United States v. Gomez

Full title: UNITED STATES OF AMERICA, Plaintiff, v. ISRAEL ALBERTO RIVAS GOMEZ and…

Court: United States District Court, Eastern District of California

Date published: Aug 3, 2021

1:18-cr-00002-NONE-SKO (E.D. Cal. Aug. 3, 2021)

Opinion

1:18-cr-00002-NONE-SKO

08-03-2021

UNITED STATES OF AMERICA, Plaintiff, v. ISRAEL ALBERTO RIVAS GOMEZ and JOHN DOE aka “Marcos Castro, ” Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT CASTRO'S MOTION TO SUPPRESS STATEMENTS MADE DURING HIS INTERROGATION; DENYING MOTION FOR AN EVIDENTIARY HEARING; AND DENYING MOTION TO STRIKE GOVERNMENT DECLARATIONS

UNREDACTED VERSION FILED

UNDER SEAL (Doc. Nos. 119, 166, 167)

On June 2, 20220 counsel for defendant John Doe aka “Marcos Castro” filed an omnibus motion under seal presenting at least eight separate motions over the course of its 572 pages including supporting exhibits. (Doc. No. 119.) On July 10 and 17, 2020, the government filed an opposition to defendant Castro's omnibus motion. (Doc. Nos. 138, 154.) On August 5, 2020, defendant Castro filed a reply under seal. (Doc. No. 164.) On September 22, 2020, defendants Rivas Gomez and Marcos Castro jointly filed a motion seeking an evidentiary hearing in connection with their motions to suppress evidence. (Doc. No. 166.) On September 23, 2020, defendant Castro moved to strike declarations filed by the government in its opposition to his omnibus motion. (Doc. No. 167.) On September 30, 2020, the government filed its opposition to the defendants' joint motion for an evidentiary hearing. (Doc. No. 173.)

Argument was heard by the court on all of the defendants' pretrial motions on October 1 and 15, 2020. Assistant United States Attorneys Kathleen Servatius and Ross Pearson appeared on behalf of the government at those hearings. Federal Defender Heather Williams and Assistant Federal Defender Erin Snider appeared for defendant Rivas Gomez. Attorney Kevin Little appeared for defendant Marcos Castro.

Following the October 2020 hearings, the court requested supplemental briefing addressing specific issues related to defendant Castro's motion to suppress. (Doc. No. 185.) The parties filed simultaneous supplemental briefs on February 22, 2021. (Doc. Nos. 194, 195.) Further oral argument was heard on February 26, 2021, with Assistant United States Attorneys Kathleen Servatius and Ross Pearson appearing on behalf of the government; attorney Kevin Little appearing for defendant Marcos Castro; and Federal Defender Heather Williams appearing for defendant Rivas Gomez.

The nature of this criminal prosecution has been summarized in the court's prior orders and need not be repeated here. The various categories of motions brought by defendant Castro by way of his omnibus motion have been addressed in separate orders. This order will be limited to addressing only defendant Castro's motion to suppress his statements made during his interrogation by law enforcement officers, his request for an evidentiary hearing in that regard, and his motion to strike the declarations submitted by the government in opposition to his motion to suppress his statements.

I. APPLICABLE LEGAL STANDARDS

The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself[.]” U.S. Const. amend. V. The Supreme Court has “recognized that custodial interrogations, by their very nature, generate ‘compelling pressures which work to undermine the individuals will to resist and to compel him to speak where he would not otherwise do so freely.'” Moran v. Burbine, 475 U.S. 412, 420 (1986) (quoting Miranda v. Arizona, 384 U.S. 436, 467 (1966)). “To combat this inherent compulsion, and thereby protect the Fifth Amendment privilege against self-incrimination, Miranda imposed on the police an obligation to follow certain procedures in their dealings with the accused.” Moran, 475 U.S. at 420 ; see also Dickerson v. United States, 530 U.S. 428, 435 (2000); United States v. IMM, 747 F.3d 754, 764 (9th Cir. 2014). Specifically, the Supreme Court has held the Constitution requires that a person questioned by law enforcement officers after being “taken into custody or otherwise deprived of his freedom of action in any significant way” must first “be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Stansbury v. California, 511 U.S. 318, 322 (1994) (quoting Miranda, 384 U.S. at 444); see also IMM, 747 F.3d at 764. “An officer's obligation to administer Miranda warnings attaches . . . only where there has been such a restriction on a person's freedom as to render him in custody.” Stansbury, 511 U.S. at 322 (internal quotation marks omitted) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). The Supreme Court has also explained that:

The prophylactic Miranda warnings are not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected. Reviewing courts therefore need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably conve[y] to [a suspect] his rights as required by Miranda.

Duckworth v. Eagan, 492 U.S. 195, 203 (1989) (internal citations and quotations omitted).

“For inculpatory statements made by a defendant during custodial interrogation to be admissible in evidence, the defendant's ‘waiver of Miranda rights must be voluntary, knowing, and intelligent.'” United States v. Garibay, 143 F.3d 534, 536 (9th Cir. 1998) (quoting United States v. Binder, 769 F.2d 595, 599 (9th Cir. 1985)); see also United States v. Shi, 525 F.3d 709, 727 (9th Cir. 2008). “A valid waiver of Miranda rights depends upon the ‘totality of the circumstances including the background, experience, and conduct of defendant.'” Shi, 525 F.3d at 727 (quoting Garibay, 143 F.3d at 536). “To satisfy this burden, the prosecution must introduce sufficient evidence to establish that under the ‘totality of the circumstances,' the defendant was aware of ‘the nature of the right being abandoned and the consequences of the decision to abandon it.'” Garibay, 143 F.3d at 536-37 (quoting Moran, 475 U.S. at 421); see also United States v. Younger, 398 F.3d 1179, 1185 (9th Cir. 2005). Moreover, there is a presumption against the waiver of Miranda rights and a heavy burden of showing a valid waiver by a preponderance of the evidence is on the prosecution. Colorado v. Connelly, 479 U.S. 157, 168 (1986); United States v. Bernard S., 795 F.2d 749, 752 (9th Cir. 1986); Shi, 525 F.3d at 727- 28; see also Garibay, 143 F.3d at 537 (“The government's burden to make such a showing ‘is great,' and the court will ‘indulge every reasonable presumption against waiver of fundamental constitutional rights.'”) (quoting United States v. Heldt, 745 F.2d 1275, 1277 (9th Cir. 1984). Courts are to consider the following factors in determining whether a defendant “knowingly and intelligently waived [her] constitutional rights”:

(1) whether the defendant signed a written waiver; (2) whether the defendant was advised of his rights in his native tongue; (3) whether the defendant appeared to understand his rights; (4) whether a defendant had the assistance of a translator; (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.

Garibay, 143 F.3d at 538 (internal citations omitted); see also United States v. Crews, 502 F.3d 1130, 1140 (9th Cir. 2007).

Below the court will first address defendant's motion to strike the declarations submitted by the government in opposition to his motion to suppress his interrogation statements before turning to the specific grounds upon which he seeks suppression of those statements.

II. MOTION TO STRIKE GOVERNMENT'S DECLARATIONS

As an initial matter, defendant Castro moves to strike the declarations of FBI Agent Ryan Demmon, Homeland Security Investigations (HSI) Agent Timothy Kotman, Immigration and Customs Enforcement Deportation Officer (DO) Monique Jacques, DO Sellenia Romero, FBI Task Force Officer (TFO) Mark Diedrich, and Sheriff's Detective Jose Mora. (Doc. No. 167.) He argues that the government failed to provide discovery pertaining to these declarations, which could possibly be used by him to impeachment the declarants. (Id. at 1.) The government argues that it was not obligated to produce impeachment evidence with respect to the declarant government officers, assuming any such evidence were to exist, since no evidentiary hearing has been scheduled in connection with the pending motion to suppress defendant's statements. (Doc. No. 171 at 1.)

“[B]ecause Giglio material ‘merely goes to the credibility of the witness, it need not be disclosed prior to the witness testifying.'” United States v. Welton, No. cr-09-00153-MMM, 2009 WL 2390848, at *7 (C.D. Cal. Aug. 1, 2009) (citing United States v. Rinn, 586 F.2d 113, 119 (9th Cir. 1978); United States v. Hopkins, Cr. No. S-05-0538-EJG-GGH, 2008 WL 4453583, *2 (E.D. Cal. Oct. 3, 2008); United States v. Marquez, 686 F.Supp. 1354, 1358 (N.D. Ill. 1988) (“Because evidence which is potentially impeaching merely goes to a witness's credibility, courts generally hold that disclosure in advance of trial is not required”); United States v. Laurins, 660 F.Supp. 1579, 1584 (N.D. Cal. 1987)).

Defendant Castro cites several cases to support his argument that the “duty to provide exculpatory evidence extends to declarations offered by the government, who may be impeached in accordance with FRE 806.” (Doc. No. 167 at 3.) The court has reviewed the cited decisions and finds that they do not support defendant Castro's motion to strike because they are either distinguishable from the present situation or are not aligned with defendant's contention. See United States v. Triumph Capital Grp., 544 F.3d 149, 161-62, 164 (2d Cir. 2008) (involving disclosure of favorable proffer session notes after trial); United States v. Jackson, 345 F.3d 59, 71 (2d Cir. 2003) (involving disclosure of exculpatory and impeachment materials concerning a testifying trial witness or hearsay declarant); United States v. Shyne, 617 F.3d 103, 107-08 (2d Cir. 2010) (affirming the district court's order denying defendant's application for production of comprehensive proffer notes of non-testifying declarants); United States v. King, 73 F.3d 1564, 1571 (11th Cir. 1996) (addressing a situation in which a non-testifying co-defendant's statements were admitted into evidence under F.R.E. 801(d)(2)(E)); United States v. Wali, 860 F.2d 588, 591 (3d Cir. 1988) (involving admission of exculpatory statements from a co-conspirator for purposes of impeachment under Rule 806). Because the cases relied upon by defendant do not support his argument, the court will deny his motion to strike the declarations offered by the government in opposition to the pending motions.

IV.MOTION TO SUPPRESS HIS INTERROGATION STATEMENTS

Defendant Castro moves to suppress statements made by him during his interrogations by law enforcement agents on December 19, 2017, December 21, 2017, and December 26, 2017, as well as any evidence obtained based on those statements. He does so on the grounds that: (1) on December 19, 2017 he was provided confusing and potentially conflicting advisements regarding his right to have counsel appointed on his behalf in connection with his interrogation; (2) on December 21, 2017, (a) he initially inquired about his right to counsel, but interrogating detectives responded to his inquiry in misleading and inappropriate ways, and (b) after he later clearly invoked his right to counsel, his interrogation continued; and (3) he was not promptly taken before a magistrate judge of this court for arraignment during the time of his interrogation. As noted above, defendant Castro seeks an evidentiary hearing in connection with his motion to suppress. Below the court will summarize the facts surrounding defendant's claims, while noting where those facts are disputed. The court will then address the merits of the various aspects of defendant Castro's pending motion to suppress his statements.

A. Factual Background

The facts relevant to resolution of the pending motions are as follows.¹ XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 10.) DO Jacques took defendant Castro directly to Fresno County Sheriff Headquarters where they arrived at approximately 3:30 p.m.² (Id.)

1 These facts are derived from the parties' briefs (Doc. Nos. 119, 138, 154), the exhibits attached thereto; the sworn declarations of FBI Agent Ryan Demmon, HSI Agent Timothy Kotman, current HSI Agent and then-DO Monique Jacques, ICE DO Sellenia Romero, and FBI TFO Mark Diedrich (Doc. Nos. 138-6, 138-7, 138-8, 138-9, 138-10); and translated transcripts of defendant's interviews (Doc. No. 119 at Ex. 3). The court has also reviewed video recordings of each of the interrogations at issue in the instant motion. Defendant has not submitted any declarations in support of his motion to suppress his statements. The court will deny his motion to strike the declarations submitted by the government (Doc. No. 167) for the reasons discussed above.

2 The government points out in its briefing that the Notice to Appear incorrectly stated that DO Jacques read defendant Castro his administrative rights at the Fresno ERO Office, an acronym referring to ICE Headquarters in Fresno. (Doc. No. 154 at 10 (citing Doc. No. 119 at 48).) The government has clarified that DO Jacques actually took Castro directly to Fresno Sheriff Headquarters on December 19, 2017. (See Id. (citing Doc. No. 138-8 ¶ 4).)

It is disputed by the parties exactly what occurred next. Defendant Castro's counsel argues that DO Jacques provided Castro with a Notice to Appear, a notice of detention, and advised him of his administrative rights on December 19, 2017, at the time of his immigration arrest. (Doc. No. 119 at 4.) Defendant's counsel argues that DO Jacques informed Castro at that time that he may be represented by an attorney at no expense to the government in connection with his immigration proceedings. (Doc. No. 119 at 4-5.) In support of this assertion, however, defendant Castro submits only one piece of evidence: a Notice to Appear and a Notice of Custody Determination, from which the signatures of defendant Castro are absent and in which certificates of service by the serving deportation officers are blank and unsigned.³ (Id. at 41-45.)

3 Defendant Castro has also submitted an excerpt of a video recording showing DO Jacques exiting the Fresno County Sheriff's Office interview room on December 19, 2017 as Detective Maldonado and Detective Mora enter. (Castro's Lodged Ex. 2.) Nothing depicted in this video establishes, or even suggests for that matter, that DO Jacques informed defendant Castro of his right to be represented by counsel at no expense to the government at that time. (See generally id.)

In contrast, the government contends that DO Jacques did not advise defendant Castro at the time of his immigration arrest on December 19, 2017, of his immigration-related right to an attorney and, as a result, Castro was not informed at that time that he was not entitled to a free attorney with respect to immigration matters. (Doc. Nos. 154 at 11-13; 173 at 3.) Specifically, in her declaration DO Jacques states under penalty of perjury as follows:

2. On December 19, 2017, HSI Special Agent Timothy Kotman and I were conducting surveillance at an apartment complex in Mendota, California, where Marcos Castro was believed to reside. The purpose of the surveillance was so we could locate Castro and take him into custody for being illegally present in the United States.

3. At approximately 2:40 p.m., I saw an individual matching Castro's description approaching the door of his apartment. SA

Kotman and I approached the individual, later identified as Castro, and asked to speak with him. I identified myself as an immigration officer and asked Castro questions regarding his immigration status. Castro said that he did not have valid documents, that he was in the United States illegally, and that he had entered the United States illegally and was a citizen of El Salvador. SA Kotman and I then took him into custody. We took Castro directly to Fresno County Sheriff's Office located in downtown Fresno so he could be interviewed by homicide detectives.

4. We arrived at the Fresno County Sheriff's Office at approximately 3:30 p.m. and placed Castro in an interview room. While we were waiting for the detectives to arrive, I provided Castro with a summary of his administrative rights, as discussed in further detail below. In Form I-213, I incorrectly stated that I notified Castro of his administrative rights “[w]hile at the Fresno ERO office.”

5. I did not read Castro his rights off of Form I-826, entitled “Aviso de Derechos y Notificaciones.” See Castro Ex. 1, p. 5. I did not have Form I-826 (“Aviso de Derechos y Notificaciones”) with me when I arrested Castro. If I had read Form I-826 (“Aviso de Derechos y Notificaciones”) to Castro, I would have instructed him to initial, sign, and date the form, and I would have also signed and dated the form as well. As such, I am positive that I did not read this form to him, because neither Castro nor I signed Form I-826 on December 19, 2017.

6. I did not read Form I-862, the “Notice to Appear, ” to Castro either or serve him with a copy of this form. See Castro Ex. 1, pp. 1-2. I did not have Form I-862 (“Notice to Appear”) with me when I arrested Castro. If I had read Form I-862 (“Notice to Appear”) to Castro, I would have instructed him to initial, sign, and date the form, and I would have also signed and dated the form as well. As such, I am positive that I did not read this form to him, because neither Castro nor I signed Form I-862 on December 19, 2017.

7. The blank forms that Castro filed as Exhibit 1 to his Motion are from Castro's Alien file, or “A File.” When deportation officers prepare to arrest a suspected illegal alien, it is common for us to prepare the documents for the A File prior to arrest in order to generate an Alien Number (commonly referred to as an “A number”) for the suspected illegal alien and so the documents are ready to serve on the suspected illegal alien upon his return to the ICE office. It is not my practice to bring any documents from the A File with me when I arrest suspected illegal aliens. In fact, in my ten years as a deportation has officer I was instructed to never bring the A File to the field with me.

8. Rather, I typically only bring a field interview card, which is a form that contains spaces to collect biographical information from the suspected illegal alien. Exhibit 1, page 11, to Castro's Motion, which I have reviewed, is a true and correct copy of the field interview card that I had with me and filled in based on information Castro gave me while we were waiting for detectives at the Fresno County Sheriff's Office.

9. The rest of the fomis from the A-File-including Form 1-826 ("Aviso de Derechos y Notificaciones") and Fomi 1-862 ("Notice to Appear")-remain at the ICE office to serve on the alien when he is fingerprinted and booked into the ICE system at the office. I planned to seive these fomis on Castro on December 19, 2017, when we returned to the ICE office.

10. Accordingly, when I wrote in the narrative section of Foiin I-213 that I advised Castro of his "adnhnistrative rights," I did not mean that I read Castro Form 1-826 ("Aviso de Derechos y Notificaciones") or Foiin 1-862 ("Notice to Appear"). What I meant was that I gave Castro a summary of his options in immigration proceedings. I do not recall what, precisely, I said to Castro about his options. However, I likely told him what I tell all suspected illegal aliens who have not been previously ordered deported when I arrest them in the field: that he was not going to get deported that day, that he could see an immigration judge if he wished, that he could speak with his consulate, and that we would explain his full rights to him when we took him to ICE headquarters.

11. While in the field, it is not my normal practice to advise detainees regarding their right to an immigration attorney unless asked. I do not recall whether Castro asked me about his right to an attorney. Nor do I recall whether I advised Castro of this right. However, if a detainee asks me about then right to an attorney while I am hi the field, I tell them that I will give them a list of free legal seivices. Detainees often state that they are unable to pay for an attorney. Whenever a detainee states this to me, I tell them that they will be provided with a list of free legal seivices. I never state that they will have to pay for an attorney on then own.

(Doc. No. 138-8 at 1-3.)⁴

4 The government asserts that DO Jacques's statements are corroborated by the fact that the 1-826 form was left blank (Doc. No. 154 at 12 n.3), whereas defendant Castro's counsel argues that the mere existence of the fomi strongly suggest that DO Jacques read the administrative advisements to Castro at the time of his arrest on December 19, 2017 (Doc. No. 119 at 4, 42).

The government asserts that at the time of defendant Castro's arrest. Special Agent Kotman and DO Jacques were unaware that he had personally participated in a kidnapping the night before which eventually resulted in the charges in this case behig brought against him. (Doc. Nos. 138 at ¶ 10 (citing Doc. No. 138-7 ¶ 6).)XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

At 4:11 p.m. on December 19, 2017, approximately 90 minutes after defendant Castro's immigration arrest, Detective Adam Maldonado and Detective Jose Mora began questioning him at the Fresno County Sheriff's Office. (See Doc. Nos. 119 at 5, 56; 154 at 14.) The detectives first asked Castro a number of background questions such as his name, age, address and covered other preliminary matters, which defendant estimates may have gone on for thirty minutes but covers only 24 pages of a double-spaced transcript. (Doc. Nos. 119 at 56-80.) Defendant Castro was then informed of his Miranda rights by the detectives and answered affirmatively when asked if he understood each aspect of that advisement.⁵ (Doc. No. 119 at 80-81.) That first interview of defendant Castro lasted approximately 5.5 hours with a short meal break.⁶ (Doc. Nos. 119 at 7 n.3; 154 at 14.) At midnight on December 20, 2017, defendant Castro was arrested by the detectives on state kidnapping and gang related charges. (Doc. Nos. 119 at 12; 138-1 at 2; 138-2 at 1-2; 138-3 at 2; 154 at 14.) A sheriff's deputy transported defendant Castro to the Fresno County Jail and booked him at 3:46 a.m. (Doc. No. 154 at 14 (citing Doc. Nos. 138-2 at 5; 138-3 at 2).)

5 Q: “You have the right to have an attorney before and during any questioning. Do you understand?” A: “Yes.” Q: “Okay. If you cannot afford an attorney, one will be given to you free of charge before you are asked any question. Do you understand?” A: “Hm.” Q: “Yes or no?” A: “Yes.” Q: “Okay. Is it okay if we talk?” A: “Yes.” (Doc. No. 119 at 6, 81.)

6 The interview was conducted from 4:11 p.m. to 9:24 p.m. and commenced again at 11:20 p.m. and continued until 11:53 p.m. with FBI Agent Demmon present for the last part of the questioning.

On Thursday, December 21, 2017, around 4:00 p.m., Detective Mora and Detective Maldonado interviewed defendant Castro again at the Fresno County Sheriff's Office. (Doc. Nos. 119 at 341; 154 at 14.) Detective Maldonado read defendant Castro his Miranda rights once again at that time as follows:

Q: Ah, you have the right to remain silent. Understand?

A: Mm-hm.

Q: Yes or no?

A: Yes.

Q: Ah, anything you say can be used against you in a court. Understand?

A: Yes.

Q: Ah, you have the right to have an attorney before and during any questioning. Understand?

A: Yes.

Q: Ah, if you cannot afford to pay an attorney one will be provided to you at no cost even before you are asked any questions. Understand?

A: Yes.

Q: Okay. Is it okay if I show you these photos?

A: Yeah.

Q: Yeah? Okay.

A: But that about the lawyer how...?

Q: How?

A: That that you say about the attorney.

Q: Oh, that just means that if you would like - if you prefer to have an attorney here before we talk. . .

A: Hm.

Q: . . .that's your right. But like I tell you, we're just going to show you some photos.

A: Okay.

Q: Okay. Is that okay? We can …

A: Yes.

Q: … we can do that? Okay.

A: (unintelligible)

(Doc. No. 119 at 341-43.) The detectives then proceeded to show defendant Castro photographs and asked him questions regarding the individuals depicted in those photos. (Id. at 343-47.) Defendant Castro later asked the detectives “how long am I going to be here? . . . Because I don't have money to pay for an attorney.” (Id. at 349.) Detective Maldonado responded, “No, if - if you don't - there it says that they give you one at no cost.” (Id.) Defendant Castro then responded, “Ah, well then I want one.” (Id.) Detective Maldonado stated “Yes, they're going to give one to you. Already - already before you go to court they're going to give you, eh, an attorney.” (Id. at 350.) This December 21, 2017 interview of defendant Castro by the detectives lasted approximately 30 minutes. (See Doc. No. 154 at 16.)

After the December 21, 2017 interview, defendant Castro was released from Fresno County Jail at 5:39 p.m. because no formal criminal charges were filed against him as of that time.7 (Doc. Nos. 138-10 ¶ 3; 154 at 16). After he was released from jail, immigration officials arrested him and brought him-for the first time-to ICE headquarters in Fresno, where he was booked into ICE custody at 6:02 p.m. (Doc. Nos. 138-4 at 2; 138-5 at 2-3.) The government contends that it was then, on the night of December 21, 2017-after the first two interrogations of defendant Castro and after his arrest by immigration officers -, when ICE DO Sellenia Romero read defendant Castro his immigration advisements including his right to counsel at no cost to the government for the first time. (Doc. No. 154 at 17-18 (citing Doc. No. 138-9 ¶¶ 4-5).) The government argues that this fact is confirmed by: 1) DO Romero's signed and dated proof of service form indicating that she personally served the Advisements of Rights form (I-826) and a Notice to Appear (I-862) on December 21, 2017, both of which advised defendant Castro of his rights in immigration proceedings; and 2) defendant Castro initialed, dated, and fingerprinted the I-826 and I-862 forms-unlike the blank, unsigned forms from December 19, 2017. (Doc. No. 154 at 17 (citing Doc. No. 119 at 440-42).)

On December 22, 2017, at approximately 1:30 a.m., ICE officials attempted to place defendant Castro in an immigration facility in Bakersfield. (Doc. No. 138-5 at 2-3.) However, because that facility was at maximum capacity, he could not be held there. (Id.) Defendant Castro was then taken to what is apparently an ICE “hold room” in Fresno. (Id. at 2-3.) On December 22, 2017, at 1:54 p.m., he was finally moved to an immigration detention center in Sacramento. (Doc. Nos. 119 at 52, 444; 154 at 18; 138-5 at 2-3.)

On Friday, December 22, 2017, at approximately 5:00 p.m., FBI Agent Demmon presented United States Magistrate Judge Barbara A. McAuliffe a federal criminal complaint and the affidavit in support thereof, charging defendant Castro with kidnapping and murder in aid of racketeering, and conspiracy to kidnap and murder in aid of racketeering. (Doc. No. 119 at 446.) Magistrate Judge McAuliffe signed both. Later that evening at approximately 10:30 p.m., HSI Agent Kotman transported Castro from the Sacramento immigration facility to the Fresno County Jail where he was held on the then recently filed federal criminal charges. (Doc. No. 138-7 ¶ 8.) On December 26, 2017, at 5:52 a.m., officers returned to question defendant Castro yet again at the Fresno County Sheriff's Office. (Doc. No. 119 at 354-434.) Defendant Castro was thereafter transported to the federal courthouse in Fresno and made his initial appearance in this action for arraignment on the criminal complaint on the afternoon of December 26, 2017. (Doc. No. 8.)

B. Suppression Sought on the Basis of the Decision in United States v. San Juan-Cruz

Defendant Castro first moves to suppress all of his interrogation statements on the grounds that they were obtained in violation of the holding in United States v. San Juan-Cruz, 314 F.3d 384 (9th Cir. 2002), because he received confusing and conflicting immigration and Miranda advisements regarding his right to counsel upon first being taken into custody on December 19, 2017. That argument fails, however, because as explained below, there is no factual or evidentiary support for it.

As noted, one aspect of a proper Miranda warning is the advisement of one's right to have an attorney present prior to any questioning and that, if one cannot afford an attorney for that purpose, one will be appointed for them prior to any questioning. Miranda, 384 U.S. at 479.⁸ In San Juan-Cruz the defendant argued that he had been taken into custody by a Border Patrol Agent who first read him his immigration administrative rights including his right to have an attorney present during questioning but “not at the Government's expense” and then was advised of his Miranda rights including that if he wished to have an attorney present and could not afford one, one would be appointed for him. 844 F.3d at 387-88. In the context of that factual background, the Ninth Circuit stated:

8 In his pending motion defendant Castro does not directly challenge the content of any of the Miranda advisements given to him by detectives on any ground other than that those advisements were confusing based upon his allegation that he had received the administrative immigration advisement on December 19, 2017 prior to the Miranda advisement. More specifically, defendant Castro has not asserted that the Miranda advisement given to him by detectives was, on its face, flawed. (Doc. No. 119 at 80-81.) Defendant Castro does separately make arguments about whether he invoked the right to counsel and whether investigating officers responded properly to his inquiries about that right. (See Doc. Nos. 119 at 11-12, 164 at 4-5.)

San Juan argues that these two sets of conflicting instructions were read to him one after another and, as a result, their meaning became unclear. We agree.

When one is told clearly that he or she does not have the right to a lawyer free of cost and then subsequently advised, “[i]f you can't afford a lawyer, one will be appointed for you, ” it is confusing. Requiring someone to sort out such confusion is an unfair burden to impose on an individual already placed in a position that is inherently stressful. See Miranda, 384 U.S. at 436 (“the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals.”); 457 (recognizing that an atmosphere of custodial interrogation “carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity.”); Dickerson v. United States, 530 U.S. 428 (2000) (“custodial police interrogation, by its very nature, isolates and pressures the individual ...”).

The totality of the circumstances in this case compels us to find that the warnings given to San Juan were indeed confusing. From San Juan's perspective, it was entirely unclear what the nature of his rights was under the Fifth Amendment. Specifically, San Juan could not reasonably ascertain from the warnings provided to him by the Government whether he could or could not retain the services of an attorney for free.

In order to be valid, a Miranda warning must convey clearly to the arrested party that he or she possesses the right to have an attorney present prior to and during questioning. See Connell, 869 F.2d at 1353. The warning also must make clear that if the arrested party would like to retain an attorney but cannot afford one, the Government is obligated to appoint an attorney for free. Id.

* * *

When a warning, not consistent with Miranda, is given prior to, after, or simultaneously with a Miranda warning, the risk of confusion is substantial, such that the onus is on the Government to clarify to the arrested party the nature of his or her rights under the Fifth Amendment. The Government should not presume after having read two sets of contradictory warnings to an individual that he or she possesses sufficient legal or constitutional expertise to understand what are his or her rights under the Constitution. See Miranda, 384 U.S. at 472 (“No amount of circumstantial evidence that the person may have been aware of this right will suffice . . . . Only through such

a warning is there ascertainable assurance that the accused was aware of this right.”).

Id. at 388-89.⁹

9 The Ninth Circuit noted that a discrepancy in the record as to how much time elapsed between the immigration and Miranda advisements was not dispositive under the circumstances in that case. San Juan-Cruz, 314 F.3d at 389. “More important than the timing of the Government's warnings is whether the substance, content, and clarity of the warnings conveyed to [defendant] his rights under Miranda, ” and upon consideration of the totality of circumstances, the Ninth Circuit concluded that the warnings given in that case did not clearly convey to the defendant the right to free counsel. Id. at 388-89.

Defendant Castro's motion to suppress all of his interrogation statements under the decision in San Juan-Cruz is based entirely on his counsel's assertion that the defendant was advised of his administrative immigration rights (including the advisement in that context of the right to have counsel present at no expense to the government) by DO Jacques on December 19, 2017, approximately 1.5 to 2 hours before he was Mirandized by Fresno County Sheriff's Department detectives. (See Doc. No. 119 at 5.) In support of this argument, defendant Castro submits as evidence only his Exhibit 1, a Notice to Appear, Warrant, Notice of Custody Determination and Record of Deportable Alien (I-213), dated December 19, 2017. (Id. at 40-52.) In the Record of Deportable Alien (I-213) portion of that exhibit DO Jacques did write that on that date “Castro was notified of his administrative rights.” (Id. at 48.) However, as noted above, nowhere on the forms making up Exhibit 1 where the signature of the alien is called for does defendant Castro's signature appear. (Id. at 42, 43, 44, 45, 52.) Nor are any of the certificates of service signed by a deportation officer so as to indicate that defendant Castro was served with the notices on December 19, 2017. (Id.) Most importantly, DO Jacques has submitted a sworn declaration attesting that she “is positive” she did not read defendant Castro his immigration administrative advisements on December 19, 2017, because she would have had him sign, initial, and date the forms on that date if she had. (Doc. No. 138-8 ¶¶ 5-6.)¹⁰ It is undisputed that defendant Castro was not released from Fresno County Jail and brought for the first time to ICE headquarters in Fresno for booking until February 21, 2019 at 6:02 p.m.. (Doc. Nos. 138-4 at 2; 138-5 at 2-3.) It was then that ICE DO Romero read defendant Castro his immigration advisements as evidenced by I-826 and I-862 forms initialed, dated, and fingerprinted by defendant Castro on that date. (Doc. No. 154 at 17 (citing Doc. No. 119 at 440-42).)

10 The other relevant portions of that declaration are set forth in their entirety above. In short, DO Jacques has explained in detail the actual sequence of events in this case and clarified any ambiguities posed by defendant's Exhibit 1. (Doc. No. 138-8.)

There is simply no evidence then that DO Jacques read defendant Castro his immigration administrative advisements on December 19, 2017, including the potentially confusing advisement of his right to counsel without cost to the government. Rather, the uncontroverted evidence before the court establishes that defendant Castro was not read his immigration administrative advisements until the evening of December 21, 2017, when he was first booked into ICE custody. (Id. at 436-43; Doc. Nos. 138-5 at 2-3; 138-9 ¶¶ 3-5.) Thus, approximately two days passed after defendant was first read his Miranda rights by detectives on December 19, 2017, waived those rights and voluntarily agreed to be interviewed by detectives, before he received his immigration administrative advisements from DO Romero. (Doc. Nos. 119 at 56, 80-81, 436-43; 138-5 at 2-3; 138-9 ¶¶ 3-5.) Moreover, the second interview of defendant Castro by detectives occurred on December 21, 2017 at least 1.5 hours before he was taken into ICE custody and advised of his administrative rights by DO Romero. (See Doc. No. 138-5 at 2-3; see also Doc. Nos. 119 at 341; 154 at 14, 16.) Given this sequence of events (Miranda advisement, waiver of rights and interrogation, followed by later administrative advisement) there is no credible claim that defendant Castro was confused by the advisements regarding his right to have counsel appointed on his behalf and present for his interrogation by the detectives. As such, defendant Castro's motion to suppress his interrogation statements on the grounds that he received confusing and misleading advisements regarding his right to counsel as prohibited by the Ninth Circuit in San Juan-Cruz (Doc. No. 119 at 7 (citing id. at 436-41)), will be denied.¹¹

11 The court also notes that unlike the situation confronted by the Ninth Circuit in San Juan-Cruz, defendant Castro does not contend that the Miranda and immigration advisements were confusing because they were read to him by the same agent. Rather, here, Fresno County Sheriff's Department Homicide Detective Maldonado read defendant Castro his Miranda rights on December 19, 2017 at the county jail (Doc. No. 119 at 56, 80) and DO Romero on December 21, 2017, served Castro at ICE offices with the forms including the immigration advisements and the respective advisements. (Doc. Nos. 119 at 436-43; 138-9.) See San Juan-Cruz, 314 F.3d at 387- 88; United States v. De La Cruz, 835 F.3d 1, 7-9 (1st Cir. 2016) (affirming the denial of motion to suppress where the appellant received Miranda warnings and confessed before being given administrative warnings, different officials administered different warnings, agents explained the difference between criminal investigators and ICE, and spatial and temporal gaps existed between warnings); United States v. Pereda-Rebollo, 357 Fed.Appx. 31, 33 (9th Cir. 2009) (rejecting a defendant's argument that his postMiranda statements should have been suppressed on the grounds that the advisements received were contradictory and inconsistent, reasoning that the “record shows [defendant] was fully informed of his right to counsel before and during questioning, and that he knowingly and voluntarily waived that right.”); United States v. Long-Payton, No. 3:08-cr-07, 2013 WL 1500682, at *5 (W.D. Pa. April 10, 2013) (distinguishing San Juan-Cruz where the two inconsistent warnings were given by two different individuals at different locations and defendant was never informed she had a right to an attorney only at her own expense). But see United States v. Ramirez-Carrillo, 759 Fed.Appx. 612, 613 (9th Cir. 2019) (reversing the district court's denial of motion to suppress where the same border patrol agent read defendant “two sets of rights that conflicted on the issue whether the attorney's services were to be paid by the Government, ” attempted to explain that administrative rights no longer applied, and the agent never clarified defendant's right to an attorney free of charge). Finally, the record here reflects that on December 19, 2017, defendant Castro was clearly aware that there was a difference between ICE and the Sheriff's Department detectives. (See, e.g., Doc. No. 119 at 113 (A: “. . . I prefer to talk to the ones I was talking to (at first) . . . . With the other officers.” Q: “[W]hy's that?” A: “Well, I don't know. I have trust in them.” Q: “. . . we work with them too, sometimes.”).)

C. Motion to Suppress Statements Based on Unlawful Responses to Inquiries Regarding Right to Counsel and Continued Interrogation After Invocation of Right to Counsel

Defendant Castro also moves to suppress statements he made to Detectives Maldonado and Mora on December 21, 2017 when they interrogated him for the second¹² time, as well as subsequent statements he made on December 26, 2017 during a third interrogation. (Doc. No. 119 at 9-12.) Defendant Castro contends that he brought up his right to counsel twice on December 21, 2017: (1) first, early in that interrogation session, he claims to have inquired about the right to counsel; (2) then later during that interrogation he claims to have invoked his right to counsel “unequivocally.” (See id. at 11-12.) Defendant Castro argued in his opening brief on the pending motion that Detective Maldonado acted unlawfully when responding to his initial inquiry about counsel by making statements that “blurred his entitlement” to counsel, and that therefore his subsequent statements should be suppressed. (Id.) Defendant Castro clarified this argument in his reply brief, explaining that even if his initial inquiry about counsel was too ambiguous to immediately trigger a cessation of questioning, the investigating officers were: (1) obligated to clarify his intent in inquiring regarding that subject; and (2) precluded from making misleading comments in response to his ambiguous inquiries about his right to counsel. (Doc. No. 164 at 4.) With respect to the later, “unequivocal” invocation, defendant Castro contends all of his subsequent statements should be suppressed. (Doc. No. 119 at 11.)

12 As noted, Detectives Maldonado and Mora met two days earlier with defendant Castro, on December 19, 2017, at which time Castro was read his Miranda rights, waived them, and answered the detectives' questions for more than five hours. (See supra at 10 n.5.) In its request for supplemental briefing, the court inquired as to whether the waiver obtained on December 19 could operate as a waiver for purposes of defendant Castro's questioning on December 21. (Doc. No. 185 at 3.) At the February 26, 2021 hearing, the government specifically disclaimed that it was asserting any such argument. (See Doc. Nos. 194 at 8 n.5, 198.)

1. Inquiry About Counsel

The court will first evaluate the exchange about the right to counsel that took place when Detectives Maldonado and Mora began questioning defendant Castro on December 21, 2017. Detective Maldonado read defendant Castro his Miranda rights again at that time, eventually turning to the right to counsel:

Q: Ah, you have the right to have an attorney before and during any questioning. Understand?

A: Yes.

Q: Ah, if you cannot afford to pay an attorney one will be provided to you at no cost even before you are asked any questions. Understand?

A: Yes.

Q: Okay. Is it okay if I show you these photos?

A: Yeah.

Q: Yeah? Okay.

A: But that about the lawyer how...?

Q: How?

A: That that you say about the attorney.

Q: Oh, that just means that if you would like - if you prefer to have an attorney here before we talk. . .

A: Hm.

Q: . . .that's your right. But like I tell you, we're just going to show you some photos.

A: Okay.

Q: Okay. Is that okay? We can …

A: Yes.

Q: … we can do that? Okay.

A: (unintelligible)

(Doc. No. 119 at 341-43.) The detectives proceeded to show defendant Castro photos and ask him questions regarding the individuals depicted in those photos. (Id. at 343-47.)

A threshold question is whether defendant Castro invoked his right to counsel in the above exchange. “If the [defendant] states that he wants an attorney, the interrogation must cease until an attorney is present.” Miranda, 384 U.S. at 445. “[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Edwards v. Arizona, 451 U.S. 477, 484 (1981). “[T]he right to counsel could be invoked only ‘unambiguously.'” Jones v. Harrington, 829 F.3d 1128, 1137 (9th Cir. 2016) (citing Berghuis v. Thompkins, 560 U.S. 370, 381 (2010)). However, the Ninth Circuit has explained:

[T]he Court also held that the standard for invoking the right to counsel unambiguously was not a demanding one. A suspect need only invoke his rights “sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be [such] a request.” He need not specifically reference his constitutional rights, nor need he use any specific terminology.

Jones, 829 F.3d at 1138 (citing Davis v. United States, 512 U.S. 452, 459 (1994)). But “if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, [the Supreme Court's] precedents do not require the cessation of questioning.” Davis, 512 U.S. at 459 (holding that the statement “Maybe I should talk to a lawyer” was not a request for counsel) (emphasis added). “If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect.” Davis, 512 U.S. at 459 (citing Moran, 475 U.S. at 433 n.4).

Although awkwardly phrased, perhaps because of the translation, defendant Castro appears to have been asking Detectives Maldonado and Mora on December 21, 2019: “How can I get a lawyer?” The government argues that this was not a clear and unambiguous invocation of his right to counsel. (Doc. No. 154 at 25 (citing Doc. No. 119 at 349).) Defendant Castro does not seriously contend otherwise, seeming to concede that his statement was ambiguous. (See Doc. No. 164 at 4.) The undersigned agrees with the government on this point. Under the Davis standard, a suspect's inquiry about “how to obtain an attorney does not constitute an unambiguous assertion of his right.” Soffar v. Cockrell, 300 F.3d 588, 595 (5th Cir. 2002) (finding that defendant who specifically asked how he could get a court appointed attorney did not unambiguously request counsel); United States v. Tian Xue, No. CR 16-22-4, 2018 WL 3328165, at *6-8 (E.D. Pa. July 6, 2018) (finding that a defendant who asked “[h]ow can find a lawyer?” was not unambiguously requesting the assistance of counsel); see also Lord v. Duckworth, 29 F.3d 1216, 1220-21 (7th Cir. 1994) (finding the statement, “I can't afford a lawyer but is there any way I can get one?” was not a clear request); but see United States v. Naik, No. 19-CR-373 (TSC), 2020 WL 531992, at *6-7 (D.D.C. Feb. 3, 2020) (finding that defendant who asked “how can I get a lawyer?” was unambiguously requesting counsel and that the investigator subsequently undermined and contradicted the administration of defendant's Miranda rights by implying that the defendant did not have the right to appointed counsel free of charge). In light of the above authorities, the court concludes that in stating “But that about the lawyer how...?” and “that you say about the attorney” defendant Castro did not unambiguously invoke his right to counsel.

The inquiry may not end there, however. In 2008, the Ninth Circuit held that the “clear statement” rule of Davis “applies only after the police have already obtained an unambiguous and unequivocal waiver of Miranda rights” and that “[p]rior to obtaining such a waiver . . . an officer must clarify the meaning of an ambiguous or equivocal response to the Miranda warning before proceeding with general interrogation.” United States v. Rodriguez, 518 F.3d 1072, 1074, 1080 (9th Cir. 2008). Under such circumstances, the government continues to bear its “heavy burden” of proving an initial knowing and intelligent waiver of Miranda. Id.

Rodriguez concerned a suspect who had been arrested for a weapons violation. Id. at 1074. The arresting officer read Rodriguez his Miranda rights in the field and then specifically asked him if he wished to speak with law enforcement. Id. at 1075-76. Rodriguez responded: “I'm good for tonight.” Id. at 1075. The arresting officer later testified that he understood this to mean that Rodriguez was willing to talk, but he did not immediately begin the interrogation; rather he began questioning Rodriguez a “short time later, ” eventually eliciting a confession. Id. The Ninth Circuit found the phrase “I'm good for tonight” to be ambiguous as to whether or not Rodriguez was invoking his right to silence. Id. at 1077. This triggered the announcement of the above mentioned “clarification rule.” Id. at 1080. “[B]ecause his interrogator failed to clarify Rodriguez's wishes with respect to his Miranda warnings” the defendant's statements were suppressed. Id. at 1081.

In reaching this conclusion, the Ninth Circuit discussed in some detail the distinction between so-called “initial waiver cases” to which the “clarification rule” applied, and “post-waiver” cases, to which the Davis “clear statement” rule applied. Id. at 1078-79.

The holding of Davis, however, addressed itself narrowly to the facts of the case: “We therefore hold that, after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.” Id. at 461 (emphasis added). The text of the opinion is also narrowly drawn: it asks whether “further questioning” is permitted upon an equivocal or ambiguous invocation of the right to counsel, id. at 454, 458 (emphasis added), or, rather, whether questioning must “cease, ” id. at 456, 459, 460 (“cessation”), 461, 462, or “stop, ” id. at 459, 462-all implying that legal questioning, following a valid initial Miranda waiver, was already occurring. Indeed, prior compliance with Miranda is critical to the logic of the Supreme Court's holding:

[T]he primary protection afforded suspects subject to custodial interrogation is the Miranda warnings themselves. “[F]ull comprehension of the rights to remain silent and request an attorney [is] sufficient to dispel whatever coercion is inherent in the interrogation process.” A suspect who knowingly and voluntarily waives his right to counsel after having that right explained to him has indicated his willingness to deal with the police unassisted. Although Edwards provides an additional protection-if a suspect subsequently requests an attorney, questioning must cease- it is one that must be affirmatively invoked by the suspect.

Id. at 460-61 (citations omitted, emphasis added).

In other words, the “clear statement” rule of Davis addresses only the scope of invocations of Miranda rights in a post-waiver context. It is well settled that “[i]nvocation and waiver [of Miranda rights] are entirely distinct inquiries, and the two must not be blurred by merging them together.” Smith v. Illinois, 469 U.S. 91, 98 (1984). Davis addressed what the suspect must do to restore his Miranda rights after having already knowingly and voluntarily waived them. It did not address what the police must obtain, in the initial waiver context, to begin questioning.

The existence of a prior waiver explains how Davis can be reconciled with the Supreme Court's historic presumption against finding waiver of constitutional rights. Miranda itself, in describing the government's burden to prove waiver as “heavy, ” stated that “[t]his Court has always set high standards of proof for the waiver of constitutional rights, and we reassert these standards as applied to in custody interrogation.” 384 U.S. at 475 (citation omitted). Prior to the Miranda warning and waiver, the police have no right to question the suspect. Id. at 471 (describing the warning as “an absolute prerequisite to interrogation”). Once that “heavy burden” has been met, however, Davis indicated that the benefits of Miranda have been realized: the suspect has understood his rights and has freely chosen to proceed. It is then the police's right to interrogate the suspect, and the suspect, in effect, who bears the “burden” of cutting off questioning by unambiguously retracting the clear waiver he has already given.

Rodriguez, 518 F.3d at 1078-79.

There is debate over whether or not Rodriguez is still good law in light of more recent Supreme Court decisions, including the 2010 decision in Berghuis, 560 U.S. at 382. Berghuis involved a murder suspect (Thompkins) who was given Miranda warnings but refused to sign a Miranda waiver form. Id. at 374-75. The record was unclear as to whether any officer verbally confirmed that Thompkins understood the rights listed on the form. Id. at 375. Thereafter, Thompkins sat largely in silence during a three-hour interrogation, occasionally offering one- word or one-phrase answers to questions, including, almost three hours into the interrogation, some incriminating one-word answers. Id. at 375-76. Thompkins argued that he had invoked his right to remain silent by not saying anything for a significant period of time, thereby triggering a duty on the part of the investigators to cease questioning him. Id. at 380-81. The Supreme Court disagreed, holding for the first time that Davis' clear statement rule applied not only to the right to counsel but also the right to remain silent. Id. at 381.

Some courts have suggested that Berghuis effectively overruled Rodriguez. In United States v. Little, No. CR 20-1258 KG, 2020 WL 4923670, at *5 (D.N.M. Aug. 21, 2020), for example, the district court pointed out that Berghuis held “[t]he Miranda rule and its requirements are met if a suspect receives adequate Miranda warnings, understands them, and has an opportunity to invoke the rights before giving any answers or admissions.” This language suggests that there should be no distinction drawn between the initial and post-waiver contexts with respect to any obligation on the part of police to cease questioning or clarify the meaning of the defendant's statement. See Berghuis, 560 U.S. at 388-89 (“In sum, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police”); see also United States v. Robeson, 2016 WL 3257595, at *4 (N.D. Cal. June 14, 2016) (“I agree with the government that Berghuis is ‘clearly irreconcilable' with the clarification rule.”). But, as the dissent in Berghuis pointed out, the majority in that decision failed to struggle with the distinction between initial versus post-waiver invocations of the right to counsel:

The suspect's equivocal reference to a lawyer in Davis occurred only after he had given express oral and written waivers of his rights. Davis ' holding is explicitly predicated on that fact. See 512 U.S., at 461 (“We therefore hold that, after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney”). The Court ignores this aspect of Davis, as well as the decisions of numerous federal and state courts declining to apply a clear-statement rule when a suspect has not previously given an express waiver of rights.

Berghuis, 560 U.S. at 407-08 (Sotomayor, J., dissenting) (omitting footnote citing Rodriguez, 518 F.3d at 1074)).

On the other hand, one district court in California has found that “the clarification rule survives Berghuis” in part because “[i]n Berghuis, the suspect made no ambiguous statement between being Mirandized and answering questions, and so the Supreme Court was not called upon to address the viability of the ‘clarification rule.' ” United States v. Hurtado, 21 F.Supp.3d 1036, 1041 (N.D. Cal. 2014) (declining to apply the clarification rule because the statement in question was not ambiguous). As the district court in Hurtado put it: “While a court looks to the totality of the circumstances in determining the voluntariness of a waiver, the Ninth Circuit has drawn, and has yet to erase, one bright line among those circumstances: when a defendant makes an ambiguous, unclarified response to an officer asking if he wishes to speak to police, that compels a conclusion that there has been no waiver.” Id; see also United States v. Eagle, No. CR 18-41-GF-BMM, 2018 WL 3996953 *2-*3 (D. Mont. Aug. 21, 2018) (applying Rodriguez's clarification rule post-Burghuis, albeit without discussing the potential overruling effect of Berghuis); United States v. Voris, No. CR-16-02267-001-TUC-JGZ(DTF), 2017 WL 11444152, at *2 (D. Ariz. Nov. 7, 2017) (finding post-Berghuis that “Law enforcement officers have a duty to clarify the meaning of a suspect's ambiguous or equivocal waiver of Miranda rights before proceeding with general interrogation” under Rodriguez, but without discussing the potential overruling of Rodriguez by Berghuis).

Here, the government suggests that this debate can be resolved by examining a Ninth Circuit opinion that post-dates Hurtado: Sessoms v. Grounds, 776 F.3d 615 (9th Cir. 2015) (en banc). (Doc. No. 194 at 3- 4.) In Sessoms, a defendant was arguably attempting to invoke the right to counsel during a pre-interrogation conversation with officers (i.e., a conversation that took place prior to any Miranda warnings)-the exact timeframe at issue in Rodriguez. See id. at 618-19. Sessoms sought habeas review of his California state court conviction under 28 U.S.C. § 2254. See id. at 618. The relevant facts in that case are as follows. When officers entered the interrogation area, they exchanged peasantries with Sessoms. Id. at 619. The defendant then asked: “There wouldn't be any possible way that I could have a-a lawyer present while we do this?” Id. The officers ignored this question. Id. Then Sessoms said: “Yeah, that's what my dad asked me to ask you guys . . . uh, give me a lawyer.” Id. Instead of ceasing all questioning, the officers carried on talking, making efforts to convince Sessoms that his accomplices had already told them what had happened and impressing upon Sessoms that the only way to tell his side of the story was for him to talk right away without an attorney. Id. Officers then read Sessoms his Miranda rights. Id. Thereafter, he agreed to talk and made incriminating statements. Id.

The California Court of Appeal found that Sessoms' statements regarding his desire for counsel were ambiguous under Davis. Id. at 620. On habeas review, the district court denied relief. Id. A three-judge panel of the Ninth Circuit agreed finding the state court had reasonably applied clearly established federal law, namely Davis. Id. However, on rehearing en banc the Ninth Circuit reversed, reasoning that Davis's requirement that a request for counsel be unambiguous applies only after a suspect has been informed of his Miranda rights. Id.¹³Alternatively, the majority also concluded that Sessoms had “clearly expresse[d] his desire for an attorney.” Id. at 620-21.

13 The en banc ruling explicitly relied upon Rodriguez in support of its conclusion that Davis only applied to statements made after a suspect had waived his Miranda rights. Sessoms v. Runnels, 691 F.3d 1054, 1061 (9th Cir. 2012) (citing Rodriguez, 518 F.3d at 1072), cert. granted, judgment vacated sub nom. Grounds v. Sessoms, 570 U.S. 928 (2013).

California petitioned for a writ of certiorari, arguing in part that Davis and Berghuis did not distinguish between pre-waiver and post-waiver invocations and therefore a suspect must unambiguously invoke his Miranda rights whether he does so before or after he waives those rights. Brief for Petitioner at 15-16, Grounds v. Sessoms, 570 U.S. 928 (2013) (No. 12-804), 2012 WL 6759749. The Supreme Court granted the state's petition for a writ of certiorari and then issued a one paragraph decision vacating the judgment and remanding the matter in light of its decision in Salinas v. Texas, 570 U.S. 178 (2013). Sessoms, 570 U.S. 928.

On remand, the Ninth Circuit began by explaining why it would assume Davis' clear invocation requirement would apply to Sessoms:

We now reconsider this case in light of Salinas, which suggests, contrary to the reasoning of the first en banc court, that Davis's requirement of an unambiguous invocation of a right to counsel applies to pre-Miranda statements. Although Salinas points in that direction, it involved a noncustodial interrogation. Salinas, 133 S.Ct. at 2183.

Indeed, Justice Alito's plurality opinion stressed that the noncustodial nature of the interview placed the “petitioner's situation outside the scope of Miranda.” Id. at 2180. This case, in contrast, involves a custodial interrogation in which the defendant should have been informed of his rights before he could knowingly waive them. See Miranda, 384 U.S. at 467-68. We nevertheless assume that the clear invocation requirement of Davis applies to Sessoms. With this requirement clearly in mind, we hold that, under the circumstances, a reasonable law enforcement officer would have understood Sessoms's statements as an unambiguous request for counsel, which should have cut off any further questioning under clear Supreme Court precedent.

Sessoms, 776 F.3d at 621 (emphasis added). The Ninth Circuit sitting en banc went on to find that the granting of federal habeas relief was appropriate in that case because the state court unreasonably applied clearly established Supreme Court precedent by failing to view Sessoms's comments in context and, ultimately, by failing to conclude that Sessoms' words amounted to a clear invocation of his right to counsel. 776 F.3d at 626-29.

For purposes of the instant motion, it appears that the Ninth Circuit indicated in its latest en banc decision in Sessoms that it interprets Salinas as “suggests[ing] . . . that Davis's requirement of an unambiguous invocation of a right to counsel applies to pre-Miranda statements.” Id. Any such suggestion would seem to run contrary to the holding in Rodriguez. While this aspect of the Ninth Circuit's decision in Sessoms was arguably dicta-because the Ninth Circuit separately found Sessoms' statements to be an unequivocal invocation of the right to counsel-Sessoms is the Ninth Circuit's only comment on the topic since the Supreme Court's decisions in Berghuis and Salinas. Reading all of these decisions together, the court concludes with some considerable trepidation that the clarification rule recognized by the Ninth Circuit in Rodriguez is no longer viable even though that court has not specifically recognized that the holding in Rodriguez has been abrogated .

Defendant Castro maintains that even if detective Maldonado was not under any obligation to seek clarification of defendant's inquiries about the right to counsel, he nonetheless acted unlawfully by attempting to mislead and/or divert defendant Castro away from the subject of counsel by indicating that he was “just going to show [the defendant] some photos.” (See Doc. No. 195 at 3-4.) Castro cites Henry v. Kernan, 177 F.3d 1152, 1158 (9th Cir. 1999), amended and superseded on other grounds, 197 F.3d 1021 (9th Cir. 1999), for the general proposition that an interrogator who distorts or misrepresents a defendant's Miranda rights can render any resulting statements coerced. (See Doc. No. 119 at 11.) In Henry, the defendant, after being advised of his rights, eventually confirmed that he wanted an attorney. 177 F.3d at 1156. Despite “clear and repeated invocations” of his Miranda rights, officers continued to question Henry. Id. Immediately after Henry's direct request for an attorney, officers asked him why he shot the victim. Id. Henry provided some incriminating responses but then asked whether he was “supposed to keep talking without an attorney.” Id. One of the officers interrupted Henry and stated: “Listen, what you tell us we can't use against you right now . . . We'd just would like to know.” Id. After that, the defendant gave a lengthy and detailed incriminating statement. Id. at 1157.

The Ninth Circuit reasoned that Henry's questioning was “psychologically coercive, ” the investigating detectives used “slippery and illegal tactics” to “overc[o]me Henry's will, ” and Henry “continued his confession only as a result of their deception, ” which was “deliberately designed to undermine Henry's ability to control the time at which the questioning occurred, the subjects discussed, and the duration of the interrogation.” Id. In particular, the detectives' “misleading comments were intended to convey the impression that anything said by the defendant would not be used against him for any purposes.” Id. “Because the police tactics and trickery produced a confession which was neither rational nor the product of an essentially free and unconstrained choice, ” the Ninth Circuit concluded that “Henry's post-Mirandized statements were involuntary, and therefore inadmissible for any purpose, ” including impeachment. Id. at 1158.

In United States v. Wysinger, 683 F.3d 784, 803 (7th Cir. 2012), the court addressed issues similar to those posed in Henry. There, the defendant was questioned by two investigators following his arrest. Id. at 789. When the investigators entered the interrogation room, defendant asked whether he needed a lawyer. Id. The agent stated, “Well, we're going to talk about that, ” thereby avoiding answering the question in the first of what the court found to be several attempts by the investigators to divert Wysinger's attention from asserting his rights. Id. at 789, 800-801. The investigator told the defendant he was under arrest, and began to read him his rights. Id. at 789. The agent stated: “You have a right to talk to a lawyer for advice before we ask any questions or have one-have an attorney with you during questioning. If you can't afford a lawyer, one will be appointed for you before we ask any questions. Do you understand . . .” Id. (emphasis added). The investigator then slapped the table loudly, startling Wysinger, and claimed he had felt something crawling on his neck. Id. According to the Seventh Circuit this operated to “further divert[]” Wysinger “from the question he had just asked regarding his need for a lawyer.” Id. at 801. Finally, one investigator stated: “I'm gonna tell you what the story is. You listen for a minute.” Id. The “story” referred to consisted of the agent telling Wysinger that investigators had been watching him from some time, and had collected evidence against him, his brother, and others. Id. The court found that this “provocative speech” was “undoubtedly” designed to elicit incriminating responses and also “implied that questioning had not yet begun.” Id. The agent also told Wysinger that “basically there are two choices here”-neither of which involved invoking his right to remain silent or his right to have counsel present. Id. at 801. Instead, the agent stated: “If you totally-if you didn't want to talk with us, down the road most likely you're going to be charged with conspiracy to distribute cocaine. Conspiracy is a tough charge.” Id. The agent then explained the alternative of cooperation.” Id. These tactics elicited various incriminating statements from Wysinger. Id. at 801-802. Thereafter, the agent stated that the “questioning” was then about to begin, by, among other things, flipping open his notebook and taking out his pen. Id. at 802. This finally triggered Wysinger to clearly invoke his right to counsel. Id.

Wysinger moved to suppress his statements, arguing in part that he was provided inadequate and misleading Miranda warnings. Id. at 786. He contended that the wording implied that his rights were conditioned on the beginning of questioning and that the agents implied questioning had not yet begun. Id. at 800. The Seventh Circuit agreed, holding that the agent misstated the Miranda warnings when he told the defendant he could speak with an attorney before or during questioning rather than both before and during questioning. Id. at 798. The court reasoned that “[t]he agent's divergence from the familiar script would put a suspect to a false choice between talking to a lawyer before questioning or having a lawyer present during questioning, when Miranda clearly requires that a suspect be advised that he has the right to an attorney both before and during questioning.” Id. at 799. The court also found that the language used by the had the potential to “cause a serious misunderstanding of one of the core Miranda rights.” Id. at 800 (citation omitted); see also California v. Prysock, 453 U.S. 355, 360 (1981) (reasoning that linking the right to counsel to some future event after interrogation does not fully advise the suspect of the right to counsel). In Wysinger, the mis-advisement was found to be compounded by the fact that the agents used “various tactics to confuse Wysinger” regarding the start of questioning and to divert him from exercising his rights. 683 F.3d at 803. Accordingly, the Seventh Circuit concluded that the incorrect warnings paired with the agent's tactics to confuse the defendant rendered the warning inadequate and misleading and therefore the entire interrogation was inadmissible. Id.

Wysinger and Henry stand for the general proposition that “diversionary tactics, ” such as implying that questioning had not yet begun, can play a role in depriving a defendant of the “‘knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.'” Missouri v. Seibert, 542 U.S. 600, 614, (2004) (Kennedy, J., concurring in the judgment) (quoting Moran, 475 U.S. at 424). But, in both of those cases, the diversionary tactics were used within a broader context of other problems with the interrogations that compounded the defendant's confusion. In Henry, the diversionary tactic employed-falsely indicating that any statements Henry made could not be used against him-was coupled with the fact that detectives continued to question Henry even though he had requested an attorney, a maneuver that “took unfair advantage” of the pressures inherent in an interrogation and which were “likely to produce involuntary statements.” 177 F.3d at 1158. In Wysinger, “an incorrectly worded Miranda warning, one suggesting that Miranda rights apply only to direct questioning or to the time before direct questioning, followed by diversionary tactics that redirect the suspect away from asserting those rights, frustrate[d] the purpose of the Miranda protections.” 683 F.3d at 800.

The situation presented in the present case is not nearly as nefarious as those presented in Wysinger and Henry. This is particularly true if the December 21, 2017 interview is viewed in the context of the December 19, 2017 interview that took place just a few days earlier. As noted, at 4:11 p.m. on December 19, 2017, approximately 90 minutes after defendant Castro's immigration arrest, Detectives Maldonado and Mora began questioning him at the Fresno County Sheriff's Office. (See Doc. Nos. 119 at 5, 56; 154 at 14.) The detectives first asked Castro a number of background questions. (Doc. Nos. 119 at 56-80.) Defendant Castro was then informed of his Miranda rights by the detectives and answered affirmatively when asked if he understood each aspect of that advisement. (Doc. No. 119 at 80-81.) At the time of these advisements and acknowledgements, defendant Castro appeared alert and coherent. He gave no indication that he did not understand anything that was being said to him. Throughout the subsequent 5.5 hours of questioning (with a short meal break), although he occasionally became emotional, defendant Castro provided coherent answers to a wide range of questions put to him by detectives.

Notably for purposes of this analysis, at one point during the interview on December 19, Detective Maldonado asked defendant Castro whether he knew a particular person by reference to that person's name. (Id. at 178.) After being shown a picture, defendant Castro indicated he was able to identify the person. (Id.) Later, Detective Maldonado asked if defendant Castro knew a different person. (Id. at 197.) Defendant Castro indicated that he did not know the name but might remember “[w]ith a picture, maybe.” (Id.) There were other instances during the December 19 interview when the detectives incorporated the use of photos into the flow of their questioning of Castro. (See, e.g., video of 12/19/17 interview at 2 hours and 15 minutes, 2 hours and 17 minutes; 2 hours and 19 minutes.)

In this context the court will address the interrogation of defendant Castro on December 21, 2017. That meeting began with Detective Maldonado asking Castro if he “remember[ed] that we spoke the other day, right?” (Id. at 341.) Then, Detective Maldonado indicated: “[W]e want to show you some photos if that's ok with you.” (Id.) To this, defendant Castro answered “yes.” (Id.) Detective Maldonado then re-Mirandized defendant Castro, stating explicitly that he was doing so “[b]ecause I'm speaking with you and you're under arrest right now.” (Id. (emphasis added).) As previously noted, defendant Castro indicated verbally that he understood each of the enumerated rights. (Id. at 341-42.) He was then asked whether it was “okay” if the detective could “show” him some photos. Although defendant Castro responded “yes, ” he almost immediately thereafter asked: “But that about the lawyer how. . . ? . . . . That that you say about the attorney.” (Doc. No. 119 at 342.). Detective Maldonado answered by stating: “Oh, that just means that if you would like - if you prefer to have an attorney here before we talk. . . . that's your right. But like I tell you, we're just going to show you some photos.” (Id.) Detective Maldonado's comment could be interpreted as a deliberate diversionary tactic designed to confuse the defendant into misunderstanding when the questioning would begin and/or implying that the questioning would not begin when Detective Maldonado “just” showed defendant “some photos.” Detective Maldonado certainly could have been more precise with his choice of words. However, when viewed in context, the court can find no basis upon which to believe that defendant Castro would actually have been confused into thinking no questions would be posed to him in connection with his viewing of those photos. As mentioned, his previous interview on December 19 was interspersed with questions from the detectives regarding the photographs of people being shown to Castro. In addition, Detective Maldonado specifically indicated before reading defendant Castro his Miranda rights on December 21 that it was the investigators' intention to talk with defendant Castro about the photos. For these reasons, the instant case is distinguishable from Wysinger, where multiple diversions obfuscated when the questioning of the defendant would begin. Moreover, as noted above, defendant Castro takes no issue with the wording of the Miranda warnings he was given.

In addition, neither the December 19 nor the December 21 interview evidenced any other significant issues that might call into question the voluntariness of defendant Castro's statements to detectives. As noted above, courts are to consider the following factors in determining whether a defendant “knowingly and intelligently waived [her] constitutional rights”:

(1) whether the defendant signed a written waiver; (2) whether the defendant was advised of his rights in his native tongue; (3) whether the defendant appeared to understand his rights; (4) whether a

defendant had the assistance of a translator; (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.

Garibay, 143 F.3d at 538 (internal citations omitted). Here, although no signed, written waiver has been presented to the court (presumably because none was obtained), the verbal Miranda warnings were properly worded; defendant Castro was advised of them individually in his native tongue; and the defendant appeared to have understood his rights, as he acknowledged them verbally without hesitation. Upon reviewing the video recordings of the interviews, the court finds that the detectives did not seek to intimidate or distract defendant Castro in any obvious ways, such as by yelling or slamming furniture, or by exhibiting any other threatening behavior.

Defendant Castro argues that the absence of a written waiver, along with his undisputed lack of education and lack of significant experience with criminal justice weigh against the admission of any of his statements made during his interrogations. Youth, lack of education, and inexperience with the criminal justice system do not render statements per se involuntary, but they do require the court to use “special care” in scrutinizing the record. See Rodriguez v. McDonald, 872 F.3d 908, 922 (9th Cir. 2017) (citing Haley v. Ohio, 332 U.S. 596, 599-600 (1948)). The Ninth Circuit has called for close scrutiny regarding interrogations of those under the age of 18. See Doody v. Ryan, 649 F.3d 986, 1010 (9th Cir. 2011). Defendant Castro was more than nineteen years old at the time he was questioned in this investigation. (See Doc. No. 119 at 46 (providing date of birth).) Moreover, although defendant Castro's limited level of education is undisputed, he was able to clearly articulate his answers to the questions posed to him by detectives. Nor is there any evidence before the court that defendant Castro suffers from any diminished intellectual capacity. Even assuming defendant Castro's age and background warrant the exercise of special care, the court has scrutinized the record and concludes that the totality of the circumstances support a finding that any statements defendant Castro made during the early part of his December 21, 2017 interview by detectives were voluntary, with that conclusion bounded by the ruling set forth below. /

2. Defendant Castro's Invocation of the Right to Counsel on December 21, 2017

The court will now separately evaluate the second exchange between defendant Castro and investigators regarding his right to counsel that took place on December 21, 2017. Specifically, toward the end of the interrogation that night, defendant Castro asked the detectives “how long am I going to be here? . . . Because I don't have money to pay for an attorney.” (Id. at 349.)¹⁴ Detective Maldonado responded, “No, if - if you don't - there it says that they give you one at no cost.” (Id.) Defendant Castro then responded, “Ah, well then I want one.” (Id.) Detective Maldonado then explained “Yes, they're going to give one to you. Already - already before you go to court they're going to give you, eh, an attorney.” (Id. at 350.)

14 The court is not blind to the fact that this comment suggests that defendant Castro may not have actually fully understood the nature of his right to appointed counsel, even though that right was twice earlier explained to him correctly in the Spanish language. Nonetheless, at the time he was read his Miranda rights on December 21, 2017, he appeared to understand those rights, told the detectives as much, and then provided cogent answers to their questions. The relevant inquiry under the totality of the circumstances analysis is “whether the defendant appeared to understand his rights.” Garibay, 143 F.3d at 538 (emphasis added).

The government has properly conceded that Castro's statement to detectives on December 21, 2017, “Ah, well then I want one” in reference to an attorney, did constitute a clear and unambiguous invocation by Castro of his right to counsel. (Doc. No. 154 at 22, 25.) The government therefore agrees that Castro's statements to officers on December 26, 2017, after this invocation of his right to counsel were obtained in violation of Miranda. (Doc. No. 154 at 8.) However, the government argues that the statements by plaintiff during that December 26, 2017 were voluntarily made and are admissible for purposes of impeachment if defendant Castro were to testify at his trial. (Id.) Notably, defendant Castro does not argue that his post-invocation statements either on December 21, 2017 or December 26, 2017 were involuntarily made or were the product of coercion. (See generally Doc. Nos. 119 at 3-15; 164 at 2-6.)

In light of the government's concession, the court will grant defendant's motion to suppress in part and order that any statement made by defendant Castro following his invocation of his right to counsel on December 21, 2017, as well as his statements made during his brief interrogation on December 26, 2017, shall be suppressed and may not be introduced into evidence during the government's case in chief during the trial of this action. However, that order will be without prejudice to the use of those statements for purposes of impeachment on cross-examination should defendant Castro elect to testify at trial, subject to a determination that their use for that purpose is otherwise appropriate. See Oregon v. Elstad, 470 U.S. 298, 307 (1985) (“[T]he Miranda presumption, though irrebuttable for purposes of the prosecution's case in chief, does not require that the statements and their fruits be discarded as inherently tainted. Despite the fact that patently voluntary statements taken in violation of Miranda must be excluded from the prosecution's case, the presumption of coercion does not bar their use for impeachment purposes on cross-examination.”); Oregon v. Hass, 420 U.S. 714, 721 (1975) (“[I]t does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.”) (quoting Harris v. New York, 401 U.S. 222, 224 (1971)).

D. Motion To Suppress December 21, 2017 and December 26, 2017 Interrogation Statements Due to Unreasonable Delay in the Defendant's Initial Appearance Before a Magistrate Judge

Defendant Castro also moves to suppress his December 21, 2017 and December 26, 2017 interrogation statements on the ground that the government intentionally and unreasonably delayed his initial appearance before a U.S. Magistrate Judge for arraignment for the purpose of subjecting him to extended and repeated interrogations prior to the appointment of counsel on his behalf. (Doc. Nos. 119 at 12-15; 166 at 3.) In this regard, he argues that the government's conduct violated his rights under 18 U.S.C. § 3501(c), Federal Rule of Criminal Procedure 5 and the rule announced by the Supreme Court in McNabb v. United States, 318 U.S. 332 (1943), and Mallory v. United States, 354 U.S. 449 (1957), authorizing suppression of any confession obtained during a period of unreasonable delay before appearance for purposes of arraignment and advisement of rights by the court. The court does not find these arguments advanced by defendant Castro to be persuasive.

The Supreme Court has held that 18 U.S.C. § 3501(c) does not apply to statements made by an individual who is being held solely on state charges, as was the case with defendant Castro here. United States v. Alvarez-Sanchez, 511 U.S. 350, 350-52 (1994). The Supreme Court reasoned:

Because the term delay presumes an obligation to act, there can be no “delay” in bringing a person before a federal judicial officer until there is some obligation to do so in the first place. Such a duty does not arise until the person is arrested or detained for a federal crime. Although a person arrested on a federal charge by any officer-local, state, or federal-is under “arrest or other detention” for the purposes of § 3501(c) and its safe harbor period, one arrested on state charges is not. This is true even if the arrest officers believe or have cause to believe that federal law also has been violated, because such a belief does not alter the underlying basis for the arrest and subsequent custody.

Id. at 350-52 (holding that § 3501(c) did not apply where a defendant was arrested on state charges by local authorities on a Friday, was questioned by federal authorities the following Monday, a criminal complaint was prepared that same day, and was presented to a federal magistrate judge the following day). The Supreme Court in Alvarez-Sanchez 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. at 359-60. However, there is no evidence in this case of any such collusion between state and federal authorities.

As recounted above, defendant Castro was arrested on December 19, 2017. After his second interrogation by Sheriff's detectives on December 21, 2017, he was released from the Fresno County Jail because no formal state criminal charges were filed against him following his arrest. (Doc. Nos. 138-10 ¶ 3; 154 at 16.) Indeed, at the time defendant Castro was released, “his co-defendant, Israel Rivas-Gomez, had not yet confessed . . . .” (Doc. No. 154 at 16.) Authorities didn't discover the decedent until later on the evening of December 21, 2017, after questioning Rivas-Gomez. (Doc. No. 138 at 19.) FBI Agent Demmon has declared that he began preparing the affidavit in support of the federal criminal complaint charging defendant Castro that night and continued gathering information and drafting his affidavit throughout the day on Friday, December 22, 2017, before he met with Magistrate Judge McAuliffe at approximately 5:00 p.m. when he swore to the affidavit and the complaint was issued.¹⁵ (Doc. Nos. 101-12 ¶ 3; 138-6 ¶ 2.) Because of the federal Christmas holiday on Monday, December 25, 2017, defendant Castro was brought by federal authorities to the first available criminal calendar in this court on Tuesday, afternoon, December 26, 2017, for arraignment.

15 Agent Demmon declares that as he was working on the affidavit, he received additional information relevant to investigation as officers searched and canvassed the crime scene. (Doc. No. 101-12 ¶ 4.) In addition, the government represents that a U.S. Attorney's Office requires the authorization of the Department of Justice in Washington, D.C. to pursue violent crimes in aid of racketeering charges such as those brought against defendant Castro in this case, thereby necessitating additional time for the affidavit and complaint to be presented. (Doc. Nos. 101 at 29 (citing U.S. Dept. of Justice Manual § 9-110.801); 101-12 ¶ 3; 138-6 ¶ 2.)

Counsel for defendant Castro suggests that the that the delay from Thursday night December 21, 2017 until Tuesday December 26, 2017 in bringing defendant Castro before a Magistrate Judge of this court for arraignment suggests that federal authorities intentionally delayed the initial appearance in order to subject the defendant to continued questioning without the benefit of appointed counsel.¹⁶ (Doc. No. 166 at 3.) That argument is based not on evidence, but on speculation. The undersigned concludes that there is no evidence of collusion between state and federal authorities to delay defendant Castro's arraignment in federal court nor was there any inappropriate or unreasonable delay on the part of federal authorities in seeking a complaint against defendant and his appearance thereon over the Christmas holidays. Moreover, there is a total lack of evidence even suggesting that any delay that occurred as result of the Christmas holiday was motivated by an improper purpose. Accordingly, the court will deny defendant Castro's motion to suppress his December 21, 2017 and December 26, 2017 interrogation statements premised upon the alleged unreasonable delay in his appearance before this court for purposes of arraignment.

16 To the extent that defendant Castro argues that he could have been brought to an initial appearance in state court before December 26, 2017, the Supreme Court has rejected this argument, holding the “State's failure to arraign or prosecute respondent does not alter this conclusion.” Alvarez-Sanchez, 511 U.S. at 359.

V. DEFENDANT'S REQUEST FOR EVIDENTIARY HEARING

As noted at the outset, defendant Castro has also requested an evidentiary hearing in connection with his motion to suppress his interrogation statements. (Doc. No. 166.) Specifically, he contends that “the vague and equivocal declarations that accompany the government's opposition fail to eliminate” factual issues that must be resolved and that “there are simply too many facts that would have to be ignored or deemed coincidental for the Court to rule” on the pending motion to suppress without holding an evidentiary hearing. (Id. at 3.) For the reasons explained above, the undersigned disagrees and determines that an evidentiary hearing is neither necessary nor would aid the court in resolving the pending motion to suppress statements.

“An evidentiary hearing on a motion to suppress need be held only when the moving papers allege facts with sufficient definiteness, clarity, and specificity to enable the trial court to conclude that contested issues of fact exist.” United States v. Howell, 231 F.3d 615, 620 (9th Cir. 2000) (citing United States v. Walczak, 783 F.2d 852, 857 (9th Cir. 1986), United States v. Harris, 914 F.2d 927, 933 (7th Cir. 1990), United States v. Irwin, 612 F.2d 1182, 1187 n.14 (9th Cir. 1980), and United States v. Carrion, 463 F.2d 704, 706 (9th Cir. 1972)). “[T]o mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a desire to cross-examine.” United States v. Marcello, 731 F.2d 1354, 1358 (9th Cir. 1984)); see also United States v. Woodson, No. CR 11-00531 WHA, 2011 WL 5884913, at *6 (N.D. Cal. Nov. 23, 2011) (denying a defense request for an evidentiary hearing because “mere refusal to accept the uncontradicted evidence does not create a material issue of fact”); United States v. Walker, 239 F.Supp.3d 738, 739 (S.D.N.Y. 2017) (“While [an evidentiary hearing] might have been warranted if there were important credibility issues that could not be addressed from the paper record, the defendant has made no showing that that is the case here.”).

In moving to suppress his interrogation statements, defendant Castro has simply failed to present any facts supporting his legal arguments with “sufficient definiteness, clarity, and specificity to enable the trial court to conclude that contested issues of fact exist.” Howell, 231 F.3d at 620. Indeed, defendant Castro has not even submitted a declaration stating that he, in fact, received conflicting advisements as to his right to counsel. His counsel's after-the-fact arguments suggesting that the mere existence of the unsigned Notice to Appear and Record of Deportable Alien (I-213) dated December 19, 2017, suggests that the defendant was told that he had a right to an attorney, but only without expense to the government, is insufficient to create a factual dispute as to that point. (See Doc. No. 119 at 4-5.) Defendant Castro has neither presented nor proffered any evidence supporting his counsel's argument that DO Jacques informed Castro that he had to pay for his own attorney on December 19, 2017. (See generally id.) Those unsupported arguments of counsel do not call into question DO Jacques's sworn declaration detailing the relevant sequence of events. (Doc. No. 138-8 ¶¶ 5-6.) The court notes, in this regard, that the only signed certificate of service indicates that defendant Castro received the immigration advisements on December 21, 2017, after his first two interrogations by detectives which were initiated following Miranda advisements. (See Doc. No. 119 at 436-43.) Further, defendant Castro does not call into question the immigration docketing exhibit reflecting that as of December 19, 2017 at 8:10 p.m., he had not yet been issued a “NTA” (Notice to Appear), which would have contained the immigration advisements. (Doc. No. 138-5 at 2.) Nor has defendant Castro submitted any evidence calling into doubt the ICE docket entry which reflects that he was not booked into ICE custody until December 21, 2017, at 6:02 p.m. (Doc. No. 138-5.) Thus, defendant Castro has not presented any definite, clear or specific facts establishing that a contested issue of fact exists with respect to his counsel's conclusory claim of him having received conflicting and confusing advisements regarding his right to counsel. See Howell, 231 F.3d at 620; see also Marcello, 731 F.2d at 1358; Woodson, 2011 WL 5884913, at *6 (denying a defense request for an evidentiary hearing because a “mere refusal to accept the uncontradicted evidence does not create a material issue of fact”).

Because defendant Castro's contention that his interrogations by law enforcement officers on December 19, December 21 and December26, 2017, were tainted by an earlier immigration advisement is nothing more than a conclusory argument that lacks any factual basis, his request for an evidentiary hearing will be denied.

CONCLUSION

For the reasons explained above:

1. Defendant Castro's motion for an evidentiary hearing (Doc. No. 166) is denied;

2. Defendant Castro's motions to strike the declarations submitted by the government is denied;

3. Defendant Castro's motion to suppress his statements made during his police interrogations (Doc. No. 119) is denied in part and granted in part with all his interrogation statements obtained following his invocation of his right to counsel during the December 21, 2017 interrogation suppressed from evidence in the government's case in chief, without prejudice to the use of those statements for purposes of impeachment on cross-examination should the defendant elect to testify at his trial and subject to a determination that their use for that purpose is otherwise appropriate and the motion to suppress statements is denied in all other respects;

4. Defendant Castro's motion to suppress statements is also denied to the extent it seeks dismissal of the charges pending against him based on his interrogations by detectives; and

5. The Clerk of the Court is directed to temporarily file this order under seal. The parties are directed to meet and confer in an attempt to reach agreement on the portions of the order that should be redacted from the version that will be filed on the public docket and shall jointly (or separately if agreement cannot be reached) propose redactions within twenty-one (21) days of the date of this order.

IT IS SO ORDERED.