United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable Leslie A. Bowman, United States Magistrate Judge.
District Court referred this case to the Magistrate Judge for
a hearing on the defendant's motion to suppress
statements. The defendant, Wilmer Martin Flores, argues that
his statements made at a disciplinary hearing while he was an
inmate at the U.S. Penitentiary (USP) in Tucson must be
suppressed and precluded from trial because they are
irrelevant, were taken in violation of Miranda and
were involuntary, in violation of his Fifth Amendment rights.
evidentiary hearing was held on 5/1/19. Tammy Phillips-Sluder
testified. Government's Exhibit 1 was admitted by
stipulation of the parties.
defendant is charged by indictment with Assault on a Federal
Officer, in violation of 18 U.S.C. § 111(a) and (b).
defendant argues that his Fifth Amendment rights were
violated when he attended a disciplinary hearing at the USP
in Tucson, AZ and was asked if he wanted to make a statement.
He was not advised of his Miranda warnings and the
defendant claims the atmosphere was coercive because he was
handcuffed behind his back and could only leave the office
where the hearing took place if he was handcuffed and
escorted by correction officers. He also posits that the
statement is irrelevant because the report memorializing it
shows the date of incident as 6/20/14, while documenting that
Mr. Flores made the statement at issue on 8/2/16, over 2
years later. He moves the Court to suppress the statement.
Court concludes that the report is relevant, based on
uncontroverted testimony that the gap in dates was due to a
typographical error. The date of the incident and of the
incident report are 6/20/16. The statement at issue was made
1 ½ months later. At the time Mr. Flores made the
statement he was not in custody nor was he interrogated for
purposes of Miranda. Based on the totality of the
circumstances, Mr. Flores made the statement voluntarily and
of his own free will. The statement is admissible at trial.
1 is a Discipline Hearing Officer (DHO) Report
documenting an incident that occurred on 6/20/16, involving
Inmate Wilmer Flores. The charges are summarized as
“Assaulting any person without serious injury; Refusing
to obey an order of any staff member.” The report
documents that written notice of the charge was given to the
inmate by Lieutenant J. Ayala on 7/8/16 and a disciplinary
hearing was held on 8/2/16. Counselor D. Diaz advised Mr.
Flores of his rights on 7/11/16 and provided him with a
written copy, which he signed. The rights include an
admonition that the inmate's “…silence may
be used to draw an adverse inference against you. However,
your silence alone may not be used to support a finding that
you committed a prohibited act;”.
III of the report summarizes Mr. Flores's statements,
indicating that he declined to make a statement to the
investigating Lieutenant, stated to the Unit Disciplinary
Committee (UDC) that he wanted a staff representative, and
admitted the charges to the DHO. Sanctions imposed included
loss of 27 days good conduct time (GCT), disciplinary
segregation for 30 days, 1 year loss of commissary, 1 year
loss of email privileges and 1 year loss of visits.
to the incident report, Mr. Flores was an inmate at the USP
and was housed in the Special Housing Unit (SHU) at the time
of the disciplinary infraction. The DHO found that he
committed the infraction, based in part on his admission. The
DHO also considered the statement of the reporting officer,
photographs, medical assessments corroborating the incident
report and video showing the assault. The incident report was
referred to the FBI on 6/27/16 for prosecution. The FBI
accepted the case to present to the USAO for criminal
Sue Sluder testified that she is a supervisory
management analyst for the Office of Internal Affairs and has
worked for the Bureau of Prisons (BOP) for about 21 ½
years. (RT 6:19-20, 23) On 6/20/16, the date of the incident
in this case, she was working at the Federal Correctional
Complex (FCC) in Tucson, Arizona, as the disciplinary hearing
office for the entire complex. (RT 7:1-2, 10-11). She
identified Mr. Flores as the person who was present at the
disciplinary hearing she conducted on 8/2/16. (RT
6/20/16, 7/8/16, and at the start of the 8/2/16 hearing, Mr.
Flores was given a copy of the incident report and was
informed of his rights. (RT 10:4-5, 16-18) He declined to
make a statement to the investigating lieutenant (RT
10:19-21) after the lieutenant advised Mr. Flores of his
right to remain silent and that his silence could be used to
draw an adverse inference against him. (RT 11:1-5) He was