United States v. Osorio-Arellanes

          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 [] ...