Free Motion to Suppress Statements - District Court of California - California

Case 3:08-cr-00682-JLS

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GERALD T. McFADDEN (SBN 87446) Attorney at Law 2366 Front Street San Diego, CA 92101 (619) 338-0507 E-mail: [email protected] Attorney for Defendant JOSE PARADA-VELAZQUEZ

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HON. JANIS L. SAMMARTINO) UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) JOSE PARADA-VELAZQUEZ, ) ) Defendant. ) ______________________________) Crim. Case No. 08CR0682-07-JLS STATEMENT OF FACTS AND POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS

NCD: June 13, 2008 at 1:30 p.m.

I. STATEMENT OF FACTS The defendant, JOSE PARADA-VELAZQUEZ, is charged in this multi-count multiple defendant alien smuggling indictment as set out in the previously filed discovery motion at CR 50-2. While the defense does not yet have any discovery report regarding the arrest, it appears that the defendant was arrested on about March 12, 2008, on a warrant based on the indictment. While the defense does not yet have any discovery report regarding a search and seizure, the government has informally advised there may be such evidence. The defense requests leave to bring a motion if appropriate upon receipt of search information. While the defense does not yet have any discovery report -- including a copy of Miranda warnings or waiver thereof -- the defense has received a video of post-arrest questioning. Based on the video itself, it is unlikely that the defendant's post-arrest custodial questioning was not preceded by a knowing and intelligent waiver of his privilege against self-incrimination and his right to

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retained or court-appointed counsel. The video of the post-arrest questioning shows that immediately after the law enforcement agent reads the defendant rights in Spanish; the defendant asks am I going to talk to an attorney and the agent responds no, right now do you understand your rights. And the interrogating agent never directly revisited the matter. (See the attached declaration of Investigator Alejandro Amigo). II. POINTS AND AUTHORITIES A. MOTION TO SUPPRESS STATEMENTS MADE BY THE DEFENDANT AS OF

THE TIME THE DEFENDANT WAS IN CUSTODY 1. Introduction

The defense moves to suppress any and all statements of defendant after custody and any fruits thereof on Miranda, and voluntariness grounds. The declarations of the defendant and Spanish-speaking investigator Alex Amigo are attached. The defense requests that the motion to suppress be granted on the face of the record. Alternatively, the defense requests an evidentiary hearing. The declaration of the defendant alone demonstrates that the defendant was subjected to custodial interrogation, that questioning proceeded without the presence of an attorney, and a statement was taken. As a result, as a matter of constitutional law, the government must meet a "heavy burden" of demonstration that "the defendant knowing and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Miranda v. Arizona, 384 U.S. 436, 475 (1966). 2.. Miranda

An individual is in custody when, under the circumstances, "a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave." Thompson v. Keohane, 516 U.S. 99, __, 116 S.Ct. 457, 465 (1995). The Government must prove that this defendant knowingly, intelligently, and voluntarily waived his rights against self-incrimination and to counsel, and must prove that the statements taken from this defendant were obtained in compliance with the defendant's Fifth and Sixth Amendment

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rights in the context of custodial interrogation. Miranda v. Arizona, supra, 384 U.S. 436, 445, 86 S.Ct. 1602, 1612, 16 L.Ed. 694 (1966). "Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against selfincrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must 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. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned." Id. at 384 U.S. at 445, 86 S.Ct. at 1612, 16 LED.2d at 706-07. (Footnote omitted.) (Emphasis added.) "If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. This Court has always set high standards of proof for the waiver of constitutional rights, and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders." Id., 384 U.S. at 475, 86 S.Ct. at 1628. (Citation omitted.) (Emphasis added.) The failure to advise a defendant that anything said "can and will" be used against you render warnings inadequate. As the Ninth Circuit stated in Collazo v. Estelle, 940 F.2d 411, 418 (9th Cir. 1991) (en banc), cert. denied, 112 S.Ct. 870 (1992): "Miranda's stated purpose [is] of making `the individual more acutely aware that he is faced with a phase of the adversary system - that he is not in the presence of persons acting solely in his interest.'"

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The Court referenced that part of the Miranda decision where the Supreme Court stated: "The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system--that he is not in the presence of persons acting solely in his interest." Miranda v. Arizona, 348 U.S. 436, 469 (1966). (Emphasis added.) Under the circumstances here, the questions were reasonably likely to elicit an incriminating response from the suspect when they were asked; and so, had to be preceded by Miranda warnings. United States v. Mata-Abundiz, 717 F.2d 1277 (9th Cir. 1983). Finally, in the absence of discovery, it is unknown if Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601 (2004) is applicable. The Court must suppress the post warning confession obtained during a deliberate two-step interrogation -- within the meaning of Seibert -- where the midstream Miranda warning was objectively ineffective to apprise the suspect of his rights. United States v. Williams, 435 F.3d 1148, 1150, 1159 (9th Cir. Jan. 30, 2006). Voluntariness. Before a confession or any self-incriminating statement made orally or in writing is admissible in evidence, the Court must determine that the confession was given voluntarily. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 LED 2d 618 (1972); 18 U.S.C. §3501(a). The government bears the burden of establishing the confession's voluntariness. Lego v. Twomey, supra; United States v. Jenkins, 938 F.2d 934, 937 (9th Cir. 1991). "The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker: If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process." Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 LED 2d 854 (1973). United States v. Jenkins, 938 F.2d 934, 938 (9th Cir. 1991). Also "the admissibility of a confession turns as much on whether the techniques for extracting the statements ... are compatible with a system that presumes innocence and assures that a

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conviction will not be secured by inquisitorial means as on whether the defendant's will was in fact overborne." Miller v. Fenton, 474 U.S. 104, 116, 106 S.Ct. 445, 452, 88 LED. 2d 405 (1985); United States v. Jenkins, supra. In considering whether a confession is voluntary the Court must take into consideration all the circumstances surrounding the giving of the confession. Schneckloth v. Bustamonte, 412 U.S. 218, 226-27, 93 S.Ct. 2041, 2047, 36 LED. 2d 854 (1973); 18 U.S.C. §3501(b). Relevant factors include past history, education, delay, threats, and promises. An unlawful arrest is a relevant factor. A Court must specifically consider the following five factors under 3501(b): (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession. B. DATE. The defense requests leave to file further pretrial motions and a further hearing date as the facts are further developed and the defense has had the opportunity to review additional discovery. III. CONCLUSION For these reasons and any further reasons which come to this Court's attention prior to or at the time of the hearing of these motions, counsel respectfully requests that this Court grant these motions. Respectfully submitted, LEAVE TO FILE FURTHER PRETRIAL MOTIONS AND FURTHER HEARING

Dated: May 30, 2008

s/Gerald T. McFadden GERALD T. McFADDEN, Attorney for Defendant JOSE PARADA-VELAZQUEZ E-mail: [email protected]

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