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United States v. Zapien

United States District Court, Ninth Circuit

November 6, 2013

United States of America, Plaintiff,
v.
Brigido Luna Zapien, Defendant.

ORDER

DAVID C. BURY, District Judge.

This matter was referred to the United States Magistrate Judge pursuant to 28 U.S.C. ยง 636(b)(1)(B) and the local rules of practice of this Court for an evidentiary hearing and a Report and Recommendation (R&R) on the Defendant's Motions to Suppress. Before the Court is the Magistrate Judge's Report and Recommendation on the Defendant's Motions to Suppress. The Magistrate Judge recommends to the Court that the Motions to Suppress should be denied. The Defendant filed an Objection to this Recommendation and the Government filed a Response.

OBJECTIONS

Defendant generally objects to the recommendation to deny the "Motion to Suppress Statements Evidence for Fourth Amendment Violation" (Doc. 147). (Objection at 2.) Defendant did not file specific written objections to the R&R with reference to this motion.

Defendant specifically lodges objections to the recommendation to deny the "Motion to Suppress Statements and Evidence for Miranda [1] Violation and Involuntariness" (Doc. 148). (Objection at 2-7.) Defendant objects to the R&R's conclusion that the facts and evidence support a recommendation that no Miranda violation occurred. United States v. Foster, 227 F.3d 1096, 1103 (9th Cir. 2000). Defendant primarily questions the credibility of the testifying agents. Defendant alleges that Defendant unequivocally invoked his right to silence and to counsel, yet there was no cessation of the questioning at all. Defendant alleges that agents continued to question him, stating that he was required to answer their questions to complete a DEA form 202.

STANDARD OF REVIEW

When specific written timely objection is made to the findings and recommendation of a magistrate judge, the district court must conduct a de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

DISCUSSION

Defendant Luna Zapien is charged with count 1, violations of 21:846, and count 2, violations of 21:841(a)(1) and 841(b)(1)(A)(vii), conspiracy to possess with intent to distribute methamphetamine and possession with intent to distribute methamphetamine.

The Magistrate Judge conducted an evidentiary hearing and heard the testimony of three witnesses: Special Agent (DEA) Sousa, Officer Navarrete (Town of Sahuarita Police Department), and TFO (DEA/Nogales Police Department) Ramirez.

As to the Miranda issue, the R&R reads, in pertinent part:

Because Agent Souza did not speak Spanish, TFO Ramirez, a Spanish speaker, initiated the questioning of Defendant Luna Zapien who did not speak English. ([ Tr. ] at pp. 135-36, 147; see also id at pp. 160-61 (TFO Ramirez "was getting questions from Agent Dorado [who spoke Spanish] and Agent Souza to ask the defendant.")). Prior to questioning, TFO Ramirez read to Defendant Luna Zapien his Miranda rights in Spanishfrom a plastic wallet card. ( Id. at pp. 136-37). TFO Ramirez did not have a form for Defendant Luna Zapien to sign to indicate he waived his rights, nor did TFO Ramirez ask for such a form. ( Id. at pp. 136, 160). Agent Souza testified that neither he nor Agent Dorado nor the other agents had the form DEA uses to advise of Miranda rights. ( Id. at p. 76). After being informed of his Miranda rights, Defendant Luna Zapien indicated he understood his rights and that he was willing to speak with the officers without an attorney. ( Id. at p. 137). When asked about his involvement in narcotics trafficking, Defendant Luna Zapien denied any involvement in the sale or purchasing of narcotics. ( Id. ). TFO Ramirez then informed Defendant Luna Zapien that "I had information and evidence that he was involved, " and at that point Defendant Luna Zapien informed he would not answer further questions without the presence of an attorney and the interview was terminated. ( Id. at p. 138). Defendant Luna Zapien invoked his right to counsel five minutes after questioning had begun. ( Id. at pp. 82-83). At some point after Defendant Luna Zapien requested an attorney, TFO Ramirez stated that he "needed to get some biographical information" for DEA Form 202, which requires information such as name, birth date, residence, "his wife, parents... if he has kids." ( Id. at pp. 138-39). About this exchange, TFO Ramirez testified as follows:
Q [Prosecutor:] Okay. And Did he voluntarily ...

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