Opinion
CR-23-00321-001-TUC-SHR (BGM)
05-09-2024
United States of America, Plaintiff, v. Mario Garcia-Estrada, Defendant.
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald United States Magistrate Judge
On November 17, 2023, Defendant Mario Garcia-Estrada filed a Motion to Suppress Pretrial Identification (Doc. 25) and a Motion to Suppress Statements (Doc. 28). Pursuant to Local Rule of Criminal Procedure 5.1, this matter was referred to Magistrate Judge Bruce G. Macdonald for a report and recommendation. (Doc. 20.) Both motions have been briefed (Docs. 34-35, 38-39) and an evidentiary hearing held (Docs. 47, 51-52). For the following reasons, this Court recommends that the District Judge deny Defendant's motions.
I. BACKGROUND
On March 8, 2023, Defendant was indicted on two counts of Assault on a Federal Officer for allegedly striking United States Border Patrol (“USBP”) Agent L.B. (Doc. 8.) The parties dispute the identity of the assailant.
The agent's initials are used to protect her identity.
In the early morning of March 4, 2023, Defendant illegally entered the United States from Mexico. (Transcript Evidentiary Hearing ("Tr.") 1/5/2024, Doc. 62 at 6.) USBP cameras spotted Defendant and his companion near Bisbee, Arizona. (Id.) Agent L.B. was dispatched to the area, where she encountered Defendant hiding behind some mailboxes. (Id. at 7.) Agent L.B. questioned Defendant in Spanish, and he admitted to being in the country illegally. (Gov't Ex. 10.)
Exhibits refer to those provided at the evidentiary hearing.
Agent L.B. informed USBP dispatch she would secure Defendant in her vehicle before looking for the companion. (Gov't Ex. 14.) Agent L.B. then searched Defendant, taking custody of his Mexican identification and cell phone. (Doc. 62 at 8-9.) Because Defendant was being cooperative, Agent L.B. escorted him to her patrol vehicle without handcuffs. (Id. at 10.) But as the agent attempted to place Defendant in the patrol vehicle, he pushed her to the ground and punched her. (Id. at 16-17, 47-48.) During the altercation, Agent L.B. tried to hold on to Defendant's collar, but he continued to punch her in the face and head multiple times. (Id. at 42-43, 47, 51.) When Agent L.B. lost her grip, Defendant fled the scene on foot. (Id. at 16-17.) Shortly after 4:00 a.m., Agent L.B. told the camera operator to follow him. (Id.) The cameras tracked Defendant to a wash but then lost visual for approximately twenty minutes; however, camera operators did not see anyone exit the wash. (Tr. 2/8/2024, Doc. 64 at 11, 38-39; Doc. 62 at 84; Def. Ex. 64; Gov't Ex. 2 at 32.) There were four directions Defendant could have fled, and each direction was covered by different agents. (Doc. 62 at 83.) Agents, using night vision goggles, tracked Defendant's footprints from the exact location of the lost visual and found him hiding twenty-five yards away. (Doc. 64 at 38-39; Def. Ex. 65; Gov't Ex. 12.) Defendant was then detained. (Doc. 62 at 84.)
Soon thereafter, agents presented Defendant to Agent L.B. for a show-up identification. (Id. at 53-54.) USBP Agents John Chavira and Joseph Fernandez brought Defendant to Agent L.B. and asked, "Hey, is this the guy?" (Doc. 64 at 42.) Under a full moon, with the high beams on, and at a distance of approximately the width of her vehicle, Agent L.B. positively identified Defendant as her assailant. (Doc. 62 at 19, 54; Doc. 64 at 55.) Agent L.B. testified she could see Defendant clearly and identified him immediately. (Doc. 62 at 19.) The identification card Agent L.B. collected earlier also matched Defendant. (Id. at 20.)
A show-up identification is "[t]he process of apprehending somebody and then bringing them to a witness and asking them if that's the individual that they had previously seen." (Doc. 64 at 18.)
At 5:14 a.m., Defendant was given Form I-214 in Spanish with Miranda warnings. (Gov. Ex. 5; Doc. 62 at 66.) USBP Agent Austin Perks read Defendant his Miranda rights from the form. (Doc. 62 at 66-67.) Defendant signed the form acknowledging he was aware of and understood these rights. (Id. at 66, 68.) He was then asked questions for the administrative removal process. (Doc. 64 at 86.)
At 8:58 a.m., USBP Agent Lorena Avenson again read Defendant the Miranda rights in Spanish from Form I-214. (Id. at 65, 67.) Agent Avenson asked Defendant if he understood these rights. (Id. at 87.) Defendant stated that he understood his rights and did not ask any clarifying questions. (Id. at 193.) However, this time, Defendant signed Form FD-395 instead of Form I-214. (Id. at 68.) Form FD-395 was written in English. (Gov't Ex. 4.)
Agent Avenson, an FBI Special Agent, and a Cochise County Deputy Sheriff then conducted a recorded interview of Defendant. (Id. at 62, 64: Def. Ex. 83.) This was the only time Defendant was interviewed about the assault. (Def. Ex. 76.) During the interview, Defendant admitted to punching Agent L.B. and fleeing the scene. (Def. Ex. 69 at 6, 815.)
Defendant asks to suppress Agent L.B.'s pretrial and in-court eyewitness identification as well as Defendant's post-arrest statements. (Docs. 25, 28.)
II. Discussion
a. Miranda Waiver
Prosecutors may only use a statement made during a custodial interrogation if the defendant is “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,” and the defendant then waives those rights. Miranda v. Arizona, 384 U.S. 436, 444 (1966). An effective waiver must be “made voluntarily, knowingly and intelligently.” Id. “Whether there has been a valid waiver depends on the totality of the circumstances.” United States v. Rodriguez-Preciado, 399 F.3d 1118, 1127 (9th Cir. 2005), as amended, 416 F.3d 939 (9th Cir. 2005) (quoting United States v. Doe, 155 F.3d 1070, 1074 (9th Cir. 1998)). To determine whether there was a valid waiver, the court may weigh: "(i) the defendant's mental capacity; (ii) whether the defendant signed a written waiver; (iii) whether the defendant was advised in his native tongue or had a translator; (iv) whether the defendant appeared to understand his rights; (v) whether the defendant's rights were individually and repeatedly explained to him; and (vi) whether the defendant had prior experience with the criminal justice system." United States v. Crews, 502 F.3d 1130, 1140 (9th Cir. 2007). Moreover, the government bears the burden of establishing by a preponderance of the evidence that a waiver was voluntary. United States v. Bautista, 362 F.3d 584, 589 (9th Cir. 2004).
Under the totality of the circumstances, the government has shown by a preponderance of the evidence that Defendant knowingly and intelligently waived his rights.
First, Defendant argues that his "intellectual limitations prevented him from knowingly and intelligently waving his Miranda rights." (Doc. 28 at 9-10.) While Defendant claims he has a below normal IQ, he made it to ninth grade. (Doc. 64 at 111, 113.) Moreover, Defendant is capable of asking clarifying questions-for instance, he did so when Agent Avenson was questioning him-but did not request clarification when being read or signing the Miranda waiver and did not show signs of confusion. (See id. at 101.) In addition, Defendant's neuropsychologist Dr. Marisa Menchola also testified that at times she had to clarify certain questions for Defendant, and she indicated that Defendant could communicate if he did not understand. (Id. at 124, 130.)
Second, Defendant signed two forms indicating he understood his rights. "An express written or oral statement of waiver of the right to remain silent . . . is usually strong proof of the validity of that waiver ...." North Carolina v. Butler, 441 U.S. 369, 373 (1979).
Third, Defendant was advised at least twice in his native tongue that (1) he had the right to remain silent, (2) any statement could be used against him in a "law court," and (3) he had a right to an attorney, and if he could not afford one, a lawyer would be provided to him. (See Tr. 2/9/2024, Doc. 65 at 52-54; Def. Exh. 69 at 3-4.) Defendant was asked if he understood these rights and at no time did Defendant indicate he had not understood, despite asking for clarification in other instances. (See Doc. 64 at 71.)
USBP agents were unsure whether the Miranda warnings were conveyed in the field. (Doc. 64 at 25.).
Fourth, there is no indication that Defendant did not understand his rights other than his post-hoc affidavit. Defendant argues his waiver was involuntary because Form I-214 was outdated, and agents did not translate the accurate warning from Form FD-395. (Doc. 28 at 12.) As the Government noted, Miranda requirements have not changed substantively in the years since the opinion issued. This district, as well as others, have accepted Form I-214 as a sufficient waiver of rights, both in English and Spanish. See United States v. Tzunux-Ruiz, No. CR-10-0016-TUC-RCC-DTF, 2010 WL 5691507, *3 (Dec. 10, 2010) (finding waiver valid after being read Form I-214 in Spanish and Form I-215 in English and signing both), report and recommendation adopted, 2011 WL 380656 (D. Ariz. Feb. 3, 2011); see also United States v. Diaz-Lemus, No. CR 09-2613-TUC-DCB, 2010 WL 2573215, *2 (D. Ariz. May 3, 2010) (determining that after being read and signing Form I-214 twice, defendant had waived his rights), report and recommendation adopted, 2010 WL 2573748 (D. Ariz. June 2010); see also United States v. Alanis-Cuellar, No. 5:19-CR-371, 2019 WL 4039974, at *8 (S.D. Tex. Aug. 6, 2019), report and recommendation adopted, 2019 WL 4039976 (S.D. Tex. Aug. 27, 2019) (finding defendant "effected a knowing waiver" when he was read and signed Form I-214 in Spanish).
Defendant adds that the language in Form I-214 differs from Form FD-395, and because Form FD-395 was neither read to him in English nor translated for him, his signature on the form does not demonstrate his knowing, voluntary, and intelligent waiver of rights. (Doc. 28 at 8.) But "reviewing courts . . . need not examine Miranda warnings as if construing a will or defining the terms of an easement," and should instead focus on the warnings as a whole to determine whether they pass constitutional muster. United States v. Miguel, 952 F.2d 285, 288 (9th Cir. 1991) (quoting Duckworth v. Eagan, 492 U.S. 195, 203 (1989)). Although the second signed Form FD-395 was not a word-for-word replica of what was read from Form I-214, Form FD-395 contained substantially similar information allowing Defendant to make an informed decision. Agent Avenson testified that Form I-214 is the standard Miranda form used by USBP agents and she read directly from it. (Doc. 64 at 66-67.) Agent Avenson later compared Form I-214 to Form FD-395 and noted that I-214 is conceptually similar and both forms inform a defendant that "anything you say can be used in court" and that a defendant "can have a lawyer present before we ask you any questions." (Id. at 97-98.) Moreover, even Defendant's expert's translation provided the basic information necessary for Miranda. (See Def. Ex. 69 at 3-4; Doc. 65 at 52-54.)
Defendant also asserts Form I-214 is misleading because it only provides that statements may be used “in administrative or immigration proceedings,” not in a court of law. (Doc. 28 at 4-5.) Defendant claims the omission is because Form I-214 uses "juzgado de leyes," which does not translate to "court of law." (Id. at 4-6.) Defendant argues "juzgado de leyes" is not a word in Spanish, but Defendant's interpreter's translation equates the phrase to "law court." (Def. Ex. 69 at 3.) The Court finds this sufficiently informed Defendant that any statement he made could be used against him in court. It is not necessary to have a perfect translation for a defendant to comprehend the term's meaning.
Fifth, the Miranda warning was repeated to Defendant on at least two occasions in his native language and he had multiple opportunities to ask for clarification. This factor weighs in favor of a voluntary waiver.
Sixth, there is no indication that Defendant has prior experience with the criminal justice system. However, given the aforementioned factors, the Court finds this factor does not outweigh the circumstances showing that Defendant provided a knowing and intelligent waiver.
Finally, Defendant claims his statement was involuntary because agents used coercive measures (e.g. the power of suggestion) to force him to admit to assaulting L.B. by choosing to use an outdated form (Form I-214) and failing to translate Form FD-395. (Doc. 28 at 12.) Defendant also argues Agent Avenson's suggestion that Defendant hit L.B. was coercive and so his subsequent admission was involuntary. (Id. at 12-13.) In the transcript of the interview, Agent Avenson asks Defendant what happened. (Gov't Ex. 2 at 4.) Defendant explains an agent tried to arrest him but he escaped and was caught. (Id.) Agent Avenson responds, "Okay, but you know exactly what I'm talking about. Okay, you hit the agent. So that's what I'm asking, what happened?" (Id.) Defendant then admits, "So yes, I--I hit her." (Id.)
"In determining the voluntariness of a confession, a court 'examines whether a defendant's will was overborne by the circumstances surrounding the giving of a confession.'" Doody v. Ryan, 649 F.3d 986, 1008 (9th Cir. 2011) (quoting Dickerson v. United States, 530 U.S. 428, 434 (2000)). The voluntary "test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne." United States v. Bautista, 362 F.3d 584, 589 (9th Cir. 2004) (citation and internal quotations omitted). However, “[a] waiver is voluntary if, under the totality of the circumstances, the confession was the product of a free and deliberate choice rather than coercion or improper inducement.” United States v. Rodriguez-Preciado, 399 F.3d 1118, 1128 (9th Cir. 2005) (quoting United States v. Doe, 155 F.3d 1070, 1074 (9th Cir. 1998)). The court may weigh factors such as: (1) whether a defendant was given Miranda warnings; (2) the location, length, and continuity of the interrogation; and (3) the defendant's education, maturity, mental health, and physical condition. Withrow v. Williams, 507 U.S. 680, 693 (1993).
Agents did not overcome Defendant's free choice by reading from Form I-214. As explained, the essence of Defendant's Miranda rights were relayed in both the Form I-214 and FD-395. Defendant signed both. There were no coercive measures taken to make him sign.
Moreover, the interrogation was not unusually long, and, although there was a break between agents' administrative and criminal questioning, Defendant was reread his rights before the second round of questioning. Within minutes of Agent Avenson's questioning, Defendant admitted to hitting Agent L.B.
And, as stated previously, Defendant has a ninth-grade education, can read and write, and there are no noted mental health or physical issues that would lead the Court to believe he was unusually susceptible to the power of suggestion. Defendant's claim that his will was overcome is unpersuasive. Agents did not lie or misrepresent the facts to obtain Defendant's statement. The interrogation was not prolonged, nor did Agent Avenson repeat her question to obtain the desired answer. Agent Avenson merely stated what she believed to be true and Defendant immediately concurred.
In sum, Defendant provided a waiver of his Miranda rights that was knowing, voluntary, and intelligent. Therefore, the Court recommends the District Court deny Defendant's Motion to Suppress Statements.
b. Show-Up Identification
"Suggestive pretrial identification procedures may be so impermissibly suggestive as to taint subsequent in-court identifications and thereby deny a defendant due process of law." United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985). A pretrial identification is suggestive when it "emphasize[s] the focus upon a single individual." United States v. Montgomery, 150 F.3d 983, 992 (9th Cir. 1998). However, "[i]f under the totality of the circumstances the identification is sufficiently reliable, identification testimony may properly be allowed into evidence even if the identification was made pursuant to an unnecessarily suggestive procedure." Bagley, 772 F.2d at 492 (citations omitted).
Reliability considerations include "(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation." Id. (first citing Neil v. Biggers, 409 U.S. 188, 199-200 (1972); then citing United States v. Field, 625 F.2d 862, 866-67 (9th Cir. 1985)).
The show-up identification was clearly suggestive. Defendant was the only suspect presented to L.B. for identification. However, under the totality of the circumstances, the identification was reliable.
First, Agent L.B. had close contact with Defendant for a significant amount of time. Agent L.B. had a clear view and ample opportunity to inspect Defendant as she walked Defendant to her vehicle from the mailboxes. (See Doc. 62 at 8.) She was also within an arm's length of Defendant when he punched her.
Second, Agent L.B.'s attention was directed at Defendant throughout the encounter because they were the only two people in the vicinity.
Third, Agent L.B.'s description to the camera operators and the subsequent events decrease the likelihood of a false identification. Agent L.B. informed camera operators to follow Defendant from the site of the assault. Cameras then tracked Defendant to the wash. No other individuals were spotted entering or leaving the area. Additionally, the area where Defendant fled was "cordoned off." (Doc. 62 at 82-83.) Agent Chavira indicated that originally cameras spotted Defendant's companion running to the east from the location of the assault, whereas Defendant ran northwest, and Agent Chavira did not see any other suspected migrants in the area. (Doc. 64 at 15, 33, 51.) The cameras could see to the north of the wash and Agent Chavira approached the wash from the south before the cameras lost visual. (Gov't Ex. 12.) In addition, the cameras maintained visual of the area and did not see anyone enter or exit. (Doc. 64 at 11, 38-39.) Agent Chavira was then directed to the location where visual was lost and tracked fresh footprints from that location to where Defendant was hiding. (Gov't Ex. 12.)
Fourth, at no time did Agent L.B. question Defendant's identity. At the time of the show-up, Defendant was lit by headlights and the light of a full moon, at a distance of about the width of the car. Defense expert Dr. Nancy Steblay conceded that how a suspect is presented to the witness can influence the identification. (Doc. 64 at 177.) She stated it is better to use neutral comments rather than leading conclusions or suggestive comments. (Id.) In this instance, agents simply asked whether Defendant was the assailant, agents did not assume Defendant's identity. (Id. at 42.) Even if Agent L.B. had questioned Defendant's identity, however, it was confirmed by the Mexican I.D. Agent L.B. had in her pocket.
Defendant conceded in the evidentiary hearing that should the court accept that the Mexican voter I.D. presented at the hearing was the one from the night of arrest then the identification issue would be moot, but argued there were problems with the chain of custody. (Doc. 65 at 70.) The Court views the evidence in the light most favorable to the government. See United States v. Sherman, 430 F.2d 1402, 1404 (9th Cir. 1970). Defendant can make a chain of custody argument at trial, however, several agents testified that Agent L.B. had possession of Defendant's identification and confirmed the Defendant was the assailant.
Fifth, minimal time passed between the assault and identification, making the identification more reliable. Dr. Steblay conceded that the best practice for a show-up-if used-is to conduct the show-up as soon as possible while the memory is fresh. (Id. at 17677.) Here the show-up was conducted within a half hour of the assault.
Based on the circumstances presented here, the Court concludes the show-up identification is sufficiently reliable and recommends the District Court deny Defendant's Motion to Suppress Pretrial Identification.
III. Recommendation
It is the recommendation of this Court that the District Court DENY Defendant's Motion to Suppress Pretrial Identification (Doc. 25) and Motion to Suppress Statements (Doc. 28). Pursuant to Federal Rule of Criminal Procedure 59, any party may serve and file written objections within 14 days of being served a copy of this Report and Recommendation. Fed. R. Crim. P. 59(b)(2). A party may respond to the other party's objections within 14 days. LRCiv 7.2(c). No reply shall be filed unless leave is granted by the District Court. If objections are filed, the following case number should be used:
CR-23-00321-001-TUC-SHR.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review. Fed. R. Crim. P. 59(b)(2).