Opinion
Case No. 1:02-CR-56
May 6, 2003
OPINION
This matter is before the Court on three motions by Defendant Severo Garcia-Meza: Defendant's Motion to Suppress, Motion for Hearing to Determine Defendant's Statement, and Motion for Notice of Government's Intention to Use Evidence. Although these matters have been scheduled for hearing by this Court, on review of the motions and responses, the Court now determines that the Motions can be resolved without evidentiary hearing or additional argument.
BACKGROUND
Defendant has been indicted for assault with a dangerous weapon against a 12-year-old Native American "within Indian Country" as charged in Count I of the Indictment. He has also been indicted for murdering Kathleen Floyd Garcia with premeditation, malice aforethought and "within Indian Country" as charged in Count II of the Indictment. These acts are charged as occurring on February 23, 2002 on trust lands of the Grand Traverse Band of Ottawa and Chippewa Indians. The murder charge carries a potential death penalty, although at the time of the writing of this Opinion the Attorney General has not filed any notice of his intention to seek or not seek the death penalty.
As to these crimes, Defendant has moved to suppress three sets of statements: statements made to the arresting officers; statements made to transporting deputies; and statements made during an in-custody interview. Defendant requests that these statements be suppressed as taken in violation of the rule in Miranda v. Arizona, 384 U.S. 436 (1966) prohibiting the questioning of a criminal defendant who is "in custody" and who has either not received Miranda warnings or who has invoked Miranda rights. Defendant has also requested that the statements be suppressed as taken in violation of his rights as a foreign national (Mexican citizen) under Article 36 of the Vienna Convention to be advised "without delay" of his rights to consult his foreign consulate.
Defendant has not made any statements or allegations about the statements he made to authorities — other than to rely upon the police reports and F.B.I. reports which were generated in connection with his arrest and interview. ( See Motion to Suppress and Defendant's Exhibits A-D.) The law enforcement records indicate that at about 3:48 a.m. on February 23, 2002, tribal police officers Cadieux and Baranek were summoned to 11187 East McKeese Road, Suttons Bay, Michigan regarding a stabbing. There officer Cadieux arrested Severo Garcia-Meza for the stabbing based on statements of other occupants of the residence. While in handcuffs, Severo Garcia-Meza stated to officer Cadieux, "How is she[?] You know I did it to protect myself[.] I was getting beat on." While officer Cadieux was taking Defendant to his patrol vehicle, he told Defendant that he was going to perform a " Terry pat down" and asked if Defendant had any weapons on him. He responded by stating, "The knife is in the house."
Defendant was then transported to the Leelenau County Correctional Facility by Leelenau County Sheriff Deputies Duane Wright and James O'Rourke at about 5:15 a.m. When they left the residence, Defendant said, "How Kathleen is? Did I kill her? Tell me, is she dead?" Deputy O'Rourke then told Defendant that the victim was dead. Later while enroute, Defendant said to Deputy Wright, "You know me." This statement was apparently in reference to an earlier domestic assault complaint by the Defendant against the victim which had not been prosecuted. Defendant then accused Deputy Wright of fault because nothing had come of his assault complaint. Deputy Wright responded by stating that it was the prosecutor who had made the decision not to press charges. Defendant then began to speak in Spanish and Deputy Wright, in English, informed him of his Miranda rights. Defendant then invoked his right to counsel. Neither the arresting nor the transporting officers had advised Defendant of his rights under the Vienna Convention.
Defendant was booked and then interviewed at 9:00 a.m. by Special Agent Robert BirdSong and Detective Carrie Siddall. During the interview, Defendant made statements consistent with his earlier statements — that he acted in self-defense. The interview was translated by Ed Galindo. In response to the Motion to Suppress, Plaintiff United States of America has stated that it does not intend to use the interview statements in its case-in-chief, though it reserves the right to use the statements for cross-examination and rebuttal.
Defendant's Motion for a Hearing to Determine Defendant's Statement asks that the Court provide an evidentiary hearing on the subject of the accuracy of the translation made in the course of Defendant's interview. Defendant asserts that if the translation were inaccurate it would create constitutional issues under the Confrontation Clause as well as valid hearsay objections.
Defendant's Motion for Notice of Government's Intent to Use Evidence requests pursuant to Federal Rule of Criminal Procedure 12(b) that the Court order the United States to give notice as required by Rule 12(b). Defendant states in the Motion that it is made for the purpose of identifying other evidence which may be subject to suppression.
LEGAL ANALYSIS Motion to Suppress
1. Hearing of the Motion
Defendant has requested an evidentiary hearing to determine the exact conversations between Defendant and all of the above listed officers. Plaintiff, on the other hand, views an evidentiary hearing as unnecessary in the absence of any apparent factual conflict concerning the basis for suppression.
On the subject of evidentiary hearing, the Fifth Circuit Court of Appeals set forth the following useful guidelines in its Harrelson decision:
Although defendant's motions to suppress and for a hearing do not advert to Fed.R.Crim.P. 41(e), we are convinced that the standards contained in that rule apply. United States v. Migely, 596 F.2d 511 (1st Cir.), cert. denied, 442 U.S. 943, 99 S.Ct. 2887, 61 L.Ed.2d 313 (1979). Under Rule 41(e), an evidentiary hearing is required on a motion to suppress only when necessary to receive evidence on an issue of fact. See In re Searches and Seizures Conducted, Etc., 665 F.2d 775 (7th Cir. 1981). Evidentiary hearings are not granted as a matter of course, but are held only when the defendant alleges sufficient facts which, if proven, would justify relief. United States v. Smith, 546 F.2d 1275 (5th Cir. 1977); United States v. Poe, 462 F.2d 195 (5th Cir. 1972), cert. denied, 414 U.S. 845, 94 S.Ct. 107, 38 L.Ed.2d 83 (1973). Factual allegations set forth in the defendant's motion, including any accompanying affidavits, must be "`sufficiently definite, specific, detailed, and nonconjectural, to enable the court to conclude that a substantial claim is presented.'" United States v. Poe, 462 F.2d at 197 (quoting from Cohen v. United States, 378 F.2d 751, 761 (9th Cir.), cert. denied, 389 U.S. 897, 88 S.Ct. 217, 19 L.Ed.2d 215 (1967)). Accord, United States v. Smith; United States v. Losing, 539 F.2d 1174 (8th Cir. 1976), cert. denied, 434 U.S. 969, 98 S.Ct. 516, 54 L.Ed.2d 457 (1978). General or conclusionary assertions, founded upon mere suspicion or conjecture, will not suffice. See United States v. Migely; United States v. Thornton, 454 F.2d 957 (D.C. Cir. 1971); 3 C. Wright, Federal Practice and Procedure: Criminal 2d, § 675 (1982).
Inherent in these flexible guidelines is a judicial recognition that "the determination of whether a hearing is required [on a motion to suppress] is necessarily dependent upon the particular facts which attend a particular request, and the district court is properly left with a certain amount of discretion in this regard." United States v. Losing, 539 F.2d at 1178. Detailed review of the filings by defendant in support of her suppression motion persuades us that the district court did not abuse its discretion by declining to hold a hearing.United States v. Harrelson, 705 F.2d 733, 737 (5th Cir. 1983); see also United States v. Downs, 173 F.3d 430, 1999 WL 130786, **3 (6th Cir. Jan. 19, 1999); United States v. Unimex, Inc., 991 F.2d 546, 551 (9th Cir. 1993); Cohen v. United States, 378 F.2d 751, 761 (9th Cir. 1967).
At present, there are no alleged disagreements concerning the factual basis for the suppression motion (both prosecution and defense rely upon the written reports in contesting the motion). As such, consistent with the above case law, the Court determines that an evidentiary hearing is unnecessary and that the pending Motion to Suppress should be resolved without an evidentiary hearing. Oral argument is also unnecessary, in this Court's opinion, since the parties' positions are clearly explained in their supporting papers.
2. Miranda Arguments
As set forth above, the Fifth Amendment requires that a criminal defendant once in custody not be interrogated unless first warned of his Miranda rights. Miranda v. Arizona, 384 U.S. 436 (1966). While this rule is firm in its command, it obviously does not cover all statements made by criminal defendants to law enforcement. In particular, "[v]olunteered statements of any kind are not barred by the Fifth Amendment and their admissibility [is not implicated by the Miranda holding.]" Rhode Island v. Innis, 446 U.S. 291, 300 (1980).
In this case, Defendant's statements during the custody interview are now a moot issue since the United States has volunteered not to use those statements. As for the remainder of the statements (those to the arresting and transporting officers), those statements were each volunteered by Defendant — with the exception of the one statement about the knife which was prompted by police questioning. Therefore, each of the statements, with the one exception, are not subject to Miranda.
As for the statement about the knife, it too is not subject to exclusion under Miranda because of the rule of law established by the Supreme Court in New York v. Quarles, 467 U.S. 649 (1984). The Quarles decision was decided under facts essentially identical to the facts of this case — a rape suspect was asked where his gun was as he was being arrested and confessed the location of the gun. The Supreme Court in Quarles held that such questioning fell within a public safety exception to Miranda in order to insure public safety and the safety of the arresting officers. Id. at 655; see also United States v. Talley, 275 F.3d 560, 564-65 (6th Cir. 2001). This rule clearly applies in this case. Here the questioning was done only to insure the safety of the police (who were transporting Defendant) and the public, not to investigate the crime. The importance of the public's safety and the fact of the precedent require that the statement about the knife not be suppressed.
In short, each of Defendant's Miranda arguments either fail or now are moot in light of Plaintiff's decision not to admit the interview statements in its case-in-chief.
3. Vienna Convention Arguments
Defendant urges this Court to suppress the statements made to law enforcement officers on the ground that the statements were caused by a violation of Article 36 of the Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 (1969). This is a multilateral treaty with many nations including both Mexico and the United States. Article 36 of the Convention provides that a foreign national of a signatory state arrested in another signatory state shall be informed "without delay" of his right to contact his foreign consulate for assistance.
In the instant case, it appears that Defendant was not advised of his rights under Article 36 at the times the statements in question were made by him. Defendant argues that this failure constitutes a violation of Article 36 and that under the La Grand Case (Germany v. United States), I.C.J. (June 27, 2001), he is entitled to an individual remedy for the violation and more particularly the remedy of suppression. Plaintiff opposes this argument based on federal precedents including cases of the Sixth Circuit.
While it is true that under the Supreme Court's decision in Breard v. Greene, 523 U.S. 371, 375 (1998) decisions of the International Court of Justice are entitled to "respectful consideration," this does not put them on the same footing as binding precedent of the federal courts. This Court has read the La Grand Case and interprets it as requiring that foreign nationals have "individual rights" under Article 36 of the Conventional. However, the La Grand Case says precious little about the content of those individual rights, including how those rights are to be exercised. The Sixth Circuit, on the other hand, definitively ruled in United States v. Page, 232 F.3d 536, 540-41 (6th Cir. 2000) and United States v. Emuegbunam, 268 F.3d 377, 390 (6th Cir. 2001) that violation of Article 36 is not a "fundamental" violation of individual rights permitting remedies such as suppression of evidence or dismissal of criminal charges. See also United States v. Chaparro-Alcantara, 226 F.3d 616, 618 (7th Cir. 2000); United States v. Minjares-Alvarez, 264 F.3d 980, 986-87 n. 3 (10th Cir. 2001); United States v. De La Pava, 268 F.3d 157, 165-66 (2nd Cir. 2001). Therefore, Defendant's Motion to Suppress on this ground must be denied.
While it is unnecessary for decision, the Court also agrees with Plaintiff's analysis that any violation which occurred did not cause harm associated with the statements. The right to notification "without delay" does not purport to create a right to instant notification upon arrest. Law enforcement officers, presumably, need some time to confirm the identity of a suspect as a foreign national — lest the notice be improvidently given and the resources of both the arresting state and foreign consulate be wasted. In this case, the Defendant's statements were made within a few short hours of the time of arrest and were not caused by a violation of Rule 36.
4. Motion for a Hearing to Determine Defendant's Statements
As stated above, Defendant has requested an evidentiary hearing on adequacy of the translation in connection with the law enforcement interview conducted after his arrest. In light of Plaintiff's decision to not use this evidence in its case-in-chief, the request for an evidentiary hearing is now moot and the evidentiary hearing is unnecessary. While the Defendant may seek discovery from Plaintiff concerning the translation for discovery purposes under Rule 16, no rule of law or logic requires this Court to conduct an evidentiary hearing merely to furnish discovery.
Therefore, Defendant's Motion for a Hearing to Determine Defendant's Statement must be denied.
5. Motion for Notice of Government's Intention to Use Evidence
Rule 12(b)(4)(B) states in pertinent part that the "Defendant may . . . request notice of the government's intent to use (in its evidence-in-chief at trial) any evidence the defendant be entitled to discover under Rule 16." The Rule does not state either explicitly or implicitly that the Court is involved in the notification process; that is, the notification is effective upon the government's receipt of it whether or not followed by order of the district court. It does not appear from the record that Plaintiff has been untimely in responding to this request.
Therefore, Defendant's Motion for Notice of Government's Intention to Use Evidence will be denied as unnecessary and as unwarranted at this time.
CONCLUSION
For the reasons given, an Order shall issue denying each of Defendant's motions.
ORDER
In accordance with the Opinion of this date;
IT IS HEREBY ORDERED that Defendant Severo Garcia-Meza's Motion to Suppress (Dkt. No. 81), Motion for Hearing to Determine Defendant's Statement (Dkt. No. 79), and Motion for Notice of Government's Intention to Use Evidence (Dkt. No. 78) are DENIED.