REPORT AND RECOMMENDATION
LESLIE A. BOWMAN, Magistrate Judge.
The District Court referred this case to the Magistrate Judge for a hearing on the defendant's motion to suppress statements. (Docs. 37, 45) The defendant, Jesus Ruben Nevarez, argues that his post-arrest statements must be suppressed because they were coerced and involuntary, in violation of his Due Process rights.
An evidentiary hearing was held on September 3, 2013. In closing remarks, the defense raised a Miranda issue, arguing that the defendant's initial custodial statements to Supervisory Customs and Border Protection (SCBP) Officer Francisco Hernandez were given without Miranda warnings and the statements given to Customs and Border Protection (CBP) Officer Thomas Vader post-Miranda were given without a voluntary waiver. CBP Officer Gilbert Guerra testified by video-teleconference. CBP Officers Marco Estrada, Francisco Hernandez and Thomas Vader testified, as did Defendant Jesus Ruben Nevarez. Exhibits 1 through 8 were admitted into evidence for purposes of the motion hearing only.
The defendant is charged by indictment in Count 1 with conspiracy to transport an illegal alien for profit, in violation of Title 8 United States Code §§ 1324(a)(1)(A)(ii), 1324(a)(1)(A)(v)(I), and 1324(a)(1)(B)(i); in Count 2 with attempting to bring in an undocumented juvenile for profit, in violation of Title 8 §§ 1324(a)(2) and 1324 (a)(2)(B)(ii); and in Count 3 with unlawfully using a U.S. passport of a juvenile person in the commission of a felony, in violation of Title 8 United States Code §§ 1321 et seq and Title 18 United States Code §§ 1028A(a), 1028A(b)(2) and 1028A(c)(10). (Doc. 5).
Motion to Suppress:
The defendant, Jesus Ruben Nevarez, argues his Due Process rights were violated because during a custodial interrogation he was administered Miranda warnings that he did not understand. He states that he gave a statement only after being threatened and intimidated by an angry U.S. Customs Officer. He claims that he is young, immature, inexperienced in the justice system and therefore his statements were involuntary and must be suppressed. The Court concludes the statements were voluntary and the statements made to CBP Officer Thomas Vader were given after proper Miranda warnings and a voluntary waiver. They are admissible at trial. The statements made to SCBP Officer Francisco Hernandez were custodial and given without Miranda warnings, in violation of the defendant's Fifth Amendment rights, and are inadmissable in the government's case-in-chief. The Court finds, however, that the statements were voluntary and may be used to impeach the defendant if he testifies.
Gilbert Guerra is a U.S. CBP Officer who has been stationed at the Nogales, AZ port of entry (POE) for the five years he has been an officer. On 1/10/13 he was working the 6:00 am to 2:00 pm shift. Guerra was contacted by officers who stated they had an alien smuggling case. Guerra does not remember who brought the defendant to him but when he met the defendant he asked if the defendant preferred to communicate in English or Spanish. The defendant chose Spanish.
At approximately 11:40 am, Guerra read the defendant his rights from the I-214 form. (Ex. 7) Guerra read the document word for word and then handed the rights form to the defendant to read for himself. Guerra asked the defendant if he understood his rights and was willing to answer questions. The defendant said he understood and signed the form. He signed approximately 15 minutes after he was brought to Guerra. The defendant was calm, was not in handcuffs, was shackled at the ankles, and made eye contact with Guerra. The defendant was sitting at a desk in the Passport Control Unit (PCU), which has 3 holding cells, 8 computers in a row, 12 seats, and bathrooms for the use of defendants being processed. (Ex. 4, 5, 6) The defendant appeared to have no physical or mental disabilities. He did not appear intoxicated.
The reading of the rights was not recorded. It never is, which is why there is always a witness. Guerra speaks Spanish every day, but he may have had trouble reading a couple of words on the rights form. After the defendant signed the form, Guerra placed the defendant in a holding cell to wait for another officer to process him.
Marco Estrada is a U.S. CBP Officer who has worked at the POE for 24 years. Currently he is an enforcement officer at the Morley Gate, which is for pedestrians only. On 1/10/13 Estrada may have transported the defendant to the U.S. Marshals. He took no statements from the defendant. He testified before the Grand Jury. Exhibits 1 through 6 were taken by Officer Guerra at Estrada's direction. Estrada described the physical layout of secondary inspection and the PCU. The PCU has four holding cells which all have a bench, cots, snacks, water, blankets, and temperature ...