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United States v. Ibarra Gavino

United States District Court, D. Arizona

April 5, 2018

United States of America, Plaintiff,
v.
Jose Alonso Ibarra Gavino, Defendant.

          REPORT AND RECOMMENDATION

          Honorable Lynette C. Kmimins United States Magistrate Judge

         Pending before the Court is Defendant's Motion to Suppress Statements. (Doc. 34.) The government filed a response on February 20, 2018. (Doc. 40.) This matter came before the Court for a hearing and a report and recommendation as a result of a referral, pursuant to LRCrim 57.6. Evidence and argument were heard on March 7, 2018.[1] (Doc. 44.) This matter was submitted following oral argument at the conclusion of the hearing.

         Defendant alleges that he received an inadequate Miranda warning and his statement was involuntary. Having now considered the matter, the Magistrate Judge recommends that the District Court, after its independent review, grant Defendant's motion to suppress based on an inadequate Miranda waiver but find the statements were voluntarily made and are admissible for impeachment.

         I. FACTUAL BACKGROUND

         Defendant Jose Alonso Ibarra Gavino is charged with conspiracy to possess with intent to distribute and import methamphetamine, possession with intent to distribute methamphetamine and importation of methamphetamine. (Doc. 9.) On August 10, 2017, at approximately 6:00 a.m., Defendant entered the United States from Mexico through the DeConcini Port of Entry in Nogales, Arizona where a subsequent search of his vehicle revealed 16.92 kilograms of methamphetamine. (Doc. 9; Ex. 1 at 74.)

         Customs and Border Protection Task Force Officer (TFO) Miguel Ortiz testified that, at approximately 9:00 a.m., he began the interview process with Defendant in Spanish. (RT at 8; Ex. 2 (DVD of Interview).) TFO Ortiz asked Defendant if he needed the bathroom or would like any water. (Ex. 1 at 1:6.)[2] TFO Ortiz then introduced himself and TFO Valenzuela and gathered basic biographical information from Defendant. (Ex. 1 at 4-6.) After several minutes, TFO Ortiz read Defendant his rights from the written form:

So, I'm going to read you your rights because we have to read your rights. Before asking you any questions, it is my duty to inform you about your rights. You have the right to remain silent. Anything you say can be used against you in a court of law or in another judicial proceeding. You have the right to consult- to consult with an attorney before making any statement or answering any question. You have the right to have an attorney be present during the questioning. Uh- If you can't pay for an attorney one will be given to you before- gave it to if you so wish. If you wish to answer the questions now, you still have the right to stop the questioning at any time or to stop the questioning in order to cons- consult an- an attorney.

(Ex. 1 at 7:5-14.)

         Defendant acknowledged the reading of the rights with, “I did understand you, man.” (Ex. 1 at 7:16.) TFO Ortiz then instructed Defendant to read aloud and initial each line of the Miranda warning that he understood. (Ex. 1 at 7:17-18; Ex. 3.) Defendant did read aloud and initial each line; however, when he read aloud about his right to have an attorney present during questions, he asked TFO Ortiz, “Do you have attorneys?” (Ex. 1 at 7:21-23, 8:1-4.) TFO Ortiz responded with, “Here right now, right now, no.” (Ex. 1 at 8:5.) Defendant then read and initialed the remaining warnings, wherein TFO Ortiz asked if he understood them and Defendant gave an affirmative response. (Ex. 1 at 8:6-11.) Thereafter, the following exchange occurred between TFO Ortiz (the questioner) and Defendant Ibarra Gavino (the answerer):

Q O.k. Now, that question you asked me just now. We do not have uh here. You have to wait until tomorrow. Right now are you willing to- to answer our questions right now without an attorney?
A And what would happen if I answer them? Can they- that be used against me?
Q If you lie, yes.
A Ah, O.k. That's fine. No. It's fine.
Q O.k.
A Um- That's ...

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