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granting motion to suppress involuntary confession where the suspect was promised that the charges against him would be limited if he admitted them because the promise "was a specific and tangible promise of leniency and an implied threat of more serious charges if he did not confess"
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CR 08-82 TUC DCB (JM).
November 12, 2008
ORDER
After a full and independent review of the record, the Magistrate Judge's Report and Recommendation is accepted and adopted in part as the findings of fact and conclusions of law of this Court in respect to the Miranda warning. The Court finds, however, that the statements were not voluntary. The Defendant's Motion to Suppress (document 42) is granted.
Procedural Background
On September 19, 2008, the Honorable Jacqueline Marshall, United States Magistrate Judge, signed a Report and Recommendation in this action. She recommends that the Court deny the Motion to Suppress because there was no need to give a Miranda warning to the Defendant, who was not in custody, and the Defendant's statements were voluntary.
Pursuant to 28 U.S.C. § 636(b), the parties had ten days to file written objections to the Report and Recommendation. Defendant filed objections. The Government has not responded. Any objections that have not been raised are waived and will not be addressed by the Court. See 28 U.S.C. § 636(b)(1)(A) (objections are waived if they are not filed within ten days of service of the Report and Recommendation); see also, Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983) overruled on other grounds, United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc) (failure to object relieves the court of obligation to give the factual findings de novo review).
The Court has made a de novo review of the Defendant's objections and the legal principles examined by the Magistrate Judge. For the reasons explained below, the Court finds no error in the law as set out by the Magistrate Judge as it relates to the Defendant's rights under Miranda and adopts the findings and recommendations of the Magistrate Judge as its own. The Court finds that the promise by police to limit the charges against the Defendant to those alleged by the victim, if he admitted them, overbore his will and, thereafter, his statements were involuntary.
Overview
It is undisputed that the Defendant was interrogated and made incriminating statements without the benefit of a Miranda warning. "`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.'" (Report and Recommendation at 5 (citing Stansbury v. California, 511 U.S. 318, 322 (1994) (quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)).
Unless different from the Magistrate Judge's findings of fact, the Court relies on the citations of the record contained in the Report and Recommendation. The Court equally relies on the law as properly stated by the Magistrate Judge. Where different, the transcript of record (TR) is cited herein.
Not every confession obtained absent a Miranda warning is inadmissible because "police officers are not required to administer Miranda warnings to everyone whom they question." Oregon v. Mathiason, 429 U.S. 492, 495 (1977). Miranda only requires a warning where there has been such a restriction on a person's freedom as to render him "in custody." "It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited." Id.
In cases where the suspect has not been formally taken into police custody, the question is whether he has been deprived of his freedom of action in any significant way. Miranda, 384 U.S. at 444. The Court must examine the totality of the circumstances surrounding the interrogation, United States v. Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008), and ask whether a reasonable person in those circumstances would have felt he was free to terminate the interrogation and leave. Id. If so, Miranda was violated. "Statements elicited in violation of Miranda may not be admitted for certain purposes in a criminal trial." (Report and Recommendation at 5 (citing Stansbury, 511 U.S. at 444). If there was no Miranda violation, the question remains whether the statements made by the Defendant were voluntary.
"`Only voluntary confessions are admissible.'" (Report and Recommendation at 9 (citing Malloy v. Hogan, 378 U.S. 1, 7 (1964)). "`In evaluating voluntariness, the 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.'" Id. (quoting United States v. Male Juvenile, 280 F.3d 1008, 1022 (9th Cir. 2002)). "Psychological coercion is equally likely to result in involuntary statements and is just as forbidden as violent or physical interrogation tactics." (Report and Recommendation at 9 (citing Collazo v. Estelle, 940 F.2d 411, 416 (9th Cir. 1991)).
Defendant's Objection 1: Miranda violation
When examining the totality of the circumstances under Miranda, the subjective perceptions of the defendant and the questioning officer are irrelevant to the analysis. Stansbury, 511 U.S. at 322. There are five factors which courts find relevant to whether a reasonable person would have believed he was free to walk away from an interrogation: 1) the language used to summon the individual; 2) the extent to which the defendant is confronted with evidence of guilt; 3) the physical surroundings of the interrogation; 4) the duration of the detention, and 5) the degree of pressure applied to detain the individual. (Report and Recommendation at 7 (citing United States v. Beraun-Panez, 812 F.2d 578, 580 (1987)); United States v. Kim, 292 F.3d 969, 974 (2002). These factors are not exhaustive. Kim, 292 F.3d at 974.
1. Language Used to Summon the Defendant
The Defendant describes the language used to summon him as neutral on the issue of whether a reasonable person would believe he was free to terminate the interrogation and leave. The Magistrate Judge described the following:
Detective Brown made his first telephone contact with the Defendant on October 15, 2007. (Tr. 16.) The Detective identified himself as a police officer and informed the Defendant that his name had come up in an investigation and that he would like to schedule a meeting to speak to him. (Tr. 17.) The Defendant agreed and the interview was scheduled for October 25th. (Tr. 18, 20.) When asked if he wanted to be interviewed at home or at the police station, the Defendant stated that the police station would be fine. (Tr. 19.) Detective Brown asked the Defendant if he needed a ride but he stated that he would get there himself. (Tr. 20.)
On October 25, 2007, the Defendant drove himself to the Tohono O'odham Police Department. (Tr. 21.) The station is a secure facility and the jail is located a couple hundred yards from the main building. (Tr. 48.) The Defendant checked into the front desk where he was greeted by Detective Brown. (Tr. 21.) The Detective shook the Defendant's hand and thanked him for coming to the police station. (Tr. 22.) The Defendant accompanied Detective Brown to the interview room. (Tr. 22.) While walking there and just prior to turning on the audio recording device, Detective Brown made only small talk with the Defendant such as asking him how he was doing. (Tr. 24, 51.)
(Report and Recommendation at 2.) Upon reaching the interrogation room, the Detective confirmed that the Defendant understood, he was free to leave at any time, regardless of what he told the Detective that day. (TR at 2.)
The Defendant agrees that the Defendant was not summoned as a suspect, however, once the interrogation began, it soon became apparent that he was not only a suspect, he was subject to arrest for child molestation. The Detective told the Defendant, "I'm not here to play games or to take it one way or the other, but there's a situation where it come (sic) down with Rianna, okay, and her staying over at your place a few times and basically this is the situation, okay, with her statement, with other people's (sic) statement, (sic) okay, that I have right now, I have enough to put charges against you for child molestation, okay. And — now, everybody I've talked to and who I've had, there's plenty for me to go ahead and either arrest you or take a warrant out for your arrest." (TR at 13.)
As the Defendant correctly notes, "`If an individual voluntarily comes to the police station or another location and, once there, the circumstances become such that a reasonable person would not feel free to leave, the interrogation can become custodial.'" Kim, 292 F.3d 969, 975 (9th Cir. 2002). The Court finds that once the Detective told the Defendant he was subject to arrest, a reasonable person would not have felt free to leave.
In the very next breath, however, the Detective told the Defendant that he was not going to arrest him because he was going to give him a chance to say what happened. (TR at 14.) The Detective assured the Defendant that no matter what the Defendant said during the interview he would not be arrested that day. Id. at 15. The Detective said, "I'm not going to put you in jail —" Id. The Detective explained that an arrest would come further down the road. Id.
2. Extent to which Defendant was Confronted with Evidence of Guilt
The Detective described what he had discovered during his investigation and asked the Defendant, "is there anything you would like to talk to me about?" Id. at 14-17.
The Defendant responded by recounting his experience of being a convicted sex offender and questioned why his adult children would leave their children to spend the night at his home. Id. at 17-20. He complained about his wife's serious illness and related disinterest in him and that he had begun drinking and could not remember things. Id. at 24-25.
In pressing the Defendant for specifics of particular instances when the sexual molestation of his granddaughter occurred, the Detective reminded him that he could be arrested straight out. Id. at 30. But instead of police showing up at the Defendant's door, in front of his wife, and saying "turn around you're under arrest," the Defendant could go home and say his peace, do whatever he needed to do, say what he needed to say and handle it the best he could with his wife and family. Id. at 31. However, the Detective needed to know what happened or he would have to bring the Defendant in. Id. at 32. But, if the Defendant could honestly tell him that the facts were limited to the incidents as reported by the victim, then the Defendant could go home and the Detective would make his report to the prosecutor and then the case would move forward. Id. at 30-31. The Detective explained he was giving the Defendant a chance to tell what happened so that the prosecutor's charges could be so limited and not be any crazier than what it needed to be. Id. at 42, 44. At the conclusion of the interview, the Detective promised to let the Defendant know when the charges were issued by the prosecutor and to not just show up at his door with a SWAT teem, but instead call him and meet him some place. Id. at 53.
The Court finds that the Defendant was confronted with unequivocal evidence of his guilt sufficient to support an immediate arrest.
3. Physical Surroundings of Interrogation
Defendant was asked if he would mind coming to the police station. (TR at 18.) "When asked if he wanted to be interviewed at home or at the police station, the Defendant stated that the police station would be fine. (TR 19)" (Report and Recommendation at 2.) "The station is a secure facility and the jail is located a couple hundred yards from the main building. (Tr. 48.) The Defendant checked into the front desk where he was greeted by Detective Brown. (Tr. 21.) The Detective shook the Defendant's hand and thanked him for coming to the police station. (Tr. 22.) The Defendant accompanied Detective Brown to the interview room. (Tr. 22.)" (Report and Recommendation at 2.)
"The interview room was an eight by eight room equipped with a desk and three chairs. (Tr. 25.) No one sat in the third chair. ( Id.) Detective Brown was approximately five to six feet away from the Defendant during the interview. (Tr. 49.). The door was closed during questioning, but when Detective Brown left the room he left it open or ajar and advised the Defendant that there was water and a bathroom available. (Tr. 38.) Detective Brown asked the Defendant if there was anything he needed, such as something to drink, whether he needed to use the facilities or whether it was too hot or too cold in the room. (Tr. 27, 29, 38; Ex. 2, pp. 39-40.) The Defendant stayed in the interview room the whole time. (Tr. 38.)" (Report and Recommendation at 2-3.)
The Magistrate Judge found that there was nothing particularly intimidating about the physical surroundings of the police station, especially since the Defendant went there voluntarily. While the interview room was small, the Detective gave the Defendant space, and at all times had a courteous demeanor towards the Defendant. Id. at 8. "Detective Brown considered the Defendant his `tribal elder' and throughout the interview, treated him with that proper degree of respect." Id. On the one occasion the Detective believed he was acting too aggressively, he apologized to the Defendant. Id. "Although the Defendant was questioned at the police station, the physical surroundings of the interrogation suggest that the Defendant was not in custody." Id.
While the factors noted by the Magistrate Judge offset the custodial aspects of the physical surroundings, the Court agrees with the Defendant that the police station was a secure facility, and if Defendant wanted to leave he needed an escort. The police station was a police dominated environment. The door was closed during the interrogation and Defendant was alone in the interrogation room with the Detective, who was much larger, younger, and more physically fit than the Defendant.
4. Duration of Detention
As noted by the Magistrate Judge the one hour and 45 minute detention was longer than the interview found to be custodial in United States v. Beraun-Panez, 812 F.2d 578, 579 (9th Cir. 1987) (estimating the interview lasted half an hour to an hour and a half). The interrogation lasted until it became apparent that the Defendant was not going to make further incriminating statements or write out anything. (TR at 48 (describing the defendant as responding that he had told all he could remember)). In the end, the Detective terminated the interrogation by telling the Defendant, "All right, Mr. Antone. I won't hold you any longer. . . ." (TR at 54). The questioning of the Defendant at issue in this case was not a brief inquiry, it was a full fledged interrogation into the allegations of child molestation, specifically as alleged by the victim.
5. Degree of Pressure Applied to Detain Defendant
The pressure applied to detain the Defendant was psychological, which is just as binding under Miranda as physical restraints in determining if someone is in custody. Beraun-Panez, 812 F.2d at 579. The Defendant was repeatedly told that he was going to be allowed to leave, and he would not be arrested that day. But, he was also told that he could only remain out of custody until a later time when charges were formally filed against him and he would only be allowed to "turn himself in" instead of having law enforcement arrest him at his home, if he talked to police and confirmed the incriminating allegations against him. The Detective new the Defendant's wife was suffering from a terminal illness and that the Defendant would want to spare her the pain of having police interview her and of his being arrested at their home. The Detective also told the Defendant that if he agreed to talk to the police it would assist him in the future by limiting the charges brought against him and securing leniency for his truthfulness down the road. Id. at 46, 48.
Miranda : Totality of the Circumstances
This is a case where the suspect was not formally taken into police custody so the question is whether he was deprived of his freedom of action in any significant way to render him "in custody." Stansbury, 511 U.S. at 322; see also California v. Beheler, 463 U.S. 1121, 1125 (1983) (describing a restraint on freedom of movement "of the degree associated with a formal arrest") ( per curiam) (quoting Mathiason, 429 U.S. at 495). The Court examines the totality of the circumstances and asks whether a reasonable person would have felt he was free to terminate the interrogation and leave.
The Court finds that "but for" the fact that the Defendant was unequivocally told at the very start of the interrogation that he was free to leave at any time and repeatedly told during the interrogation that he was not going to be arrested right away, all the relevant factors suggested the contrary. Soon after arriving at the police station it became clear that he had been summoned because he was going to be arrested for abusive sexual contact with a child. The Defendant found himself in a secured facility, isolated from others, and surrounded by a strong, albeit polite and respectful, police presence. He was subjected to a full-blown interrogation. He was confronted with strong evidence of his guilt and detained through psychological coercion by being told if he answered questions, things would go easier for him and his family. Specifically, he was told that if he confessed, the charges would be more limited and he could self-surrender rather than be arrested at his home.
The Court must determine whether a reasonable person being questioned under these circumstances would believe he was free to terminate the interrogation and leave at any time. Defendant was told he was free to leave at anytime at the beginning of the interview, before he was told that he was subject to being arrested for "child molestation." (TR at 14.) If the interrogation had proceeded thereafter, without the police telling him that he was not being placed under arrest, and he was not going to be arrested during or after the interrogation, the Court would find the interrogation became custodial.
In United States v. Crawford, 372 F.3d 1048 (9th Cir. 2004), the suspect was questioned at an FBI office. The agent repeated more than once during the interview that the suspect was not under arrest and was free to leave. The court found that the interrogation was not custodial: "Being aware of the freedom to depart, and in fact departing after questioning at a law enforcement office, suggest that the questioning was noncustodial." Id. at 1060. Additionally, the court was persuaded by the fact that the suspect "returned home at the end of the interview, without being arrested." Id.
In Crawford, the FBI office was admittedly a coercive environment, but the court found that questioning in such an environment does not amount to custodial interrogation when the suspect is told that he is not under arrest and is free to leave, and he does in fact leave without hindrance. Id. at 1059 (relying on Mathiason, 429 U.S. at 494-95). Additionally, being escorted by police to the station house for questioning as the target of a police investigation adds to the coercive environment, but these factors do not lead to a conclusion that the suspect was in custody. Id. at 1059 (relying on Beheler, 463 U.S. at 1125). In Crawford, the court held the most significant factor for resolving the question of custody was that the defendant was expressly told that he was not under arrest. Id. at 1060 (citing see United States v. LeBrun, 363 F.3d 715, 722 (8th Cir. 2004) (en banc) (concluding that the defendant was not in custody because among other things the officers told him that he was free to leave and that he would not be arrested and because he in fact was not arrested at the conclusion of the interview.)
This case is analogous to Crawford. The coercive aspects of the interrogation, reflected by the five factors addressed above, were insufficient to cause a reasonable person to believe he was not free to terminate the interrogation and leave at any time given the totality of the circumstances included express statements to him that he was free to do so, and he was not arrested and freely left after the interrogation.
Defendant's Objection 2: Voluntariness of Statements
Defendant argues that the psychological coercion employed by the police rendered his statements involuntary. Statements extracted by any sort of threat or violence, or obtained by any direct or implied promise, however slight, or by the exertion of any improper influence are not made voluntarily. Hutto v. Ross, 429 U.S. 28, 30 (1976) ( per curiam) (relying on Bram v. United States, 168 U.S. 532, 542-43 (1897)). Defendant argues that he was promised leniency because he was told that if he confirmed the details provided by the detective, he would only be charged with one count instead of 6-12 counts.
The Magistrate Judge properly noted that psychological coercion is just as likely as physical force to overbear a suspects will. (Report and Recommendation at 9 (citing Shotwell Manufacturing Co. v. United States, 371 U.S. 341, 347-48 (1963). To be improper a coercive promise must overbear the suspects will in light of all attendant circumstances. Id. (citing United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988)). A promise to inform a prosecutor about defendant's cooperation, even when combined with a promise to recommend leniency, does not necessarily render a statement involuntary. Id.
The Court finds that the Detective made it clear to the Defendant that charges would be brought against him for child molestation, but if he confirmed the one or two times as reported by the victim the charges would be so limited and "not any crazier" than need be. (TR at 37.) "Not for 6, 12 times that it happened in the past, but for what was turned in at this point in time." (TR at 41.) The Detective also promised that if the Defendant was willing to take care of everything then and there, the police would not need to talk to his wife as part of the investigation, and the Defendant would be arrested later after he had an opportunity to handle the situation with his wife and family as best he could and could basically turn himself in instead of being arrested at his home in front of his wife. (TR at 30-31, 53.) The Detective told the Defendant that if he would write his confession down then it would set in stone the truthfulness of his statements, "which will show upon you leniency wherever you go, and you know how that goes." (TR at 46.)
The Defendant did not put his confession in writing so if there was a promise of leniency it did not overbear the Defendant's will to not write out any incriminating statements. (Report and Recommendation at 10.) Additionally, the Court finds that the Detective's comment regarding leniency was more of a generalized suggestion, which under Leon Guerrero is not enough to render a statement involuntary.
The other promises made by the Detective are, however, more problematic under Leon Guerrero. In Leon Guerrero, the police told the defendant that his cooperation would be taken into consideration in the handling of his case. Leon Guerrero, 847 F.2d at 1367. The police "did not promise Guerrero any tangible benefit (e.g., no prosecution, reduced charges, or a recommendation of a lenient sentence)." Here, the Detective did make promises that were specific and tangible benefits.
The Detective told the Defendant that unless he told what happened and when it happened, the case would be open for further discussion, (TR at 30.) The Detective described specific advantages to the Defendant if he talked, which were that the Detective would right up a report and send it to the prosecutor to look at and go through and then charges would be made, and the Detective would not just show up at his door with his wife there. Id. Instead, the Defendant could return home now to make his peace with his family and decide how best he wanted to handle the situation. Id. at 31. But, if the Defendant didn't say what happened, then "its just left open," and the Detective would "have to take other avenues to bring [the Defendant] in —." Id. at 32.
Up until this point in the interrogation, the Defendant had been noncommital, saying he had begun drinking excessively and experiencing memory issues, so maybe it happened. Id. at 26, 29. After the promise to delay his arrest until after formal charges were brought and not arrest him at his home or involve his wife, he made the first unequivocal incriminating statement: "I don't think its really that many times. I don't know how many times she said it happened, but I just don't figure there was —." When the Defendant failed to volunteer specific details, the Detective told him there was a big difference between touching her a few times, over her clothes, id. at 36, and that he could help himself by telling what happened and when so that the investigation could be "nipped in the bud," id. at 37, and nothing brought up crazier than needed to be, id. at 41.
The Defendant agreed, "Yeah," confirming the Detective's presentation that he had rubbed her, . . ., on the breast or rubbed her in the vaginal area, over her clothing." Id. at 42.
The Detective explained, he needed to narrow it down to get a time frame so the charges would not go all the way back four or five years ago, making it six accounts. Id. at 43.
To which the Defendant responded, "Oh, no," and agreed, "Yeah," to the Detective's inquiry that there were only a few accounts, two accounts, less than a year ago, and then a few weeks prior. Id. The Defendant continued to confirm facts presented by the Detective, but to offer nothing on his own.
The Detective explained, "I want to make sure that your story is what I get from her and things are charged appropriately." Id. at 44. "Not for 6, 12 times that it happened in the past, but for what was turned in at this point in time." Id.
The Defendant insisted his memory was just bad, id. at 45, but continued to confirm representations made by the Detective. He never independently offered any factual details. Id. at 45-48. The Detective continued to press the Defendant for details by suggesting whatever he could tell him would help him in the future, id. at 46, and if he wrote it down it would get him "leniency wherever you go." Id. at 48. But, the interrogation ended, without the Defendant offering independent details of the crime or ever writing down any incriminating statements.
The Court finds that the promises to allow the Defendant to essentially self-surrender and to limit the charges to two incidents of touching over clothing were specific and tangible promises that appeared from the chronology of the interrogation to have had a causal connection to the Defendant's decision to make incriminating statements.
The Government bears the burden to prove by a preponderance of the evidence that the Defendant's inculpatory statements were made voluntarily before they can be admitted into evidence. Lego v. Twomey, 404 U.S. 477, 489 (1972). To be voluntary, "the confession [must be] the product of a free and deliberate choice rather than coercion or improper inducement." United States v. Doe, 155 F.3d 1070, 1074 (9th Cir. 1998).
The 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. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988); see Arizona v. Fulminante, 499 U.S. 279, (1991) (rejecting Bram prohibition against direct or implied promises, however slight, and instead approving a totality of the circumstances test for determining voluntariness of a confession).
The Court considers promises made by the police as a factor in assessing whether the Defendant's statements were made voluntarily. Additionally, the Court considers the fact that the Defendant had some knowledge regarding his rights because he had experience with the criminal justice system based on his prior prosecution and conviction for child sex abuse. United States v. Amano, 229 F.3d 801, 804-05 (9th Cir. 2000); Terrovona v. Kincheloe, 912 F.2d 1176, 1179 (9th Cir. 1990) (relying on North Carolina v. Butler, 441 U.S. 369, 373 (1979)).
At one time, the Defendant was a judge for the Tohono O'odham Nation, but the record is not clear regarding the extent, if any, of his legal training and/or experience.
The Court finds that the Detective's promise that charges against the Defendant would be limited if he admitted them is especially troubling because it was a specific and tangible promise of leniency and an implied threat of more serious charges if he did not confess. See: United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir. 1981) (rejecting claim that any improper promise in regard to early release had been made); Grades v. Boles, 398 F.2d 409, 412 (4th Cir. 1968) (finding confession involuntary when made in response to promise to not prosecute other felonies and not prosecute defendant as career criminal); State v. Strain, 779 P.2d 221, 226 (Utah 1989) (defendant guaranteed that if he admitted homicide, he would not be prosecuted for first degree murder), accord, State v. Rezk, 840 A.2d 758 (New Hampshire 2004) (confession was involuntary because made in response to officer's promise not to prosecute defendant for several offenses, including the one for which he was arrested, because this was so attractive an offer it was likely to strip the defendant of his capacity for self-determination).
The Court finds that the Defendant's will to not incriminate himself was overborne by the promise of a lenient charge, when combined with the hard and fast evidence against him, the imminency of his arrest, the promise to not drag the Defendant's wife into the investigation, to let him remain free until formal charges were brought, and to let him self-surrender without public humiliation. Consequently, the Court finds that under the circumstances the Defendant's statements were not voluntary after the coercive promise to limit the charges against him if he admitted them. Specifically, Defendant's statements made after line 15, page 41, of the transcript are suppressed.
Accordingly,
IT IS ORDERED that after a full and independent review of the record in respect to the Defendant's objections, the Magistrate Judge's Report and Recommendation is accepted and adopted as the findings of fact and conclusions of law of this Court in respect to a Miranda violation.
IT IS FURTHER ORDERED that Defendant's Motion to Suppress (document 42) is GRANTED as to statements made after line 15, page 41.
IT IS FURTHER ORDERED that this matter remains referred to Magistrate Judge Jacqueline Marshall for all pretrial proceedings and Report and Recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) and LR Civ. 72.1(a), Rules of Practice for the United States District Court, District of Arizona (Local Rules).