Opinion
No. 1:07-cr-66.
July 8, 2008
MEMORANDUM AND ORDER
Before the Court are the Objections of Defendant Leonel Barrena [Court Doc. 101] to the Report and Recommendation ("R R") filed by United States Magistrate Judge Susan K. Lee [Court Doc. 97] with respect to Mr. Barrena's Motion to Suppress Statement [Court Doc. 61] and Supplemental Motion to Suppress Statement [Court Doc. 80]. Mr. Barrena and some of his co-defendants filed various pre-trial motions, which the Court referred to Magistrate Judge Lee for the purpose of conducting an evidentiary hearing if necessary and making a report and recommendation pursuant to 28 U.S.C. § 636(b)(1). On December 28, 2007, Judge Lee issued her Report and Recommendation. The recommendations to which Mr. Barrena objects were as follows:
(1) The motion of Barrena to suppress any statements by Barrena to law enforcement and any evidence of his cooperation with law enforcement after his arrest on October 17, 2006 [Doc. 61] be DENIED;
. . . .
(3) Barrena's supplemental motion to suppress any statements made by Barrena following his arrest on the ground his arrest did not comply with the requirements of the Vienna Convention [Doc. 80] be DENIED;
(Report and Recommendation ("R R"), Court Doc. 97, pp. 26 27).
Defendant filed his instant Objections to the R R within the 10-day period specified by 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure. In his objections, Mr. Barrena challenges the R R on a number of grounds, but principally contends that his confession to law enforcement authorities was not knowing, intelligent, voluntary and uncoerced, in that he was unable to understand the Miranda warnings given to him by former Tennessee Bureau of Investigation Special Agent Alex Rodriguez and was therefore intimidated by the entire encounter with police.
For the following reasons, the Court will ACCEPT and ADOPT the Magistrate Judge's R R and will DENY Defendant Barrena's Motion to Suppress Statement [Court Doc. 61] and Supplemental Motion to Suppress Statement [Court Doc. 80].
I. STANDARD OF REVIEW
This Court must conduct a de novo review of those portions of the Report and Recommendation to which an objection is made and may accept, reject, or modify, in whole or in part, the Magistrate Judge's Findings or Recommendations. 28 U.S.C. § 636(b)(1)(C).
II. FACTS
On November 16, 2007, an evidentiary hearing was held before Magistrate Judge Lee on Mr. Barrena's Motion to Suppress Statements, his Supplemental Motion to Suppress Statements, and other related motions of Defendant Barrena and certain of his co-defendants. Testifying for the United States was former Tennessee Bureau of Investigation (TBI) Special Agent Alex Rodriguez and, in rebuttal, TBI Special Agent Heath Frizzell. Testifying for the defense was Dr. Pedro F. Campa of the University of Tennessee at Chattanooga and Francisco Rodriguez, one of Mr. Barrena's co-defendants. In her R R, Magistrate Judge Lee recounted at some length the facts developed at the evidentiary hearing. (Court Doc. 97 at 3-10.) Magistrate Judge Lee found all witnesses except Defendant Francisco Rodriguez to be credible.
The Court notes that Mr. Rodriguez initially filed motions virtually identical to those filed by Mr. Barrena and at issue here. Similarly, Mr. Rodriguez earlier filed objections to Magistrate Judge Lee's R R which, again, were virtually identical to those asserted hereby Mr. Barrena [Court Doc. 98]. On March 31, 2008, however, Mr. Rodriguez entered a plea of guilty to Count Two of the indictment [Court Doc. 111] and has presumably abandoned his objections to Magistrate Judge Lee's R R.
Defendant Barrena has not objected to the Magistrate Judge's findings regarding the evidence presented at the hearing per se. Rather, Mr. Barrena challenges the Magistrate Judge's ultimate conclusion that the facts presented support her conclusion that the Government had carried its burden of showing, by a preponderance of the evidence, that Mr. Barrena's confessions were knowing, intelligent, voluntary and uncoerced, and that he understood the Miranda warnings given to him by Agent Rodriguez. He also objects to Magistrate Judge Lee's conclusion that suppression of any evidence obtained by the Government as a result of his arrest is not required because of the Government's undisputed violation of Article 36 of the Vienna Convention.
Defendant Barrena has not requested that the Court hold another evidentiary hearing on his instant motions and, based on a careful review of the R R, the Court finds no reason to do so. Therefore, the Court will ACCEPT and ADOPT by reference Magistrate Judge Lee's statement of the Evidence Presented at the Hearing as set forth in her R R [Court Doc. 97, pp. 3-10].
III. ANALYSIS
As noted above, Mr. Barrena asserts two principal objections to Magistrate Judge Lee's R R. The Court will address them in turn.
A. Whether Mr. Barrena's Confession was Knowing, Intelligent, Voluntary and Uncoerced.
The relevant portions of Magistrate Judge Lee's R R with respect to this issue are as follows:
Agent Rodriguez credibly testified that after he gave defendants the Miranda warning in Spanish, they indicated they understood their rights and continued to speak and cooperate with him, without difficulties in communication, over an extended period of time. By Defendant Rodriguez's own testimony, he understood Agent Rodriguez's dialect of Spanish well enough to follow his directions to participate in monitored and controlled telephone calls, he understood the serious nature of his circumstances, and he understood cooperation was a way to help himself. Such comprehension does not indicate a significant, if any, language barrier based on the differences in dialect. To the contrary, it strains the limits of credulity to believe the defendants did not understand the Miranda warning because of differences in dialects.
. . . .
While it is undisputed defendants are poorly educated, there may be cultural differences, and Defendant Rodriguez has no prior experience with law enforcement, under the totality-of-the circumstances standard, I FIND Barrena's . . . cooperation and statements on October 17-18, 2006, were made with the requisite level of comprehension.
. . . .
Neither defendant has produced credible evidence of activity on the part of law enforcement in procuring their cooperation that was objectively coercive, was sufficient to overbear the defendants' will, and was the crucial motivating factor in the defendants' decision to make statements and cooperate.
Agent Rodriguez's statement about cooperation was neither objectively coercive nor sufficient to overbear the defendants' will in their respective decision to make the statements and cooperate. His statement about the possible effects of cooperation simply does not rise to the level of an irresistible inducement so as to overbear a defendant's will in regard to remaining silent or making statements in an effort to cooperate. The other evidence presented, such as the defendants' discomfort, the length of the interrogation, and fear and confusion resulting from weapons being drawn on defendants and shouting during the arrest, does not come close to coercion under the totality of the circumstances considered herein.
(Court Doc. 97 at 17-21.)
Based on the foregoing, Magistrate Judge Lee found that the Government had met its burden of demonstrating, by a preponderance of the evidence, and under the totality of circumstances standard, that Mr. Barrena had knowingly, intelligently and voluntarily waived his rights to silence and counsel and his cooperation and statements were not the product of coercion. Accordingly, Magistrate Lee recommended that Mr. Barrena's Motion to Suppress Statement be denied.
In his Objections, Mr. Barrena states as follows:
In summary, a proper analysis of the facts in evidence establishes that the government failed to carry its burden of proving that Mr. Barrena's statement was knowing, intelligent, and voluntary. Mr. Barrena did not understand he had the right to remain silent, that what he said would be used against him, that he had the right to appointed counsel, and that even after he began to answer questions, he had the right to stop at anytime. His understanding was that he had to answer questions posed to him by the authorities. As the Court is well aware, the right of a defendant to remain silent is not universally acknowledged. For instance, in countries with inquisitorial legal systems, defendants are required to answer questions posed by law enforcement.
(Court Doc. 101 at 5-6.)
As indicated above, while Mr. Barrena takes issue with a number of Magistrate Judge Lee's ultimate findings and conclusions, he has not persuaded this Court that such findings or conclusions are incorrect. Rather, and after a thorough de novo review of the entire record, the Court can find no basis upon which to reject or modify any portion of Magistrate Judge Lee's R R with respect to the issue of whether Mr. Barrena's confession to law enforcement was knowing, intelligent, voluntary and uncoerced. Accordingly, the Court ACCEPTS and ADOPTS Magistrate Judge Lee's, R R with respect to this issue and DENIES Mr. Barrena's Motion to Suppress Statement [Court Doc. 61].
B. Whether the Government's Undisputed Violation of Article 36 of the Vienna Convention with his Arrest Requires Suppression of the Evidence Obtained in Connection with Such Arrest.
With respect to this issue, Magistrate Judge Lee's R R provides, in pertinent part as follows:
In an attempt to maintain their argument for suppression in spite of the above the precedent, Defendants rely upon a memorandum to the Attorney General of the United States signed by President George W. Bush, which concerns compliance with the decision of the International Court of Justice in Avena [Doc. 69-2]. The Memorandum states in pertinent part:
I have determined, pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, that the United States will discharge its international obligations under the decision of the International Court of Justice in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Avena), 2004 ICJ 128 (Mar. 31), by having State courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.
[Id.]
Defendants also note the Supreme Court has recently granted certiorari in the case Medellin v. State of Texas, No. 06-984, 2007 WL 2768016 (U.S. Jan. 16, 2007), in which the following issues are presented:
1. Did the President of the United States act within his constitutional and statutory foreign affairs authority when he determined that the states must comply with the United States' treaty obligation to give effect to the Avena judgment in the cases of the 51 Mexican Nationals named in the judgment?
2. Are state courts bound by the Constitution to honor the undisputed international obligation of the United States, under treaties duly ratified by the President with the advice and consent of the Senate, to give effect to the Avena judgment in the cases that the judgment addressed?
Id.
. . .
Contrary to defendants' arguments, the issue of whether an Article 36 violation requires suppression of evidence is not at issue in Medellin. Even if it was, both the Supreme Court and the Sixth Circuit have ruled that an Article 36 violation does not warrant suppression, Sanchez-Llamas at 2682; Page, 232 F.3d at 540, and those rulings are binding on this Court. Thus, I CONCLUDE suppression of any evidence based upon the undisputed violation of Article 36 of the Vienna Convention is not warranted.
(Court Doc. 97 at 24-26.)
In his Objections, Mr. Barrena states, in pertinent part as follows:
Mr. [Barrena] re-asserts his position that any statement by Mr. [Barrena] after his arrest on October 17, 2006, should be suppressed as in violation of the requirements of Article 36 of the Vienna Convention on Consular Relations 1963, which requires that a foreign national who is arrested must be informed without delay of his right to contact his consulate. . . . [Mr. Barrena] wish[es] to preserve this issue for appeal, in the event the Supreme Court makes a ruling in Medellin v. State of Texas, No. 06-984, or a similar case, that resolves the issue favorably to Mr. [Barrena's] position.
(Court Doc. 101 at 6.)
The Supreme Court did, in fact, decide Medellin v. Texas on March 25, 2008, and resolved both issues contrary to the positions taken by Mr. Barrena here. Medellin v. Texas, 128 S.Ct. 1346 (2008). Accordingly, Mr. Barrena's objection to Magistrate Judge Lee's R R on this issue is without merit, and this Court ACCEPTS and ADOPTS Magistrate Judge Lee's R R. Mr. Barrena's Supplemental Motion to Suppress Statement [Court Doc. 80] is DENIED.
IV. CONCLUSION
Based on its de novo review of the entire record, and given the totality of the circumstances as reflected by that record, the Court FINDS that Mr. Barrena understood Agent Rodriguez's recitation of his Miranda rights. The Court FURTHER FINDS that Mr. Barrena's confessions to law enforcement were knowing, intelligent, voluntary and uncoerced. The Court FURTHER FINDS that Mr. Barrena's argument that his confessions to law enforcement should be suppressed because of the Government's undisputed violation of Article 36 of the Vienna Convention is without merit. Accordingly, the Court ACCEPTS and ADOPTS Magistrate Judge Lee's Report and Recommendation [Court No. 97], pursuant to 28 U.S.C. § 636(b)(1)(C) and Defendant Barrena's Motion to Suppress Statement [Court No. 61] and Supplemental Motion to Suppress Statement [Court No. 80] are DENIED.
SO ORDERED.