United States District Court, D. Arizona
REPORT AND RECOMMENDATION
G. Macdonald United States Magistrate Judge
pending before the Court is Defendant Samuel
Cervantez-Hernandez's Motion to Dismiss (Doc. 23). The
Government has filed its response, as well as a Supplemental
Response. Govt.'s Response to Def.'s Mot. to Dismiss
(Doc. 42); Govt.'s Suppl. Response (Doc. 60). Defendant
is charged with one (1) count of conspiracy to possess with
intent to distribute marijuana and one (1) count of
possession of marijuana with intent to distribute. Indictment
(Doc. 18) at 1-2. Defendant Samuel Cervantez-Hernandez seeks
dismissal of the Indictment, because his primary language is
Cora and he speaks insufficient Spanish to adequately
communicate with counsel. See Def.'s Mot. to
Dismiss (Doc. 23).
to LRCrim. 5.1, this matter came before Magistrate Judge
Macdonald for an evidentiary hearing and a report and
recommendation. On January 26, 2018, an evidentiary hearing
was held before Magistrate Judge Macdonald regarding the
motion. Minute Entry 1/26/2018 (Doc. 62). This matter is ripe
for adjudication. The Magistrate Judge recommends that the
District Court, after its independent review, grant
The Incident Resulting in Arrest
August 14, 2017, an air asset advised agents that he saw four
(4) individuals that were suspected of smuggling marijuana
walking in the desert near Big Fields, Arizona. Compl. (Doc.
1) at 1; see also Case No. 17-00185MJ Compl. (Doc.
1). Agents were deployed in the area where the individuals
were last seen, searched the area, and discovered a total of
four (4) large backpacks of suspected marijuana concealed
under desert brush. Compl. (Doc. 1) at 1; see also
Case No. 17-00185MJ Compl. (Doc. 1). Agents continued to
search the surrounding area, and apprehended three (3)
individuals approximately two hundred (200) feet away from
the marijuana bundles. Compl. (Doc. 1) at 1; see
also Case No. 17-00185MJ Compl. (Doc. 1). These
individuals were Defendant Samuel Cervantez-Hernandez,
Otoniel Cleofas Escalante-Morales, and Adan De La
Fuente-Perez. Compl. (Doc. 1) at 1; see also Case
No. 17-00185MJ Compl. (Doc. 1). Defendant Cervantez-Hernandez
was read his Miranda rights in Spanish, as well as
interviewed in Spanish. See Govt.'s Resp. to
Def.'s Mot. to Dismiss (Doc. 42), Cervantez-Hernandez
Interview Tr. 8/14/2017 (Exh. “A”).
The Complaint and Initial Hearings
La Fuente-Perez was charged by complaint for conspiracy to
possess, with intent to distribute, approximately 80.96
kilograms of marijuana in violation of Title 21, United
States Code, Section 846. Case No. 17-00185MJ, Complaint
(Doc. 1). Defendant Cervantez-Hernandez and Otoniel Cleofas
Escalante-Morales were charge via complaint for conspiracy,
with intent to distribute, approximately 80.96 kilograms of
marijuana, as well as possession of approximately 20.24
kilograms of marijuana in violation of Title 21, United
States Code, Sections 846 and 844(a). Compl. (Doc. 1). On
August 15, 2017, all three (3) individuals went before
Magistrate Judge Eric J. Markovich for an initial appearance.
Minute Entry 8/15/2017 (Doc. 2); Case No. 17-00185MJ Minute
Entry 8/15/2017. All were assisted by a Spanish Interpreter,
who reported that Defendant Samuel Cervantez-Hernandez may
have a language issue. Minute Entry 8/15/2017 (Doc. 2). On
August 22, 2017, Defendant Samuel Cervantez-Hernandez was
brought before this Court for his Detention Hearing and
Preliminary Hearing. Minute Entry 8/22/2017 (Doc. 6). Defense
counsel advised the Court that Defendant's primary
language is Cora, and he is not a Spanish speaker.
Id. On September 13, 2017, Defendant
Cervantez-Hernandez and Adan De La Fuente-Perez were charged
in a two count indictment, including one (1) count of
conspiracy to possess with intent to distribute marijuana and
one (1) count of possession of marijuana with intent to
distribute. Indictment (Doc. 18) at 1-2.
The Evidentiary Hearing
January 26, 2018, an Evidentiary Hearing was held before
Magistrate Judge Bruce G. Macdonald. Minute Entry 1/26/2018
(Doc. 62). The Government did not call any witnesses, and
Defendant Cervantez-Hernandez called Dr. Abigail
Martinez-Sotelo as its only witness. Dr. Martinez-Sotelo is a
Spanish language teacher, and in that capacity assesses
individuals' Spanish language ability. Dr.
Martinez-Sotelo met with Defendant Cervantez-Hernandez for
approximately an hour at the Federal Correctional Institution
(“FCI”) in Tucson, Arizona.
Martínez-Sotelo testified that it was very difficult
for her to communicate with Defendant Cervantez-Hernandez in
Spanish, because his Spanish is very limited. Dr.
Martínez-Sotelo further opined that in reviewing the
video of Defendant Cervantez-Hernandez's interview with
Border Patrol, she found Defendant Cervantez-Hernandez did
not fully understand the questions asked of him. Dr.
Martínez-Sotelo also testified the Defendant
Cervantez-Hernandez did not finish elementary school, and
that his education occurred in the Cora language, with a
small amount of Spanish language in the curriculum. Dr.
Martínez-Sotelo acknowledged that Defendant
Cervantez-Hernandez was able to answer some questions posed
by Border Patrol; however, she also noted that agents often
had to repeat questions several times before Defendant
Cervantez-Hernandez was able to answer. Dr.
Martínez-Sotelo also stated that Defendant
Cervantez-Hernandez did not understand the Spanish term for
lawyer, although he was able to understand it when she used a
simpler word. Dr. Martínez-Sotelo characterized
Defendant Cervantez-Hernandez's Spanish language ability
as a low novice level, meaning that he could understand some
words, but had a limited, basic Spanish vocabulary.
seeks dismissal of the Indictment, because his primary
language is Cora and he speaks insufficient Spanish to
adequately communicate with counsel. See Def.'s
Mot. to Dismiss (Doc. 23). The Government asserts that
Defendant speaks sufficient Spanish to continue in this
litigation, as evidenced by the transcript of his interview
with Border Patrol. Govt.'s Response (Doc. 42) at 4 &
Exh. “A.” Defendant's attorney, ...