United States v. Flores

          REPORT AND RECOMMENDATION

          Honorable Leslie A. Bowman, United States Magistrate Judge.

         The 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. (Doc. 42).

         An evidentiary hearing was held on 5/1/19. Tammy Phillips-Sluder testified. Government's Exhibit 1 was admitted by stipulation of the parties.

         Charge:

         The defendant is charged by indictment with Assault on a Federal Officer, in violation of 18 U.S.C. § 111(a) and (b).

         Motion to Suppress:

         The 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.

         The 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.

         EVIDENCE:

         Exhibit 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;”.

         Section 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.

         According 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 prosecution.

         Tammy 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 21-22:24-25, 1-8)

         On 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 ...