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United States v. Ramos-Zepeda

United States District Court, D. Arizona

April 29, 2016

United States of America, Plaintiff,
v.
Ramon Ramos-Zepeda, Defendant.

REPORT AND RECOMMENDATION

Honorable Bruce G. Macdonald United States Magistrate Judge

Currently pending before the Court is Defendant Ramon Ramos-Zepeda’s Motion to Suppress Statements (Doc. 37). The Government has filed its Response (Doc. 53). Govt.’s Response to Def.’s Mot. to Suppress Statements (Doc. 53). No reply has been filed. Also pending is Defendant’s Amended Motion to Dismiss Indictment for Unlawful Exclusion Under Title 8 U.S.C. § 1326(d) (Doc. 29). The Government filed its Amended Response (Doc. 31) and Defendant replied (Doc. 33). Defendant is charged with one count of illegal re-entry after deportation in violation of Title 8, United States Code, Section 1326. Indictment (Doc. 6) at 1. Defendant Ramon Ramos-Zepeda seeks suppression of his statements allegedly obtained in violation of his Miranda[1] rights. See Def.’s Mot. to Suppress Statements (Doc. 37). Defendant additionally seeks dismissal of the Indictment because the previous order of removal against him was allegedly based on an unlawful exclusion. See Def.’s Amended Mot. to Dismiss Indictment for Unlawful Exclusion Under Title 8 U.S.C. §1326(d) (Doc. 29).

Pursuant to LRCrim. 5.1, this matter came before Magistrate Judge Macdonald for an evidentiary hearing and a report and recommendation. On February 19, 2016, an evidentiary hearing was held before Magistrate Judge Macdonald regarding the two motions. Minute Entry 2/19/2016 (Doc. 49). The hearing was continued on March 7, 2016 and concluded on March 8, 2016. Minute Entry 3/7/2016 (Doc. 70); Minute Entry 3/8/2016 (Doc. 74). The Magistrate Judge recommends that the District Court, after its independent review, deny Defendant’s motions.

I. FACTUAL BACKGROUND

A. The 2009 Encounter

1. Initial Stop

On January 9, 2009 at approximately 8:00 a.m., Defendant Ramon Ramos-Zepeda entered the United States from Mexico near Naco, Arizona. Hr’g Tr. 2/19/2016 (Doc. 79) 79:12-20; Hr’g Tr. 3/7/2016 (Doc. 77) 79:3-21. On January 12, 2009, United States Border Patrol (“USBP”) Agent Jorge Borrego processed Defendant for expedited removal. Hr’g Tr. 2/19/2016 (Doc. 79) 77:15-78:2, 79:21-23; see also Hr’g Tr. 3/7/2016 (Doc. 77) 82:19-83:1. Although Defendant Ramos-Zepeda entered the United States on January 9, 2009, he was not apprehended until January 12, 2009. Hr’g Tr. 2/19/2016 (Doc. 79) 79:24-80:17; Hr’g Tr. 3/7/2016 (Doc. 77) 79:3-25; see also Hr’g Tr. 3/8/2016 (Doc. 78) 6:6-16. Agent Borrego has worked for the U.S. Border Patrol for just over eight (8) years. Id. at 64:4-7; Hr’g Tr. 3/7/2016 (Doc. 77) 4:9-11. Agent Borrego completed basic and field training, as well as post-academy training. Hr’g Tr. 2/19/2016 (Doc. 79) 64:8-66:13; see also Hr’g Tr. 3/7/2016 (Doc. 77) 4:12-16. Additionally, Agent Borrego has spoken Spanish since childhood. Hr’g Tr. 2/19/2016 (Doc. 79) 64:21-65:5. Agent Borrego has had specialty assignments including a detail in Tucson, Arizona as a processing agent, as well as a case agent. Id. at 66:14-67:1; see also Hr’g Tr. 3/7/2016 (Doc. 77) 5:11-20.

Agent Borrego described his experience as a processing agent, explaining that when an individual is apprehended, they are then brought to a processing center. Hr’g Tr. 2/19/2016 (Doc. 79) 67:2-19. Agent Borrego testified that agents in the field would collect biographical information from an individual and complete a field I-826 reflecting that information. Id. at 67:2-68:1. The field I-826 is then given to the processing agent. Id. 67:20-68:4, 69:12-15. At the station agents will run fingerprints and take a photograph of the individual. Id. at 67:14-68:18, 69:16-21, 70:14-24. Agent Borrego testified that agents consider an individual’s criminal history, their immigration history, and whether they have a claim to being admissible to the United States. Id. at 68:11- 69:11. The processing agent then inputs information regarding the individual into an E3. Hr’g Tr. 2/19/2016 (Doc. 79) 69:70:3; Hr’g Tr. 3/7/2016 (Doc. 77) 51:23-52:1. Agent Borrego further testified that when entering information into the E3 form, he does so with the individual standing in front him, going through each page of information with them. Hr’g Tr. 2/19/2016 (Doc. 79) 70:4-10. As part of his processing, Agent Borrego verifies the name and date of birth of the individual, comparing the information with the field I-826. Id. at 70:25-71:9. Agent Borrego also confirms that the photograph represents the individual standing in front of him. Id. at 71:10-13, 75:14-18.

Agent Borrego also testified that he inputs information obtained from the individual on an I-213 form. Hr’g Tr. 2/19/2016 (Doc. 79) 72:4-74:18; Hr’g Tr. 3/7/2016 (Doc. 77) 18:10-11. Agent Borrego verifies the information received on the I-826 form, confirms that the individual has no credible fear, and confirms that they have a claim which may allow them to be in the United States.[2] Hr’g Tr. 2/19/2016 (Doc. 79) 71:14-74:6. These variables, as well as criminal history and immigration history impact the way an individual will be processed. Id. If an individual refuses to answer a question, Agent Borrego will note that the individual “Failed to respond” or something similar on the form. Id. at 74:19-22. Other information obtained from the individual includes their height and weight, country of origin, how they entered the United States, and a United States address if they have one. Id. at 75:19-76:9.

Agent Borrego testified that he processed Defendant Ramos-Zepeda pursuant to this procedure on January 12, 2009. Hr’g Tr. 2/19/2016 (Doc. 79) 77:22-78:2; Hr’g Tr. 3/7/2016 (Doc. 77) 18:22-19:20, 57:4-16, 82:19-83:1. Defendant Ramos-Zepeda confirmed that Agent Borrego took his information and put it in the computer system. Hr’g Tr. 3/8/2016 (Doc. 78) 9:22-10:14. Agent Borrego further testified that he matched the photo with the person being processed and asked Defendant Ramos-Zepeda biographical questions. Hr’g Tr. 2/19/2016 (Doc. 79) 78:14-25, 92:17-93:14. Defendant Ramos-Zepeda informed Agent Borrego that he was a Mexican national and entered the United States near Naco, Arizona on January 9, 2009 at approximately 8:00 a.m., and was apprehended on January 12, 2009. Id. at 79:3-80:3, 102:10-16; Hr’g Tr. 3/7/2016 (Doc. 77) 20:12-21:24, 31:10-19, 79:3-25. Agent Borrego testified that the information provided by Defendant Ramos-Zepeda was consistent with the information provided on the field I-826 form. Hr’g Tr. 2/19/2016 (Doc. 79) 80:4-13, 85:16-86:13. Agent Borrego further testified that he received a criminal history regarding Defendant Ramos-Zepeda, including an outstanding warrant stemming from a May 23, 2006 conviction in Redwood City, California. Id. at 82:8-83:22; Hr’g Tr. 3/7/2016 (Doc. 77) 30:21-24, 57:14-16. Agent Borrego also testified that this outstanding warrant would have made Defendant Ramos-Zepeda ineligible for a voluntary return. Hr’g Tr. 2/19/2016 (Doc. 79) 83:19-22.

Agent Borrego testified that an individual is eligible for expedited removal, when he or she has entered the United States without going through a port of entry and is apprehended within fourteen (14) days of such entry and within one hundred (100) miles of the border. Hr’g Tr. 2/19/2016 (Doc. 79) 84:13-85:15; see also Hr’g Tr. 3/7/2016 (Doc. 77) 58:22-25, 79:5-8. Agent Borrego further testified that the expedited removal process is an administrative proceeding, during which he obtains a sworn statement from the individual being processed. Hr’g Tr. 2/19/2016 (Doc. 79) 87:14-15; see also Hr’g Tr. 3/7/2016 (Doc. 77) 6:11-7:9, 80:15-19. Prior to obtaining a statement, Agent Borrego testified that he informed Defendant Ramos-Zepeda regarding the expedited removal proceeding, including that Defendant Ramos-Zepeda did not appear to be admissible or have legal papers authorizing his admission into the United States and that as a result he may be denied admission and immediately returned to his home country without a hearing. Hr’g Tr. 2/19/2016 (Doc. 79) 98:5-99:4. Agent Borrego further testified that he informed Defendant Ramos-Zepeda that such removal may result in his being barred from reentry for a period of five (5) years or longer, and that Defendant Ramos-Zepeda appeared to understand this. Id. at 98:5-99:4, 103:11-19. Agent Borrego testified that he spoke with Defendant Ramos-Zepeda in Spanish while processing him for expedited removal. Id. at 88:16-90:18, 97:6-10; Hr’g Tr. 3/7/2016 (Doc. 77) 83:5-20. Defendant Ramos-Zepeda testified that he only speaks Spanish. Hr’g Tr. 3/8/2016 (Doc. 78) 14:20- 15:1. Agent Borrego also testified that he confirmed with his supervisor that expedited removal was appropriate for Defendant Ramos-Zepeda. Hr’g Tr. 2/19/2016 (Doc. 79) 81:21-82:3, 112:21-113:8. Defendant Ramos-Zepeda declined to speak with a consular representative during his immigration processing. Id. at 94:13-24. Agent Borrego testified that he informed Defendant Ramos-Zepeda that if he had fear or concern regarding removal from the United States, he would have an opportunity to speak with an officer for a determination regarding whether he should remain in the United States. Hr’g Tr. 2/19/2016 (Doc. 79) 100:9-101:14, 104:1-14. Defendant Ramos-Zepeda denies that he was ever asked whether he had fear about returning to his country. Hr’g Tr. 3/8/2016 (Doc. 78) 15:7-12. Agent Borrego also asked Defendant Ramos-Zepeda if there was anything that he would like to say or add. Hr’g Tr. 2/19/2016 (Doc. 79) 103:20-25. Based upon the information obtained from Defendant Ramos-Zepeda, it was determined that he was inadmissible to the United States and ordered removed. Hr’g Tr. 2/19/2016 (Doc. 79) 110:21-112:20; Hr’g Tr. 3/7/2016 (Doc. 77) 42:8-44:7, 77:9-78:12. Agent Borrego testified that he did not read Defendant Ramos-Zepeda his Miranda rights during processing, because USBP was not pursuing criminal prosecution. Hr’g Tr. 3/7/2016 (Doc. 77) 24:24-25:4, 58:9-16, 82:9-12. The document finding Defendant Ramos-Zepeda was explained to and served upon him. Hr’g Tr. 2/19/2016 (Doc. 79) 112:4-115:2; Hr’g Tr. 3/7/2016 (Doc. 77) 70:25-73:22, 84:9-85:20. Defendant Ramos-Zepeda testified that although he signed the forms, he did not read them because Agent Borrego told him that he was going to be extradited to California. Hr’g Tr. 3/8/2016 (Doc. 78) 10:15-11:-16. Defendant Ramos-Zepeda further testified that Agent Borrego did not read anything to him because “he was angry at me because of the problem that I had in California.” Id. at 11:17-12:1.

Agent Borrego also testified that upon determining that Defendant Ramos-Zepeda had an outstanding warrant, Border Patrol contacted the agency with the outstanding warrant to see if they wanted to seek extradition. Hr’g Tr. 2/19/2016 (Doc. 79) 113:9-20. Agent Borrego further testified that Redwood City, California indicated that they did wish to seek extradition. Id. After Defendant Ramos-Zepeda was processed, Agent Borrego put the file together and waited for the agency seeking extradition to take custody. Id. at 115:22-116:11. Agent Borrego testified that Santa Cruz County, Arizona took custody of Defendant Ramos-Zepeda for the extradition. Id. at 116:3-11. Defendant Ramos-Zepeda testified that he was in a cell for approximately four (4) hours, and then a policeman arrived and took him to Santa Cruz County. Hr’g Tr. 3/8/2016 (Doc. 78) 14:9-19, 15:11-16:19. Once Defendant Ramos-Zepeda was transferred to state custody, Agent Borrego sent the file to the file control office. Hr’g Tr. 2/19/2016 (Doc. 79) 12-14; Hr’g Tr. 3/7/2016 (Doc. 77) 62:2-15.

2. January 14-15, 2009

On January 14, 2009, Defendant Ramos-Zepeda was returned to USBP custody because San Mateo County, California denied extradition. Hr’g Tr. 3/7/2016 (Doc. 77) 66:1-17; see also Hr’g Tr. 3/8/2016 (Doc. 78) 17:1-20. Defendant Ramos-Zepeda was sent to the Sonoita, Arizona station. Hr’g Tr. 3/7/2016 (Doc. 77) 60:13-20, 66:1-17; Hr’g Tr. 3/8/2016 (Doc. 78) 17:21-18:4. The agents on duty were unable to locate the original file. Hr’g Tr. 3/7/2016 (Doc. 77) 66:1-17. As such, on January 15, 2009 at 2:00 a.m., the January 12, 2009 I-213, originally created by Agent Borrego was recreated by USBP Agent Anthony Rogers, who also (Doc. 77) 67:21-68:6. As a result, Defendant Ramos-Zepeda was processed for expedited removal and a new I-860 issued and was signed by acting field operations supervisor David Barker. Id. Because agents considered prosecuting Defendant Ramos-Zepeda criminally, he was read his Miranda rights. Id. at 67:21-68:10.

Defendant Ramos-Zepeda testified that upon his return to the Sonoita station an individual took his information again. Hr’g Tr. 3/8/2016 (Doc. 78) 19:2-11. Defendant Ramos-Zepeda further testified that this included his name, but he did not recall being re-fingerprinted or asked whether he had a credible fear of returning to his country. Id. at 19:8-20:5. Defendant Ramos-Zepeda also testified that no one reviewed the paperwork with him, and he only signed the forms because they were part of the processing. Id. at 20:6-18. Defendant Ramos-Zepeda thought that he was being sent to Tucson to see an immigration judge, which did not occur. Id. at 20:19-23. Defendant Ramos-Zepeda was removed to Mexico on January 15, 2009. Id. at 21:5-22:13.

B. The Current Charged Offense

1. The 2015 Encounter

At approximately midnight on May 1, 2015, United States Border Patrol (“USBP”) Agents Adam Letavay and Christopher Wagner were on duty near the Lukeville, Arizona port of entry. Hr’g Tr. 2/19/2016 (Doc. 79) 17:22-18:4, 47:14-25. Agent Letavay was assigned for a quick reactionary force at the port of entry, because there had been reports of violence further south on the Mexico side of the border, and a team of agents were assigned to be prepared if anything came north. Id. at 18:1-17. Agent Wagner indicated that he and the other agents were asked to stand by because the Ajo station had no mobile agents at that time. Id. at 47:21-25. Agents Letavay, Wagner, and Swickheimer were in a parking lot just north of the port of entry. Id. at 18-18-19:13.

Agent Letavay has been a USBP agent for approximately eight and one-half (8 1/2) years. Id. at 13:10-11, 34:18-20. He is currently detailed at the San Diego sector mobile response team. Id. at 13:3-6. Agent Letavay completed basic and field training prior to becoming a USBP agent, as well as post academy training. Hr’g Tr. 2/19/2016 (Doc. 79) 15:11-16:18, 34:1-17. Agent Letavay has also had specialty assignments as a border patrol agent, including the mobile response team. Id. ...


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