United States District Court, D. Arizona
ORDER
Honorable David C. Bury United States District Judge
The
trial for Defendant, Heraclio Osorio-Arellanes, is set for
February 5, 2019. He filed three pretrial motions: Motion to
Suppress Statements and Evidence for Fifth Amendment
Violation (Doc. 762), Motion to Suppress Statements and
Evidence for Sixth Amendment Violation (Doc. 763), and Motion
to Preclude Videotape Deposition of Rito Osorio-Arellanes
(Doc. 764).
The
Government agrees it will not use the March 21, 2018,
videotaped deposition of codefendant Rito Osororio-Arellanes.
The two
motions to suppress are aimed at precluding incriminating
statements made by the Defendant during an interrogation by
the United States prosecutor and FBI investigators conducted
in Mexico.
Heraclio
relies on Miranda v. Arizona, 384 U.S. 436 (1966).
Custodial interrogation generates inherently compelling
pressures which work to undermine the individual's will
to resist and to compel him to speak where he might not
otherwise do so. Id. at 467. Under Miranda
there are specific prophylactic safeguards designed to
protect a suspect's Fifth Amendment right against
self-incrimination: he must be warned of his right to remain
silent; that anything he says can be used against him in a
court of law; he has the right to the presence of an
attorney, and if he cannot afford one, an attorney will be
appointed for him prior to any questioning. Id. at
479.
The
Sixth Amendment right to counsel attaches when a suspect has
been formally charged and the prosecution is at a critical
stage. Kirby v. Illinois, 406 U.S. 682, 688-89
(1972). Statements that are deliberately elicited by law
enforcement from a defendant absent counsel after formal
proceedings are commenced are inadmissible. United States
v. Henry, 447 U.S. 264, 270-71, 274 (1980). A critical
stage may be any pretrial proceeding that is the part of the
whole course of a criminal proceeding and at which a
defendant cannot be presumed to make critical decisions
without counsel's advice. Lafler v. Cooper 566
U.S. 156 (2012).
The
Defendant argues that incriminating statements elicited
during an interrogation conducted in Mexico by FBI agents
violated his Fifth and Sixth Amendment rights. The relevant
facts are as follows. Defendant was indicted on August 24,
2011. Extradition proceedings were initiated, including
issuance of a Provisional Arrest Warrant. He was arrested by
Mexican authorities on April 12, 2017. On July 27, 2017,
while in custody in Mexico, the Defendant was visited by FBI
agents and Assistant United States Attorney Todd Robinson for
the purpose of interviewing the Defendant.
The
interview was conducted by FBI Agent Dreher; the AUSA did not
actively participate in questioning Heraclio. The interview
was arranged and also attended by the Mexican Procuraduria
General de la Republica (PGR; Mexican Attorney Generals).
“Upon
arriving at the prison, the agents were informed that
Heraclio was aware of the proposed interview and had
requested that his attorney be present.” (Response
(Doc. 772) at 4.) They waited for his attorney. After waiting
several hours and Defendant's attorney failed to arrive,
one of the PGR representatives suggested that a prison
attorney might represent him during the interview. He
declined. Agent Dreher suggested that Heraclio meet the
prison lawyer and then he could decide if he felt comfortable
having that attorney represent him. Heraclio again stated
“he wanted to have his own lawyer present.”
(Response (Doc. 772), Dreher Notes 8/10/17 (Doc. 772-1) at
6.[1])
Agents continued to wait until approximately 1:20 p.m., when
Juan Salvador Pimentel Ramirez (Pimentel) arrived. He spoke
with the United States contingency and spoke privately with
the Defendant.
At the
evidentiary hearing Agent Dreher could not remember what
Pimentel said during his initial conversation with Pimentel
but testified that he believed Pimentel was Heraclio's
long-awaited attorney. This assertion is somewhat undermined
by the interview transcript where Pimentel clearly states
that he is not representing Heraclio in the criminal
proceeding, and states that the attorney of record in the
extradition file is Jonathan Toledo. (Heraclio Interview
(Doc. 772-4) at 4.) Defendant argues that the Government
should, therefore, have known that Pimentel was not
Defendant's attorney and that Jonathan Toledo was counsel
of record. At best, Defendant establishes that he hired
Toledo to represent him in the extradition proceeding.
Defendant
asserts, without introducing any supporting evidence, that he
did not know and had not previously met with Pimentel, and he
does not know how and why Pimentel arrived at the prison
because he did not call him. (Motions (Docs. 762, 763) ¶
13.) This assertion is contradicted by the record which
reflects as noted above that twice the Defendant refused to
accept any representation other than his attorney, and did
not make any similar objection to being represented by
Pimentel.
After
Heraclio had spoken with Pimentel alone for approximately 10
minutes, (Dreher Notes 8/10/17 (Doc. 772-1) at 7), Agent
Dreher told Heraclio that it was a good thing he had an
attorney and he read Heraclio his rights, as follows:
“First of all, [] you have the right to remain silent.
Even if you've already spoken to other people, you
don't have to talk to us at this time. Anything you say
can be used against you in a court of law. You have the right
to speak with an attorney, so he can advise you before we ask
you any questions. You have the right to have an attorney
present during questioning. If you don't have, [] the
means to pay for an attorney, you have the right to have one
assigned to you before questioning, if you so desire.
However, our ability to provide you with an attorney at
this time may be limited by decisions taken by local
authorities or by the availability of an attorney who can
practice in the United States of America. If you decide
to answer our questions at this time, without an attorney
present, you have the right to stop answering at any
time.” (Heraclio Interview (Doc. 772-4) at 8-9.)
Agents
asked if there were any questions. Pimentel asked: “Is
this just the part pertaining to the United States Department
of Justice or is it just the, what's it called? The part
having to do with the police investigation of, of what this
investigation is about?” In answer, Agents told
Pimentel - they were all working together, and asked one last
time: “Okay. We'll start. Okay. So, can we ask you
a few questions? Heraclio responded yes and questioning
began. Id. at 9-10. Heraclio made numerous
incriminating statements without any objection from Pimentel.
At one point, Pimentel inquired as to whether in the United
States, like in Mexico, you can negotiate so that some of
Heraclio's testimony might work to benefit him;
“What is the possibility of Heraclio receiving some
benefit that the American justice system could offer
him?” Id. at 76. Agent Dreher responded,
“That happens much later, after he's extradited.
He'll have the right to an attorney there, and that's
when that entire process begins.” Id.
At the
conclusion of the interview, Mexican government officials
took photographs, fingerprints and a DNA sample. They
prepared a Spanish language Proceeding Record which described
the interview process, and which Heraclio signed
acknowledging he was accompanied by his private attorney,
Juan Salvador Pimentel Ramirez, and that he had
“voluntarily accede[d] to the [] ...