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United States v. Nevarez

United States District Court, Ninth Circuit

October 13, 2013

United States of America, Plaintiff,
v.
Jesus Ruben Nevarez, Defendant.

ORDER

CINDY K. JORGENSON, District Judge.

On September 13, 2013, Magistrate Judge Leslie A. Bowman issued a Report and Recommendation, (Doc. 56), in which she recommended denying Defendant's Motions to Suppress Statements. (Docs. 37, 45). On September 24, 2013, the government filed a Notice of No Objection to the Report and Recommendation. (Doc. 59). Defendant filed an Objection to the Report and Recommendation on September 27, 2013. (Doc. 63). On October 2, 2013, the government filed a response to Defendant's objections.

I. STANDARD OF REVIEW

The Court reviews de novo the objected-to portions of the Report and Recommendation. 28 U.S.C. ยง 636(b)(1); Fed.R.Civ.P. 72(b). The Court reviews for clear error the un-objected to portions of the Report and Recommendation. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); See also Conley v. Crabtree, 14 F.Supp.2d 1203, 1204 (D.Or.1998).

II. FACTUAL BACKGROUND

On September 3, 2013, Magistrate Judge Bowman conducted an evidentiary hearing. Customs and Border Protection Officers Gilbert Guerra, Marco Antonio Estrada Jr., Francisco Hernandez, and Thomas Vader testified for the government. The Defendant testified in his own defense.

According to the witness' testimony, on January 10, 2013, the Defendant and a child attempted to enter the United States through the Nogales, Arizona Port of Entry. At approximately 10:30 a.m., Officer Hernandez was informed that the Defendant had been detained on suspicion of attempting to smuggle the minor into the country. Officer Hernandez approached the Defendant and asked him in Spanish "do you know what you were doing was illegal." (Doc. 57 at p. 49). The Defendant responded in the affirmative. Officer Hernandez then asked the Defendant where he was planning on taking the child and how much he was going to get paid. The Defendant responded that he did not know how much he would be paid.[1] (Doc. 57 at p. 50). At this point, the Defendant had not been read Miranda warnings.

The Defendant confirmed that Officer Hernandez asked him these questions. However, the Defendant also alleged that Officer Hernandez told him that he would go to jail for five years as a result of his actions.[2] (Doc. 57 at p. 87-88). This conversation lasted approximately two minutes and after it was concluded, Officer Hernandez escorted the Defendant to the passport control unit. Officer Hernandez was not present for any subsequent interrogation of the Defendant. (Doc. 57 at p. 57).

At approximately 11:45 a.m., Officer Guerra met with the Defendant and read him Miranda warnings in Spanish for the first time. (Doc. 57 at p. 16). After he read the warnings, Officer Guerra permitted the Defendant to read the written Spanish warnings himself. (Doc. 57 at p. 18). The Defendant acknowledged that he understood his rights and was willing to answer questions. (Doc. 57 at p. 19). The Defendant then signed the Miranda warnings form. (Doc. 57 at p. 18). After confirming that the Defendant understood his Miranda warnings, Officer Guerra placed the Defendant into a holding cell and was not involved in any further interrogation of the Defendant. (Doc. 57 at p. 20).

At some point after the Defendant was read his Miranda warnings by Officer Guerra, Officer Vader interrogated the Defendant. (Doc. 57 at p. 61-62, 64). Prior to conducting the interview, Officer Vader confirmed that the Defendant had been read and understood his Miranda rights. (Doc. 57 at p. 64). Officer Vader then asked the Defendant if he wanted to answer questions to which the Defendant responded in the affirmative. (Doc. 57 at p. 64). During the interview, the Defendant was in shackles. However, he was not handcuffed. (Doc. 57 at p. 63). Initially, the Defendant denied any wrongdoing. However, after Officer Vader told the Defendant that it would be beneficial to him should he go before a Judge if he would just tell the truth, the Defendant changed his story and acknowledged that he had just picked the child up at a hotel and was supposed to deliver him to a shuttle for money. (Doc. 57 at p. 65-66). Officer Vader did not threaten or make any promises to the Defendant. He never told the Defendant he was going to jail, he did not raise his voice or become angry, the Defendant did not appear to have any physical or mental disabilities and was not under the influence of any drugs or alcohol at the time of the interrogation. (Doc. 57 at p. 66-67). The Defendant did not request any breaks during the interrogation which lasted approximately 40 minutes. (Doc. 57 at p. 68-70).

The Defendant testified and explained that on January 10, 2013, he was 19 years old and had never been arrested. (Doc. 57 at p. 84). As he was attempting to pass through the port of entry into the United States, he was taken to a small room where Officer Hernandez spoke with him. The Defendant was then brought to another area, his belongings were removed from him and he was placed in a holding cell. He acknowledged that after he spoke with Officer Hernandez, he was read his Miranda rights and he signed a form acknowledging that he understood his rights. (Doc. 57 at p. 114-120). Subsequently Officer Vader interviewed him. The Defendant contends that he was scared. However, he acknowledged that at the time of his arrest, he was in good physical and mental health, he was not taking any medications, he was never threatened or promised anything by the officers, and he was not under the influence of any drugs or alcohol at the time of the interrogation. (Doc. 57 at p. 113, 124).

II. ANALYSIS

Defendant's Objections

Defendant objects to the Magistrate Judge's finding that the Defendant's statements were voluntary and that the statements made to Customs and Border Protection (CBP) Officer Thomas Vader were given ...


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