacuum and reduces the risk. Because this Court has concluded that Rule 4(c)(3)(A) provides a defendant with an additional right not afforded to him by the Constitution, the Court concludes that the remedy for the statutory violation is not based in constitutional requirements.
4. The Defendant Has Been Prejudiced.
The rub (or perhaps yet another rub in this case) becomes the prejudice that must be shown to warrant suppression of a confession based on a violation of Rule 4(c)(3)(A). The absence of prejudice to the defendant was one of the reasons why the courts in Bryson, Chung, Hamilton, and Hutchens did not have to address a remedy for an alleged Rule 4(c)(3)(A) violation. In those cases, the evidence showed that the defendant was either advised of or knew the substance of the charges and, in some instances, did not incriminate himself. Again, that is not the case here.
The Court believes that the standard for prejudice may be best articulated by using an example (drawn from these cases) of when a defendant will not be prejudiced by such a violation. A defendant arrested pursuant to a warrant who has not been shown the warrant or advised of the charges, may make clear to arresting agents, either upon his arrest or prior to an interview (or maybe even early on in the interview), that he knows the charges that led to his arrest. In that situation, the defendant has not been prejudiced by law enforcement's failure to comply with Rule 4(c)(3)(A) and protecting the defendant's privilege against self-incrimination is not a purpose that needs to be served. In fact, the government makes that argument here - i.e., the defendant demonstrated that he knew about the charges - albeit in the context of arguing that Rule 4(c)(3)(A) was not violated. However, as discussed earlier, the Court has rejected the government's argument that Rule 4(c)(3)(A) was not violated because the defendant knew the charges. And the Court now concludes that the defendant was prejudiced because he was not informed of or knew the substance of the charges alleged in the indictment.
The defendant went into the FBI interview flying blind with respect to the charges against him. The defendant spent two days in Border Patrol custody without being charged with a crime or advised by Border Patrol agents about the FBI arrest warrant. He was not shown the warrant or advised of the charges when arrested by the FBI at the Tucson Border Patrol Station, which again, was required under Rule 4(c)(3)(A). As discussed below, that failure was never remedied.
During the transport to the FBI office, the defendant asked what crimes he was charged with. (7/2/21 Tr. at 9, 29.) Again, Agent Ramirez did not show the defendant the warrant or explain the charges. Instead, Agent Ramirez told the defendant that he could not answer that question in the car, but they would have a chance to talk about that at the FBI station. Id. at 29. That response was not accurate for two reasons. First, Agent Ramirez was legally obliged to explain the charges if he did not have the warrant. Second, Agent Ramirez testified that he is trained that he must advise an arrestee of the charges if the arrestee asks about the charges. Id. at 34, 47. The failure to inform the defendant of the charges either upon his arrest or after he asked about the charges prejudiced the defendant because he made inculpatory statements during the car ride in an effort to find out the charges. The defendant first asked if this was about Edgar. Id. at 9, 29. When Agent Ramirez did not respond, the defendant said: “I did not shoot him, I only heard the shots” and then immediately said Border Patrol shot him. Id. at 9, 29. The defendant's statements are highly incriminating because they put him at the scene of the crime, which is made more significant by the fact that law enforcement did not arrest or even find anyone at the crime scene. The admission at trial of these incriminating statements, made in an effort to find out the charges (which he was legally entitled to know), would prejudice the defendant.
The defendant also asked if he was going to get “eight years, ” which the government claims is significant because a co-defendant received that sentence. This question is arguably inculpatory as well, although it's hard to imagine that this question about a codefendant's sentence resulting from his conviction would be admissible at trial even if there was not a Rule 4(c)(3)(A) violation.
Once at the FBI station, Agent Ramirez also did not show the defendant the warrant or explain the charges. Instead, he basically told the defendant that he could not answer his question about the charges unless he waived his Miranda rights. Id. at 42-43. Once again, that statement was not accurate because a law enforcement officer is not prohibited from advising a defendant of the charges unless the defendant waives his Miranda rights. See Arizona v. Roberson, 486 U.S. 675, 687 (1988) (law enforcement is “free to inform the suspect of the facts of the... investigation “as long as such communication does not constitute interrogation.”) (citing Rhode Island v. Innis, 446 U.S. 291 (1980)). In fact, Agent Ramirez's response essentially conditioned the defendant's ability to find out the charges on the waiver of his Miranda rights, which, as discussed below, affects the validity of his Miranda waiver.
To add insult to injury, even after the defendant waived his rights, Agent Ramirez never showed the defendant the warrant, explained the charges, or answered the defendant's question about the charges. As a result, the defendant made additional inculpatory statements that can be used against him at trial to prove very specific charges that encompass alleged criminal activity that is only tangentially related to a Border Patrol agent shooting and killing an alleged co-conspirator. For these reasons, the Court finds that the defendant was prejudiced by the Rule 4(c)(3)(A) violation, and therefore, recommends that the statements identified above made during the car ride and the statements made during the custodial interview be suppressed.
B. The Defendant's Fifth Amendment Right to Counsel Was Violated Because He Invoked That Right to Border Patrol Agent Verduzco and Did Not Reinitiate A Conversation with FBI Agents That Could Result In a Subsequent Valid Waiver of His Right to Counsel.
The defendant argues that because he previously invoked his Miranda rights after being advised of his rights by Border Patrol agents, the FBI agents' subsequent questioning of him without counsel was unlawful under both the Sixth and Fifth Amendment even though they again advised him of his rights.
1. There Was Not a Violation of the Defendant's Sixth Amendment Right to Counsel.
The defendant's argument fails under the Sixth Amendment because the Supreme Court has held that the Sixth Amendment right to counsel is offense-specific, and therefore, prohibits government interrogation only regarding the offense to which the right of counsel has attached. United States v. Ortega, 203 F.3d 675, 680 (9th Cir. 2000) (citing McNeil v. Wisconsin, 501 U.S. 171, 175 (1991)). “And just as the right is offense specific . . . [the] effect of invalidating subsequent waivers in police-initiated interviews is offense specific.” McNeil, 501 U.S. at 175. Thus, if the defendant's subsequent waiver of rights is knowing, intelligent, and voluntary, the statement does not violate the Sixth Amendment and is therefore admissible at trial.
Here, the offenses alleged in the indictment and listed on the arrest warrant are obviously different than the suspected immigration offenses that led to the defendant's arrest by Border Patrol. In fact, no Sixth Amendment right to counsel ever attached with respect to immigration offenses because he was never charged with any such offense. Thus, FBI agents did not violate the defendant's Sixth Amendment right to counsel by readvising him of his rights and questioning him about nonimmigration offenses, assuming the defendant validly waived that right. As discussed below, the analysis for purposes of the Fifth Amendment is different and more complicated.
Whether the defendant's waiver of his Sixth Amendment right to counsel was valid is addressed in Section C below.
2. There Was No Fifth Amendment Violation of the Defendant's Right to Remain Silent.
The Court first turns to Michigan v. Mosely, 423 U.S. 96 (1975), which the government argues supports its position that even when a defendant invokes his right to remain silent and not speak with officers, the Fifth Amendment is not violated if the defendant is later questioned by officers on unrelated charges after waiving his right to remain silent. In that case, the defendant was arrested in connection with two robberies. Mosley, 423 U.S. at 97. After being advised of his Miranda rights, the defendant told officers “he did not want to answer any questions about the robberies.” Id. As a result, officers ceased the interrogation. Id. Subsequently, different police officers attempted to question the defendant about a fatal shooting. Id. at 98. The defendant waived his Miranda rights and provided the officers with a statement. Id. In his motion to suppress his statement regarding the shooting, the defendant argued that it was constitutionally impermissible for officers to question him about the shooting after he had told other officers that he did not want to answer any questions about the robberies. Id. at 98-99. The trial court denied the motion, but the state appellate court reversed based on a per se violation of the Miranda doctrine. Id. at 99. The Supreme Court granted certiorari. Id.
The Supreme Court held that “the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning' was ‘scrupulously honored.'” Id. at 104. The Court found that the police immediately ceased questions about the robberies, which fully respected the defendant's “right to cut off questioning, ” and “resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation.” Id. at 106. Based on these facts, the Court concluded that Miranda was not violated.
The government argues that, like in Mosley, the defendant's statement to FBI agents was not obtained in violation of Miranda because: (1) Border Patrol agents ceased questioning when the defendant invoked his right to remain silent; (2) a significant period of time passed (a day) before the FBI questioned him; (3) a fresh set of Miranda warnings was provided; (4) the defendant waived his right to remain silent; and (5) FBI agents restricted the interrogation to crimes that were not the subject of the Border Patrol arrest.
The government is correct that Mosely permitted the FBI agents to question the defendant on unrelated charges a day later even though he previously invoked his right to remain silent, provided the defendant later validly waived that right. However, as the government concedes, Mosely does not resolve the other Fifth Amendment issue present here: interrogating an arrestee who had previously invoked his right to counsel on unrelated charges and who remained in custody between the invocation and subsequent interrogation.
3. The Defendant's Fifth Amendment Right to Counsel Was Violated When FBI Agents Spoke with the Defendant After He Had Invoked His Right to Counsel.
The Court finds it necessary to set forth the Supreme Court's jurisprudence relating to the Fifth Amendment guarantee that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” Obviously, that discussion starts with Miranda v. Arizona, 384 U.S. 436 (1966). There, the Supreme Court recognized that [u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.” Miranda, 384 U.S. at 458. “Access to counsel was held essential to secure the Fifth Amendment privilege against self-incrimination.” Oregon v. Bradshaw, 462 U.S. 1039, 1051 (1983) (dissent). As a result, the Court “established a number of prophylactic rights designed to counteract the ‘inherently compelling pressures' of custodial interrogation, including the right to have counsel present.” McNeil, 501 U.S. at 176. “If the individual states that he wants an attorney, the interrogation must cease until an attorney is provided.” Miranda, 384 U.S. at 474. Miranda thus created a “rigid rule that an accused's request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease.” Fare v. Michael C., 442 U.S. 707, 719 (1979).
Of course, these rights can be waived if the government can establish that a suspect knowingly, intelligently, and voluntarily waived his privilege against self-incrimination, and his right to counsel. McNeil, 501 U.S. at 176.
Subsequently, in Edwards v. Arizona, 451 U.S. 477 (1981), the Court “established a second layer of prophylaxis for the Miranda right to counsel: Once a suspect asserts the right, not only must the current interrogation cease, but he may not be approached for further interrogation ‘until counsel has been made available to him, '” unless the accused initiates further communication, exchanges, or conversations with the police. McNeil, 501 U.S. at 176-177 (citing Edwards, 451 U.S. at 484-485). If law enforcement later initiates an encounter with a suspect without counsel, assuming there has been no break in custody, the suspect's statements are deemed involuntary under the Fifth Amendment and thus inadmissible even if the suspect waives his rights and his statements would be considered voluntary under traditional standards. Id. at 177.
In Roberson, 486 U.S. at 682 (1988), the Supreme Court addressed whether “the bright-line, prophylactic Edwards rule” should apply “when a police-initiated interrogation following a suspect's request for counsel occurs in the context of a separate investigation.” The Court held that for purposes of the Fifth Amendment, “[w]hether a contemplated reinterrogation concerns the same or a different offense, or whether the same or different law enforcement authorities are involved in the second investigation, the same need to determine whether the suspect has requested counsel exists.” Id. at 687-688. In that case, the Court attached “no significance to the fact that the officer who conducted the second interrogation did not know that [the defendant] had made a request for counsel.” Id. at 687. The Court reasoned that Edwards focuses on the state of mind of the suspect and not the police. Id. As such, the burden is on “an officer who proposes to initiate an interrogation to determine whether the suspect had previously requested counsel.” Id. Unlike the Sixth Amendment, the Edwards rule “is not offense specific: Once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present.” McNeil, 501 U.S. at 177 (citing Roberson, 486 U.S. at 685). Finally, the Court held that “fresh sets of Miranda warnings will [not] ‘reassure' a suspect who has been denied the counsel he has clearly requested that his rights have remained untrammeled.” Roberson, 486 U.S. at 686.
In United States v. Lucas, the Ninth Circuit, 963 F.2d 243, 246 (9th Cir. 1992), relying on Roberson, held that the defendant's Fifth Amendment right to counsel was violated by the FBI questioning the defendant regarding a bank robbery after the defendant had invoked his right to counsel during an attempted interview by different officers investigating an auto theft.
a. The Defendant Asserted His Fifth Amendment Right to Counsel.
The Court finds that the defendant invoked all of his Fifth Amendment rights, including his right to counsel, after being advised of his rights by Border Patrol agents.It is true that the Fifth Amendment right to counsel attaches only upon an explicit and unambiguous request of an arrestee. Davis v. United States, 512 U.S. 452, 459 (1994); McNeil, 501 U.S. at 178. However, as discussed below, the evidence presented to this Court only supports the conclusion that the defendant's blanket invocation of his Miranda rights after being advised of his rights by Border Patrol Agent Verduzco was a legally sufficient assertion of his right to counsel under the Fifth Amendment.
The Court notes that there is no dispute that there was not a break in custody between the two advisal of rights that would impact, and likely end, the Fifth Amendment analysis under Edwards and its progeny.
In its closing brief, the government makes a half-hearted argument that the defendant did not invoke his right to counsel to Agent Verduzco. [See Doc. 236 at 9.] Specifically, the government states that the defendant invoked his right to remain silent when he told Agent Verduzco that he was not willing to answer questions. Id. The government goes on to say that “[i]f the Court finds that the defendant invoked both his right to remain silent and his right to counsel after being advised of them by Agent Verduzco, then the government concedes that Michigan v. Mosely does not apply.” Id. This half-hearted argument likely stems from the fact that Agent Verduzco had no recollection of his interaction with the defendant, let alone his advisal of rights to the defendant or his response. For example, on cross-examination, Agent Verduzco testified that he does not have a distinct memory of reading the Advisal of Rights form to the defendant or advising him of his rights. (6/25/21 Tr. at 114.) He also did not recall the defendant's response when asked if he was willing to waive his rights. Id. at 115. But Agent Verduzco agreed with defense counsel that he draws the conclusion that the defendant invoked his rights because neither he nor the defendant signed the Advisal of Rights form. Id.
Agent Verduzco did write a report and completed a document titled “Affidavit” that respectively referenced that the defendant “was not willing to give a statement” and was not “willing to answer questions.” (Gov. Exs. 2 and 4.) However, the references in these documents, standing alone, do not clearly evidence that the defendant only invoked his right to remain silent. That is because Agent Verduzco's testimony shed no light on the significance, if any, of the references in these documents with respect to what rights the defendant invoked. Agent Verduzco testified that he prepared these documents, reviewed them prior to his testimony, and identified the documents during his testimony so they could be admitted into evidence. (6/25/21 Tr. at 95-96.) However, neither document refreshed Agent Verduzco's memory about what the defendant said when he invoked his rights. Thus, the Court cannot conclude that the defendant did not invoke his right to counsel when the agent who advised the defendant of his rights cannot recall the defendant's response and can only draw the conclusion that the defendant “invoked his rights” based on the unsigned Advice of Rights form.
Agent Verduzco's testimony did touch on the defendant's invocation of the right to counsel, albeit in other contexts, in response to the Court's questions. Specifically, the Court asked Agent Verduzco: “Just so I'm clear, so would you have asked - if Mr. Arvizu says, yeah, I'm willing to talk with you and waive my right to an attorney, you would have asked him immigration-related questions?” Id. at 130. Agent Verduzco's response was “[o]nly.” Id. The Court had a subsequent exchange with Agent Verduzco that pertained to whether he communicated that the defendant invoked his rights to a supervisor. Specifically, the Court stated: “Obviously Mr. Rodriguez-Arvizu told you he didn't want to speak with you and was invoking his right to counsel. Did you communicate his invocation of his rights to anybody else, your supervisor or any other person?” Id. at 135. Agent Verduzco testified that his supervisor would have reviewed his report and therefore would have known the defendant invoked his rights. Id.
The Court admits that its questions put to Agent Verduzco assume that the defendant invoked his right to counsel. However, Agent Verduzco did not have to accept that assumption; he could have corrected the Court and made clear that the defendant only invoked his right to remain silent. In the absence of any clarification, it is reasonable to conclude that Agent Verduzco interpreted the defendant's invocation of his rights to include his right to counsel.
While there was no evidence presented on this point, the Court notes that, in its experience, law enforcement officers are more focused on whether the defendant is willing to speak with them, rather than the specific right invoked. That is because regardless of whether a defendant invokes his right to remain silent or his right to counsel, the effect is almost always the same - law enforcement cannot speak with the defendant.
One could argue that the Court is being unfair in expecting Agent Verduzco to catch the error in the Court's assumption that the defendant also invoked his right to counsel (assuming that was an error) and specify to the Court the right(s) invoked. But if that is true for an experienced law enforcement officer, then it is equally unfair to require this unsophisticated defendant to specify to Agent Verduzco which right(s) he was invoking. It is undisputed that the defendant is from another country who has no experience with the United States criminal justice system. That inexperience is demonstrated by the confusion the defendant displayed about his rights, primarily his right to counsel, during his later interactions with FBI agents. For example, after Agent Ramirez tells the defendant that he needs to advise him of his rights, the defendant says “[w]hat rights?” (7/2/21 Tr. at 37, 56.) The government contends that the defendant asked that question because FBI Agent Ramirez had not yet explained the defendant his rights. However, that contention is undercut by the fact that the defendant had already been explained his rights by Border Patrol Agent Verduzco. Moreover, during the advisal of rights by Agent Ramirez, the defendant asks about his right to an attorney, specifically whether he has one, needs one, and how he would get one. And during the interview the defendant again asks about an attorney and wanting an attorney if he is going to get his girlfriend in trouble by cooperating.
Actually, what is unfair to Agent Verduzco is that his memory even had to be tested and subjected to intense scrutiny. When the FBI agents picked up the defendant from Border Patrol, they could have asked Agent Verduzco or his supervisor whether the defendant was Mirandized, and if so, whether the defendant invoked any or all of his rights. If FBI agents made that inquiry, they likely would have memorialized their conversation with Agent Verduzco and/or remembered that conversation regarding whether the defendant invoked a right or rights. The Court says that because it is an understatement to say that FBI agents had far more interest in the defendant who was charged with serious crimes, than Agent Verduzco who was merely processing yet another arrestee who allegedly illegally entered the United States, and who had many more arrestees to process during the evening of November 19, 2019. It was the FBI agents' responsibility to find out what, if any, rights the defendant invoked, and they failed to do so.
Given the defendant's confusion about his rights, again, primarily his right to counsel, during his later interaction with FBI agents, the Court is hard-pressed to conclude that the defendant distinguished between his right to remain silent and his right to counsel when he supposedly told Agent Verduzco that he did not want to answer questions. And, as discussed earlier, the Court also cannot conclude that Agent Verduzco drew any distinction between these two rights because he cannot recall (even with the help of his reports) how the defendant responded after being advised of his Miranda rights, and could only draw the conclusion that the defendant invoked his rights based on the unsigned Miranda form.
Based on the evidence discussed above, the Court concludes that when the defendant invoked his rights, he invoked all his rights, including his right to counsel. That invocation prevented FBI agents from interviewing the defendant without counsel. As a result, the Court concludes that the Fifth Amendment was violated when FBI agents interrogated the defendant without counsel, even though the subject matter of their interrogation was unrelated to his arrest by Border Patrol. And, as discussed in Roberson, there is no significance to the fact that the FBI agents did not know that the defendant had previously invoked his Fifth Amendment rights. The FBI agents had the burden to find out from Border Patrol agents whether the defendant invoked his rights. Because they did not do so, the defendant's statements made to the FBI without counsel are deemed involuntary under the Fifth Amendment.
b. The Defendant Did Not Reinitiate Communication with FBI Agents.
The government presents an alternative argument to avoid suppression of the defendant's statements. That is, even if the defendant's invocation of his Fifth Amendment right to counsel while in Border Patrol custody means that FBI agents could not question the defendant without counsel, there was no constitutional violation because the defendant reinitiated a conversation with Agent Ramirez, and later validly waived his right to counsel. The government specifically points to the defendant's statement, “I'll talk; let's do it, ” made during the ride to the FBI office.
In Oregon v. Bradshaw, 462 U.S. 1039 (1983), the Supreme Court clarified the reference in Edwards to the accused initiating a further communication, exchange, or conversation with law enforcement. In Bradshaw, the defendant was asked to accompany a police officer to the station for questioning about an alcohol-related traffic accident that resulted in a death. Bradshaw, 462 U.S. at 1041. The defendant was advised of and waived his Miranda rights. Id. After speaking with the police, he was placed under arrest in connection with the traffic accident, and again advised of his Miranda rights. Id. After an officer told the defendant his theory as to how the accident occurred, the defendant said, “I do want an attorney before it goes very much further.” Id. at 1041-1042. The officer immediately terminated the conversation. Id. at 1042. Either just before or during the defendant's transport from the station to the county jail, the defendant asked a police officer: “Well, what is going to happen to me now?” Id. The officer responded: “You do not have to talk to me. You have requested an attorney and I don't want you talking to me unless you so desire because anything you say - because - since you have requested an attorney, you know, it has to be at your own free will.” Id. The defendant said he understood and spoke with the officer about the events that led to his arrest. Id. After being charged with first-degree manslaughter, the defendant moved to suppress his statements because they had been obtained in violation of his Fifth Amendment rights. Id. The trial court denied the motion, but the appellate court reversed that decision and suppressed the statements. Id. at 1042-1043. The Supreme Court granted certiorari to review that determination. Id. at 1043.
The Supreme Court pointed out that it did not hold in Edwards that “the ‘initiation' of a conversation by a defendant . . . would amount to a waiver of a previously invoked right to counsel; we held that after the right to counsel had been asserted by an accused, further interrogation of the accused should not take place ‘unless the accused himself initiates further communication, exchanges, or conversations with the police.'” Id. at 1044 (quoting Edwards, 451 U.S. at 485.). The Court emphasized that even if a defendant initiates a conversation with law enforcement that expresses his desire to speak with the police, the government must still prove that subsequent events indicated a waiver of the Fifth Amendment right to counsel. Bradshaw, 462 U.S. at 1044.
The Court did not attempt to “build a superstructure of legal refinements around the word ‘initiate.'” Id. at 1045. The Court noted that there are undoubtedly situations where a bare inquiry by a defendant about routine incidents of the custodial relationship should not be held to “initiate” a conversation or dialogue in the sense in which that word was used in Edwards. Id. Routine inquiries would include a request for a drink of water or to use the phone. Id. However, the Court found that the defendant's inquiry about what is going to happen to him, although ambiguous, “evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship.” Id. at 1045-1046. The Court concluded that the defendant's statement “could reasonably have been interpreted by the officer as relating generally to the investigation.” Id. at 1046. That conclusion was supported by the fact that the officer immediately reminded the defendant that he did not have to talk to law enforcement, and their generalized conversation occurred only after the defendant stated that he “understood.” Id. As such, the Court found that the defendant's Fifth Amendment right to counsel had not been violated because law enforcement, after advising the defendant that he did not have to talk and ensuring that he understood, could have reasonably interpreted the defendant's ambiguous statement as a reinitation of communication, and the defendant later waived his right to counsel. Id.
The Court finds that two requirements must be met under Bradshaw to establish that an arrestee who previously invoked his Fifth Amendment right to counsel reinitiated communication with law enforcement about their investigation, and thereafter validly waived that right. First, the facts must evidence that the arrestee who previously invoked his right to counsel “evinced a willingness and a desire for a generalized discussion about the investigation.” Id. at 1045-1046. That analysis focuses on the law enforcement officer's state of mind - whether the officer could have reasonably interpreted the arrestee's comment or question as a reinitiation of communication about the investigation. An officer's interpretation that a comment or question reinitiated a communication about the investigation will undoubtedly be deemed reasonable if, like in Bradshaw, the officer advises the arrestee that he does not have to speak with law enforcement because he invoked his right to counsel, and the arrestee acknowledges that he understands and still wants to talk with the officer. See Roberson, 486 U.S. at 686 (a fresh set of Miranda warnings alone will not “reassure” a suspect who has been denied counsel he has clearly requested that his rights have remained untrammeled). The second requirement of Bradshaw is that the arrestee, after reinitiating communication, validly waived his Miranda rights.
In the case at hand, Bradshaw alone does not resolve the issue of whether the defendant reinitiated communication with Agent Ramirez about the FBI investigation. Roberson, which placed the burden on law enforcement “to determine whether a suspect has previously requested counsel, ” also impacts that analysis given the unique facts here. 486 U.S. at 687. Clearly, Roberson dealt with the situation where law enforcement was unaware of the arrestee's prior invocation of counsel and wanted to interrogate the arrestee about an unrelated investigation. However, there is no reason that this same burden to determine if the arrestee previously invoked his Fifth Amendment right to counsel should not apply to a law enforcement officer who claims that an arrestee reinitiated a conversation with law enforcement. See Smith v. Illinois, 469 U.S. 91, 98 (1984) (citing Bradshaw, 462 U.S. at 1044) (“Edwards set forth a ‘bright-line rule' that all questioning must cease after an accused requests counsel” to prevent authorities from “badgering” or “overreaching” -whether explicit or subtle, deliberate or unintentional - which “might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel's assistance.”)
An officer's knowledge about whether a defendant previously invoked his right to counsel affects both an officer's ability to interview an arrestee without counsel present, as well as the ability of the officer to reasonably conclude that the defendant reinitiated communication after requesting counsel. Reinitiation of a conversation with law enforcement after an arrestee has invoked his right to counsel is premised on law enforcement knowing that the arrestee previously invoked that right. Stated another way, if law enforcement is not aware that an arrestee previously invoked his right to counsel, reinitiation of communication to demonstrate a later waiver of that right can never come into play. That conclusion is supported by the fact that the Bradshaw court found that whether a defendant who previously invoked his right to counsel expressed a willingness and desire for a generalized discussion about the investigation is assessed by how the officer interpreted the arrestee's comment(s) or question(s). Thus, if the officer does not know that an arrestee previously invoked his right to counsel, the officer is not interpreting an arrestee's comments or questions under the lens of whether the arrestee reinitiated communication, because the officer cannot confirm that the arrestee understands that he does not have to talk because he previously invoked his right to counsel. Rather, like here, the officer's focus is on whether the defendant's comments or questions suggest that he wants to talk and waive his Miranda rights, and not the nuanced analysis of whether there was a reinitiation of communication after an invocation of the right to counsel.
The Court notes that the government has not cited to a case where a court held that an arrestee reinitiated communication with a law enforcement officer who was unaware that the arrestee previously invoked his right to counsel.
Here, there is no dispute that if FBI agents knew the defendant invoked his right to counsel after being advised of his rights by Border Patrol, several of the defendant's comments and questions made even before the unequivocal and unambiguous statement that “I'll talk; let's do it, ” clearly evinced a willingness and desire to have a generalized discussion about the FBI investigation. However, neither Agent Ramirez nor Agent Terwilliger knew that the defendant invoked his right to counsel while in Border Patrol custody. They weren't told and they didn't ask. The Court notes that even if the FBI agents knew that the defendant previously invoked his right to counsel, that would not have mattered to them. Agent Terwilliger testified that even if she knew the defendant previously invoked his right to counsel, she still would have Mirandized him and interviewed him if he waived his rights, because she would have viewed his prior invocation of his right to counsel as specific to the Border Patrol investigation. That is not the law.
In fairness to the FBI agents, the Supreme Court's decisions addressing the Fifth and Sixth Amendment right to counsel can be confusing. Agent Terwilliger testified that she called the assigned prosecutor to let him know the defendant had been arrested by Border Patrol and that she asked Border Patrol to bring the defendant from Douglas to Tucson so she could pick him up the next day. She did not recall if she told the prosecutor that she planned to interview the defendant, or if the prosecutor just assumed that she would. Thus, Agent Terwilliger certainly could have asked the prosecutor for legal advice regarding whether she needed to know if the defendant had invoked his rights while in Border Patrol custody; or the prosecutor could have provided that advice.
The Court concludes that the FBI agents had a duty under both Roberson and Bradshaw to find out from Border Patrol agents if the defendant invoked his right to counsel to determine if they could attempt to interview him, or to claim the defendant reinitiated communication with them about their investigation. If they had made that inquiry, they would have realized that they could not question the defendant without counsel even on the unrelated charges. By the same token, if agents knew the defendant previously invoked his right to counsel and ensured that the defendant understood the significance of his prior invocation of his right to counsel, the agents could have reasonably concluded that the defendant's questions and comments (even those made prior to saying “I'll talk”) expressed a desire and willingness to talk to them; and they could have had that conversation if the defendant later validly waived his Miranda rights. But without knowing that the defendant previously invoked his right to counsel, the FBI agents could not have taken anything that the defendant said to draw that conclusion.
The only conclusion the agents could have drawn from the defendant's comments was that it was likely that he would waive his Miranda rights at the FBI office and talk. Indeed, Agent Ramirez made that clear when he testified that he did not engage in “chitchat” with the defendant at the FBI office to build rapport because it appeared to him that “based on the comments [the defendant] made on the drive to the FBI office, that he was ready to talk.” (7/2/21 Tr. at 12-13.) Additionally, Agent Ramirez's response to the defendant's questions and comments made during the car ride also illustrate that he merely believed the defendant would waive his Miranda rights. After the defendant asked if this was about Edgar, and then said that he did not shoot him, he only heard the shots, and Border Patrol shot him, Agent Ramirez simply said that they could not talk in the car, but they would have an opportunity to talk at the FBI office. Agent Ramirez's response was not cautionary in terms of advising the defendant that he did not have to talk because he previously invoked his right to counsel (again, because Agent Ramirez did not know that). In fact, Agent Ramirez's response arguably encouraged a further conversation at the FBI office, which is reflected by the defendant subsequently saying “I'll talk” during the drive to the FBI office. In light of this evidence, Agent Ramirez could only have interpreted the defendant's comments and questions as an indication he would likely later waive his Miranda rights, and not his willingness and desire to have a discussion about the FBI investigation notwithstanding his earlier assertion of his right to counsel. The fact that the result may be the same - i.e., the defendant would have still later waived his right to counsel - is not relevant to the legal analysis of “reinitiation” under Bradshaw and Roberson.
Because the FBI agents did not know that the defendant had invoked his right to counsel, the agents could not have interpreted the defendant's questions and comments as a reinitiation of communication with them about their investigation. As a result, the Court concludes that the defendant's Fifth Amendment right to counsel was violated when FBI agents later interviewed him without counsel, regardless of whether defendant later validly waived his Miranda rights. See Roberson, 486 U.S. at 686 (“[W]e also disagree with petitioner's contention that fresh sets of Miranda warnings will ‘reassure' a suspect who has been denied the counsel he has clearly requested that his rights have remained untrammeled.”). Therefore, the defendant's statements made during the interview are deemed involuntary and should be suppressed.
Assuming arguendo that the defendant reinitiated communication with FBI agents, the Court also concludes that the second requirement of Bradshaw cannot be met because, as discussed in text infra, the defendant did not knowingly and intelligently waive his right to counsel. See United States v. Karr, 742 F.2d 493, 495 (9th Cir. 1984) (“The standard for waiver of the Fifth and Sixth Amendment right to counsel is the same: the waiver must be (1) voluntary, and (2) a knowing and intelligent relinquishment of a known right or privilege.”).
To summarize, the Court concludes that the defendant invoked his right to counsel under the Fifth Amendment while in Border Patrol custody and FBI agents violated that right when they questioned him without counsel on their unrelated investigation. Because the FBI agents failed in their duty to determine if the defendant had previously invoked his right to counsel, Agent Ramirez could not have interpreted the defendant's questions and comments as a reinitiation of communication with them about their investigation. As a result, the defendant's statements are deemed involuntary. Therefore, the Court recommends that the defendant's statements made during the interview be suppressed as a result of this Fifth Amendment violation.
C. The Defendant's Sixth Amendment Rights Were Violated Because He Did Not Knowingly and Intelligently Waive His Right to Counsel.
The defendant argues that his Sixth Amendment right to counsel was violated because did not knowingly, intelligently, and voluntarily waive that right, which attached when he was formally charged in an indictment. The defendant argues that his confusion about his rights when dealing with FBI agents shows that he did not fully understand his rights. The defendant also argues he did not “knowingly and intelligently” waive his rights because he was never advised that he was under indictment, a fact that the government cannot dispute. The Court first turns to whether the failure to inform a defendant of the charges against him is a factor that can be considered in determining whether the defendant validly waived his Sixth Amendment right to counsel.
1. The Failure to Inform an Arrestee of the Offenses Charged Is a Factor That a Court Can Consider In Determining Whether There Was a “Knowing and Intelligent” Waiver of the Sixth Amendment Right to Counsel.
“The Sixth Amendment right to counsel is analytically distinct from the Fifth Amendment right created by Miranda.” United States v. Karr, 742 F.2d 493, 495. The Sixth Amendment right to counsel “attaches ‘when formal judicial proceedings are initiated against an individual by way of indictment, information, arraignment, or preliminary hearing.'” Karr, 742 F.2d at 495 (quoting United States v. Gouveia, 467 U.S. 180 (1984); see also McNeil, 501 U.S. at 175; United States v. Hayes, 231 F.3d 663, 673 (9th Cir. 2000) (en banc); United States v. Pace, 833 F.2d 1307, 1312 (9th Cir. 1987). Here, the defendant's right to counsel under the Sixth Amendment attached upon issuance of the Superseding Indictment. See Karr, 742 F.2d at 495 (defendant's Sixth Amendment rights attached when he was indicted prior to his arrest); Pace, 833 F.2d at 1307. The issue becomes whether the defendant validly waived his rights.
The Supreme Court has held that “an accused who is admonished with the warnings prescribed by. . . Miranda has been sufficiently apprised of the nature of his Sixth Amendment rights, and of the consequences of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelligent one.” Patterson v. Illinois, 487 U.S. 285, 296 (1988). In Patterson, the Supreme Court noted that lower courts have suggested that something beyond Miranda warnings is or may be required before a Sixth Amendment waiver can be considered “knowing and intelligent.” 487 U.S. at 295 n. 8. However, the Court also noted that, with one exception, these courts generally have failed to suggest what that “something more” should be. Id. That exception was the Second Circuit's decision in United States v. Mohabir, 624 F.2d 1140, 1150 (2d Cir. 1980), where that court reasoned that “in addition to the Miranda warnings, an accused should be informed that he has been indicted before a postindictment waiver is sought.” Id. However, the Supreme Court did not address “the question whether or not an accused must be told that he has been indicted before a postindictment Sixth Amendment waiver will be valid. ” Id. Nor did that Court “pass on the desirability of so informing the accused - a matter that can be reasonably debated.” Id.
In United States v. Charria, 919 F.2d 842 (2d Cir. 1993), the Second Circuit relied on Patterson in reversing Mohabir. The court held that providing a defendant “with the information that he is also under indictment, the desirability of which is debatable, see Patterson, 487 U.S. at 295-96 n. 8, is not constitutionally required.” 919 F.2d at 848. Rather, the court reasoned that “giving an indicted defendant Miranda warnings is sufficient to make ‘knowing and intelligent' his waiver of the sixth amendment right to counsel, even if the defendant has not been expressly informed of the indictment pending against him.” Id. The court relied on the Supreme Court's pragmatic approach in Patterson where that Court concluded that “there is no ‘substantial difference between the usefulness of a lawyer to a suspect during [preindictment] custodial interrogation, and his value to the accused at postindictment questioning[.]'” Id.
The Court notes that the view that the usefulness of a lawyer to an arrestee is no different if the questioning occurs preindictment or postindictment may be inconsistent with the Supreme Court's later decision in McNeil. In that case, the Court noted that the “purpose of the Sixth Amendment counsel guarantee - and hence the purpose in invoking it - is to ‘protec[t] the unaided layman at critical confrontations' with his ‘expert adversary', the government, after ‘the adverse positions of government and defendant have solidified' with respect to a particular alleged crime.” McNeil, 501 U.S. at 177-178. By contrast, the Miranda-Edwards guarantee under the Fifth Amendment protects “a quite different interest: the suspect's ‘desire to deal with the police only through counsel.'” Id., 501 U.S. at 178.
The Ninth Circuit also appears to be of the view a defendant need not be advised of the indictment against him in order to “knowingly and intelligently” waive his Sixth Amendment right to counsel. In Karr, which was decided prior to Patterson and Charria, the Ninth Circuit addressed whether Miranda warnings were sufficient for an indicted defendant to knowingly and intelligently waive the Sixth Amendment right to counsel, or whether something more is required. 742 F.2d at 495. After discussing a split in the circuits on this issue, the court held that “[a] defendant who has been adequately informed of his right to counsel and of the fact that formal judicial proceedings have begun against him may validly waive his Sixth Amendment right to counsel.” Id. at 496. However, in that case, the defendant was aware that he had been indicted prior to waiving his Sixth Amendment right to counsel. Id. at 495. And the court did not elaborate on how a defendant who has been indicted prior to his arrest would know “that formal proceedings have begun against him” if he was not made aware of the indictment.
Subsequently, in Norman v. Ducharme, 871 F.2d 1483, 1487 (9th Cir. 1989), the Ninth Circuit cited Patterson in noting that “[t]he Supreme Court has declined to decide whether an accused must be told that he has been formally charged before he can knowingly and intelligently waive the sixth amendment right.” The Ninth Circuit also did not address that issue because the court concluded that the Miranda waiver was valid under the Sixth Amendment because the defendant was apprised of “the nature of the crime for which he was being arrested and the gravity of his situation.” Norman, 871 F.2d at 1487. Specifically, the defendant was “at the time of his arrest shown a copy of his arrest warrant, which stated that an information charging first degree murder had been filed.” Id.
More recently, in an unpublished decision, the Ninth Circuit, relying on Norman, stated that “[i]f a defendant has been indicted, we have disavowed a categorical rule requiring that he be notified of the indictment.” Miller v. Baldwin, 723 Fed.Appx. 408, 413 (9th Cir. 2018). Instead, the court noted that “the inquiry is contextual and a waiver is valid if the circumstances indicate the defendant was apprised of his rights, the criminal liability he potentially faced, and the gravity of the situation.” Miller, 723 Fed.Appx. at 413. The court concluded that the defendant's waiver of his right to counsel was valid under the Sixth Amendment because the defendant was advised of his rights, the potential criminal liability, and the gravity of his situation. Id.
As noted earlier, Karr, Norman, and Miller, seem to reflect that the Ninth Circuit does not require a defendant to be informed of the indictment against him for there to be a “knowing and intelligent” waiver of the Sixth Amendment right to counsel. However, the Court notes that result in each case turned on the fact that the defendant was either aware of the indictment, the nature of the crimes, and/or the gravity of his situation. Nevertheless, this Court will proceed on the premise that a defendant need not be advised of the indictment for there to be a “knowing and intelligent” waiver of his Sixth Amendment right to counsel.
However, the Ninth Circuit cases discussed above, as well as Charria, focus on whether there is a per se rule that a Sixth Amendment waiver of the right to counsel can never be “knowing and intelligent” if the defendant is not advised of the indictment. None of these cases or Patterson hold that the failure to advise a defendant of the indictment against him cannot be one of the many factors that a court considers in determining whether the waiver of his Sixth Amendment right to counsel was “knowing and intelligent.” In fact, while the Ninth Circuit in Miller disavowed a categorical rule that a defendant must be notified of an indictment to make a knowing and intelligent waiver of his right to counsel, the court concluded that the inquiry is contextual. This Court takes that to mean that a defendant's knowledge about an indictment is a fact that can be considered in determining the validity of the waiver of the Sixth Amendment right to counsel. 723 Fed.Appx. at 413. In light of Miller and the absence of any prohibition on doing so, this Court concludes that the failure to advise a defendant of the indictment against him is one circumstance among the totality of the circumstances that can be considered in determining whether a waiver of the right to counsel is valid under the Sixth Amendment. The validity of the waiver is addressed below.
2. The Defendant Did Not Knowingly and Intelligently Waive His Sixth Amendment Right to Counsel.
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). In deciding whether a valid waiver has occurred under the totality of the circumstances, a court considers several factors: (1) the defendant's mental capacity; (2) whether the defendant signed a written waiver; (3) whether the defendant was advised of his rights in his native tongue; (4) whether the defendant appeared to understand his rights; (5) whether the defendant's rights were individually and repeatedly explained to him; and (6) whether the defendant had prior experience with the criminal justice system. United States v. Crews, 502 F.3d 1130, 1140 (9th Cir. 2007). 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).
In addition to the failure to advise the defendant of the charges in the indictment, the defendant argues that the standard for a valid Miranda waiver cannot be met because he did not understand his Miranda rights, which is evidenced by his repeated questions and comments about his rights generally, and specifically his right to have an attorney. With respect to the advisal of rights, the defense points to Agent Ramirez's testimony that when he told the defendant that he needed to be advised of his rights, the defendant asked: “What do you mean my rights?” (7/2/21 Tr. at 37.) Next, the defense points to Agent Ramirez's testimony that during the advisal of rights, the defendant on at least three occasions had questions about his right to an attorney. Id. at 17. The transcript of the interview (which was translated from Spanish to English) reflects that the defendant asked: “Do I have an attorney or what?” Id. However, Agent Ramirez testified that he disagreed with one translation; he believes the defendant said: “An attorney, how do I get one or what?” Id. Agent Ramirez further testified that after asking the defendant for audible responses as to whether the defendant understood a particular right, the defendant said: “Well, you just told - it's just that you tell me for me to remain silent. Y ou should have told me that at the very beginning. You or I wouldn't have talked since I got into the car.” Id. at 41. Agent Ramirez also testified that prior to obtaining the defendant's signature on the waiver of rights form, the defendant asked: “Well, do I need an attorney or what?” Id. at 43. The defense also points to Agent Ramirez's testimony that during the interview the defendant mentions an attorney in relation to the involvement of his wife or girlfriend. Id. at 18. Specifically, the defendant said, “words to the effect of, ‘I'm not going to get her in trouble, right? If not, so they can give me an attorney.'” Id. at 49. Agent Ramirez also testified that the defendant expressed concern that his cooperation would get her in trouble and said: “If that's what's going to happen, then I want an attorney.” Id. at 50. The defense argues that the defendant's many comments and questions establish that he did not understand his right to counsel, and therefore, could not have knowingly and intelligently waived that right.
The government points out that the defendant said “what rights” prior to being advised of his Miranda rights. Thus, the government argues that this comment was not unusual given that the defendant had not yet been explained his rights. The government concedes that the defendant asked about having an attorney or the need for an attorney on several occasions. However, the government points to Agent Ramirez's testimony that he always told the defendant that he had the right to an attorney, it was the defendant's decision as to whether he wanted an attorney, and the defendant never requested an attorney after being advised of his rights or during the interview.
There is certainly no doubt that the defendant acknowledged, either verbally or non verbally, that he understood each right explained to him by Agent Ramirez. And there is no evidence of intentional coercive conduct by the FBI agents. As such, the Court concludes that the defendant voluntarily waived his Sixth Amendment right to counsel. But that obviously does not end the analysis for the validity of a waiver of the Sixth Amendment right to counsel. As discussed below, the Court concludes that the totality of circumstances show that the defendant did not knowingly and intelligently waive that right.
As discussed earlier, this Court has concluded that the failure to inform the defendant of the criminal charges is a factor that can be considered in determining whether the defendant's waiver of his rights was “knowing and intelligent” for purposes of the Sixth Amendment. And, once again, it is undisputed that the defendant was never shown the arrest warrant which listed the charges or advised of the charges. Indeed, the defendant asked about the charges but was never advised of the charges at any point during his interaction with FBI agents. And the defendant did not display a sufficient understanding of the charges, the criminal liability that he faces, and/or the gravity of his situation. As a result, this factor weighs strongly against a “knowing and intelligent” waiver of his right to counsel.
The failure to advise the defendant of the charges at any point in time also reflects deceptive conduct by law enforcement, even though likely unintentional, which impacts the validity of the Miranda waiver. Specifically, Agent Ramirez told the defendant that he could not answer his question about the charges until he waived his Miranda rights. Id. at 42. As noted earlier, that is just not true; and that response had the effect of conditioning the defendant's ability to learn of the charges on a waiver of his rights. Moreover, Agent Ramirez did not follow through and answer the defendant's question about the charges after he waived his rights. This effort, whether intentional or not, to keep the defendant in the dark about the charges is evidence of deception that weighs against the waiver being “knowing and intelligent.”
Finally, the defendant's many comments and questions about his right to counsel, made before and during the advisal of rights as well as during the interview, reflect that the defendant, who is from another country and has no experience with the United States criminal justice system, did not fully understand his rights. For instance, the defendant asked for clarification about his right to counsel on multiple occasions. Specifically, he asks if he has an attorney, whether he needs an attorney, and later asks how he would get an attorney. The defendant later says that he wants an attorney if his cooperation is going to get his girlfriend in trouble; but he continues to speak with the FBI without counsel because he is assured by Agent Ramirez that his girlfriend is not in trouble.
The Court concludes that the defendant's confusion about his right to counsel, coupled with the fact that he did not know the charges against him, which resulted, in part, from deceptive conduct by law enforcement, evidence that his waiver of his right to counsel was not “knowing and intelligent” under the Sixth Amendment. As such, the Court recommends that the defendant's statements made during the interview be suppressed.
D. There Was Not a Violation of McNabb-Mallory/18 U.S.C. § 3501(c) Because the Defendant's Statements Were Made Within Six Hours of His Arrest by the FBI Pursuant to the Arrest Warrant.
Federal Rule of Criminal Procedure 5(a) provides that “[a] person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge.” When a defendant's right to “prompt presentment” has been violated, the admissibility of any resulting confession is governed by two sources: 18 U.S.C. § 3501(c) and what courts have termed the McNabb-Mallory rule. See Corley v. United States, 556 U.S. 303, 322 (2009).
In McNabb v. United States, 318 U.S. 332, 334 (1943), the Supreme Court held that “confessions [are] inadmissible when obtained during an unreasonable presentment delay.” Rule 5(a) was adopted, in part, in response to McNabb. In Mallory v. United States, 354 U.S. 449, 455 (1957), the Supreme Court, applying Rule 5(a), held that a confession given seven hours after an arrest and before the defendant was presented to a magistrate judge was inadmissible as a result of this extended delay. Thus, the McNabb-Mallory rule generally rendered confessions inadmissible if made during periods of detention that violated the prompt presentment requirement of Rule 5(a).
Subsequent to the Supreme Court's decisions in McNabb and Mallory, Congress enacted 18 U.S.C. § 3501(c), which establishes a six-hour safe harbor for voluntary confessions. Section 3501(c) provides that:
a confession made or given by a person . . . while such person was under arrest or other detention in the custody of any lawenforcement officer or law enforcement agency, shall not be inadmissible solely because of delay in bringing such person before a magistrate judge or other officer empowered to commit persons charged with offenses against the laws of the United States . . . if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following his arrest or other detention: Provided, That the time limitation contained in this subsection shall not apply in any case in which the delay in bringing such person before such magistrate judge or other officer beyond such six-hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate judge or other officer.
The Ninth Circuit has noted that “[t]he rule as it stands today is relatively simple to apply.” United States v. Gowadia, 760 F.3d 989, 993 (2014). When a suppression motion is based on a violation of 18 U.S.C. § 3501, Rule 5(a), and/or McNabb-Mallory, “the district court looks to see whether the confession was obtained within six hours of arrest.” Gowadia, 760 F.3d at 993. If so, the confession is admissible (assuming it is not inadmissible for some reason). Id. “If, however, the ‘confession occurred before presentment and beyond six hours, . . . the court must decide whether delaying that long was unreasonable or unnecessary . . . and if it was, the confession is to be suppressed.'” Id. (quoting Corley, 556 U.S. at 322.)
The starting point for claims under 18 U.S.C. § 3501 is whether the defendant confessed within six hours of arrest or other detention. Corley, 556 U.S. at 322. The defense argues that the clock for purposes of section 3501(c) started upon the defendant's arrest by Border Patrol on November 18, 2019 on an immigration violation. Thus, the defendant's confession made to the FBI two days later is outside the six-hour safe harbor of section 3501(c). The government argues that section 3501(c) was triggered when the defendant was taken into FBI custody on November 20, 2019, pursuant to the arrest warrant. As such, the defendant's confession was clearly within safe harbor.
The Supreme Court's decision in United States v. Alvarez-Sanchez, 511 U.S. 350 (1994), while not factually identical to the case at hand, provides some guidance on when the six-hour safe harbor is triggered when there are multiple arrests of a defendant. In that case, the Court held that:
[i]f a person is arrested and held on a federal charge by ‘any' law enforcement officer - federal, state, or local - that person is under ‘arrest or other detention' for purposes of § 3501(c) and its 6-hour safe harbor period. If, instead, the person is arrested and held on state charges, § 3501(c) does not apply, and the safe harbor is not implicated.Alvarez-Sanchez, 511 U.S. at 358.
The Court reasoned that because the defendant was under arrest on state narcotic charges at the time he confessed to United States Secret Service agents, the terms of section 3501(c) did not come into play “until he was arrested on a federal charge - after he made the statement.” Id. at 359. The Court did identify “one presumably rare scenario that might present some potential for confusion; namely, the situation that would arise if state or local authorities, acting in collusion with federal officers, were to arrest and detain someone in order to allow the federal agents to interrogate him in violation of his right to a prompt federal presentment.” Id. But the Court did not address that situation because there was no claim that such collusion occurred. Id.
Alvarez-Sanchez certainly could be broadly interpreted to mean that a defendant, regardless of whether he is in state or federal custody on an earlier unrelated charge, is never under “arrest” or in “other detention” for purposes of section 3501(c) until the agents armed with a federal arrest warrant based on different charges effectuate the arrest. However, Alvarez-Sanchez could also be construed narrowly to apply only to the situation where a defendant is in state custody on unrelated charges, because section 3501(c) is not implicated by the state charges. The Court simply did not address the situation present in the case at hand - a defendant in federal custody on earlier unrelated charges who is being arrested on other federal charges.
However, the Second Circuit has subsequently addressed the almost exact factual scenario presented here. United States v. Gonzalez, 764 F.3d 159 (2d Cir. 2014). The defendant in Gonzalez was charged with attempted murder on an indictment issued by a federal grand jury on July 24, 2008, and an arrest warrant issued. Gonzalez, 764 F.3d at 164. The next day, while incarcerated and being held for deportation on an unrelated federal immigration offense, he was visited by federal agents who executed the arrest warrant and interviewed the defendant. Id. The Second Circuit's opinion is not clear as to when the defendant was presented to a magistrate judge for his initial appearance. Nevertheless, the defendant made a motion to suppress his confession arguing that it “was obtained in violation of the duty to speedily present” him before a magistrate judge. Id. at 167. On appeal of the denial of the suppression motion, the defendant acknowledged that he was not formally arrested during the interview, and instead argued that he was “constructively arrested at the moment when the government had the authority to effectuate the arrest, i.e., when the arrest warrant was issued on July 24.” Id.
The Second Circuit rejected that argument and held that “section 3501(c) was not immediately triggered by the present indictment and issuance of an arrest warrant.” Id. at 168. The Court further held that defendants who are “in federal custody on earlier unrelated charges, but for whom an arrest warrant on new charges is issued, are ‘arrested' for purposes of section 3501 once any questioning on the new charges begins.” Id. The Court reasoned that because the defendant's first interaction with the government on the new charges coincided with the beginning of his questioning, the defendant's statement was clearly within the safe harbor. Id. The court did recognize “the potential for some abuse in a system allowing unfettered interrogation of defendants who are incarcerated on other charges.” Id. In doing so, the court noted that “[w]hile section 3501(c) evinces a congressional intent to allow some questioning to take place before presentment, it is also clear that this period must be limited.” Id.
Because the Court has not been provided with or has found any Ninth Circuit precedent on this exact issue, the Court will follow the well-reasoned holding of Gonzalez in concluding that the clock for purposes of section 3501(c) started upon the defendant's arrest by the FBI on the charges alleged in the indictment. There is no doubt that the defendant was placed under “arrest” by two different federal law enforcement agencies at two different points in time: (1) when he was arrested by Border Patrol on November 18, 2019 on immigration violations; and (2) when he was arrested by the FBI pursuant to the warrant on November 20, 2019 on the charges contained in the instant indictment. These arrests on unrelated charges by two different law enforcement agencies created two independent triggers for starting the safe harbor clock. When the defendant was arrested by Border Patrol agents on November 18, 2019 on the immigration violations, the safe harbor clock began for purposes of any immigration-related charges. And, as in Gonzalez, the safe harbor clock started anew for the charges in the pending indictment when he was arrested by the FBI on November 20, 2019. Because the defendant's confession was obtained well within six-hours of his arrest by the FBI, it falls within section 3501 (c)'s safe harbor. Accordingly, the Court recommends that the District Court deny the Motion to Suppress based on a McNabb-Mallory violation.
The Court notes that an interesting issue, although not raised by the defense, is whether the defendant was in “other detention” for purposes of section 3501(c) while he was in Border Patrol custody between the time the FBI became aware he was in Border Patrol custody on November 19, 2019 at 6:00 p.m., and when FBI agents picked him up on the arrest warrant on November 20, 2019. In Gowadia, the Ninth Circuit reserved judgment on whether the term “other detention” used in section 3501(c) “might have independent meaning from ‘arrest' upon formal charges in an extraordinary situation.” 760 F.3d at 995. The court assumed without deciding for purposes of the appeal that “the two terms have different meanings.” But the court did not address this “potentially far-reaching question” because it concluded that the defendant could not invoke McNabb-Mallory because the defendant “was not, during the period in question, either formally arrested or in ‘other detention' within the meaning of§ 3501.” The defendant was essentially in custody “limbo” between the time that Border Patrol called Agent Terwilliger to advise her that the defendant was in their custody and the time she picked him up the next day in Tucson. The Court says that because the only evidence presented at the suppression hearing is that the defendant remained in Border Patrol custody because of the FBI arrest warrant and Agent Terwilliger's transportation request, and not because he was going to be charged with an immigration offense. Indeed, the defendant had been in Border Patrol custody for well over a day when Agent Terwilliger made her transportation request but had not been charged with an immigration offense. And there was no testimony that the defendant was ever going to be charged with an immigration offense. Thus, it appears that if it were not for the FBI warrant and Agent Terwilliger's request that the defendant remain detained until the following day so she could pick him up in Tucson, the defendant would have been released from Border Patrol custody and immediately removed to his home country. If that is true, an argument could be made that the defendant was in “other detention” as of 6:00 p.m. on November 19, 2019, for purposes of section 3501(c) because of the actions of the FBI. If that is true, his confession was outside the six-hour safe harbor. All that said, this Court is not going to further address whether the defendant was in “other detention” for purposes of section 3501(c) because that specific argument has not been raised by the defense. Perhaps that argument was not raised because the reality is that even if FBI agents had picked up the defendant on the evening of November 19, 2019, he would still have been presented to a magistrate judge, as he was, the following day.
A defendant's confession made within six hours of his arrest and prior to presentment still must be voluntary to be admissible at trial. But that is an analysis under the Fifth and/or Sixth Amendment and not section 3501(c).
CONCLUSION
For the reasons discussed above, the Court recommends that the District Court grant the defendant's Motion to Suppress. Specifically, the Court recommends that the defendant's statements made during his interview at the FBI office be suppressed based on violations of the Fifth and Sixth Amendments. The Court further recommends that the statements identified above made during the car ride to the FBI office and the statements made at the FBI office be suppressed based on the violation of Rule 4(c)(3)(A).
Pursuant to 28 U.S.C. § 636(b) and Rule 59(b)(2) of the Federal Rules of Criminal Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. No reply shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number: CR 15-01390-TUC-JGZ.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge in accordance with Fed. R. Crim. P. 59 may result in waiver of the right of review.