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United States v. Aguilar

United States District Court, D. Arizona

May 14, 2018

United States of America, Plaintiff,
Abelardo Aguilar, Defendant.



         Pending before the Court is Defendant's Motion to Suppress or Preclude Evidence. (Doc. 51.) The government filed a response (Doc. 57), and Defendant replied (Doc. 59). 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 April 18, 2018 (Doc. 75), [1] after which the Court took the matter under advisement. Trial is currently set for June 26, 2018. (Doc. 70.)

         Defendant contends that his Miranda waiver was not knowing, intelligent and voluntary and his statement was not voluntary. Additionally, Defendant argues that the statements from the interrogation are unreliable, inadmissible hearsay and prejudicial under Rule 403. The Magistrate Judge recommends that the District Court, after its independent review, deny Defendant's motion to suppress his statements in entirety but grant preclusion of the agents' statements in English.


         Defendant Abelardo Aguilar is charged with Conspiracy to Possess with Intent to Distribute Methamphetamine, Possession with Intent to Distribute Methamphetamine, Conspiracy to Import Methamphetamine, and Importation of Methamphetamine in violation of 21 U.S.C. Sections 846, 841, 963, 952 and 960. (Doc. 9.) On October 28, 2016, at approximately 12:00 p.m., Defendant Aguilar presented himself for entry into the United States from Mexico as a pedestrian, at the Morley Gate Port of Entry in Nogales, Arizona. A subsequent search of plastic bags he was carrying revealed 1.36 kilograms of methamphetamine hidden in stacks of hollowed-out tortillas. Defendant denied knowledge of the drugs. (Docs. 1, 9; Exs. 6, 24.[2])

         Homeland Security Investigations (HSI) Customs and Border Protection Task Force Officer (TFO) Oswaldo Bustamante testified that he participated in an interview of Defendant Aguilar on October 28, 2016, at the DeConcini Port of Entry with HSI Special Agent Christopher Woods. (RT at 11; Ex. 19 at 1.)[3] Prior to entering the interview room, Defendant Aguilar was asked if he needed to use the restroom or would like some water. (RT at 21.) Agent Woods and TFO Bustamante were both dressed in street clothes with their weapons concealed. (RT at 29.) Defendant was not restrained. (RT at 22.) The interview began at approximately 1:30 p.m., in a 12 by 12 foot interview room with a desk and four chairs. (RT at 11.) TFO Bustamante testified that he participated in the interview as a translator and to assist the case agent as part of the task force team assigned to the investigation. (RT at 12, 33, 43-44.) He also testified that he is a law enforcement officer with experience interviewing suspects. (RT at 12.) The interview lasted approximately one hour and took place about one-and-a-half hours after Defendant's arrest. (RT at 12; Exs. 6, 18, 19, 24.)

         The interview of Defendant Aguilar was conducted in Spanish by TFO Bustamante. (RT at 13.) TFO Bustamante grew up speaking Spanish, took a Spanish community college course, and has spoken Spanish daily for 22 years as a law enforcement officer working in Nogales and Sasabe, Arizona. (RT at 13-14.) TFO Bustamante is certified by the Department of Homeland Security to conduct official business in the Spanish language.[4] (RT at 15.) As part of TFO Bustamante's duties, he has communicated with, and given presentations to, law enforcement counterparts from Mexico in Spanish. (RT at 17-18.) Defendant Aguilar is a native Spanish speaker and never indicated to TFO Bustamante that he did not understand his Spanish. (RT at 18.) At limited times during the interview, TFO Bustamante believed Defendant Aguilar understood some English and the Court's review of the video confirms that observation. (RT at 19; Exs. 6, 18, 19.)

         TFO Bustamante explained to Defendant that he was under arrest because drugs[5]were found inside the tortilla bag he was carrying. (Ex. 19 at 2-5.) TFO Bustamante then gathered biographical information from Defendant, including the fact that Defendant had been a citizen of the United States and lived in Nogales, Arizona for over thirty years. (Ex. 19 at 5-10, 27-28.) Thereafter, TFO Bustamante asked Defendant to read out loud his Miranda warnings from a form written in Spanish, and the officer informed Defendant that he could ask questions:

TFO Bustamante: So, he wants you read this . . . so that he ca- -- he can hear [gram] her [sic], okay?
Defendant: Mm-hm TFO Bustamante: And if you have questions, you can ask me the questions.
Defendant: Fine. Before asking you any questions, it's 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 in another judicial process. You have the right to consult with an attorney before making any statements or answering any questions. You have the right to an attorney being present during the interrogation. You have the right to any- -- to have an attorney present during the interrogation. If you cannot pay for an attorney, one will be appointed for you before any interrogation, if you so wish. If you decide to answer the questions now, you still have the right to st- -- to stop the interrogation at any time or to stop-- to stop the interrogation to consult with an attorney.
* * *
TFO Bustamante: Do you understand everything?
Defendant: Yeah, I understand.

(Ex. 19 at 11-13; RT at 22-23.)

         TFO Bustamante asked Defendant if he wanted to talk to an attorney or answer questions, to which the Defendant responded that he could be asked questions but still did not know why he was in custody. (Ex. 19 at 13.) TFO Bustamante explained that if Defendant was willing to answer questions he needed to sign the waiver form and instructed Defendant where to sign. (Ex. 19 at 14; RT at 25.) After Defendant signed the waiver, TFO Bustamante further explained that, if at any time he did not want to answer questions, he could stop. (Ex. 19 at 14-15; RT at 19, 23.) Immediately thereafter, TFO Bustamante again explained to Defendant that he was arrested because officers found drugs in the tortillas, and Defendant acknowledged he understood. (Ex. 19 at 16-19.) Defendant never indicated that he did not understand his rights nor that he could not understand TFO Bustamante. (RT at 18-19, 25.)

         When asking Defendant questions, TFO Bustamante testified that, while he tried to set a polite, professional, and respectful tone, he used “border Spanish” and simple words to ensure Defendant understood. (RT at 20, 26, 35, 39.) Defendant's answers to TFO Bustamante's questions were responsive and appeared appropriate. (RT at 19-20; Exs. 6, 18, 19.) At no time during the interview did TFO Bustamante or Agent Woods use verbal threats or physical force, and Defendant freely answered all questions with no indication of distress or confusion. (RT at 21, 25, 28.) Defendant's demeanor was very calm and polite. (RT at 22.)

         Federally certified court interpreter Carmen Noriega transcribed and translated Defendant's videotaped interview for the government. (RT at 53-54.) Ms. Noriega testified that she had no difficulties translating TFO Bustamante's statements to English and understood his Spanish. (RT at 54.) Based on her observations, Defendant's answers were responsive and appropriate to ...

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