United States v. Flores-Peraza

          REPORT AND RECOMMENDATION

          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 dismiss indictment. The defendant, Alonso Flores-Peraza, argues that the indictment must be dismissed because he was subjected to a custodial interrogation by ICE agents without Miranda warnings and without the presence of counsel, even though the agents were aware that he was represented by counsel and had criminal charges pending. (Doc. 48). The government filed a response (Doc. 49) and the defendant filed a reply (Doc. 51).

         A hearing was held on 7/8/19. No. witnesses testified. Neither the facts nor the law is in dispute. The only issue before the Court is what the proper remedy is for the unconstitutional taking of Mr. Flores-Peraza's statements.

         Charge:

         The defendant is charged in a one count indictment with making a false statement in a passport application, in violation of 18 U.S.C. § 1542. (Doc. 10)

         Motion to Dismiss:

         The defendant argues that his Fifth and Sixth Amendment rights were violated when he was ordered released from custody in the present case, taken into immigration custody, then questioned by ICE agents regarding matters relevant to his criminal charges. He was interrogated without the benefit of counsel or Miranda warnings. The agents knew that Mr. Flores-Peraza was facing criminal prosecution and was represented by counsel.

         The government's use of an Attorney Special Request, pursuant to 18 U.S.C. § 3621, rather than a Writ signed by a judge, to secure the defendant's return to U.S. Marshal (USM) custody for five days to allow him to be present at his arraignment were litigated before U.S. Magistrate Judge Bernardo P. Velasco pursuant to the defendant's prior motion to dismiss the indictment. (Doc. 23) By Report and Recommendation, issued on 10/18/18 (Doc. 29), the Court recommended that the District Court deny the motion. The parties were given 14 days to object. No. objections were filed. The Attorney Special Request and the defendant's return to USM custody were thoroughly litigated. The Court determined that those issues do not justify dismissal of the indictment. (Doc. 47) The parties were unaware at the time of the motion hearing that Mr. Flores-Peraza was questioned and gave statements while in ICE custody.

         The defendant now claims that the cumulative affect of the government's improper use of an Attorney Special Request and the defendant's return to USM custody for his arraignment, after he was ordered released by this Court, in concert with the unconstitutional taking of statements, justifies this second motion for dismissal. The government responds that the first issues were already decided by the Court and there is a remedy for the unconstitutional taking of statements from a defendant that is less extreme than dismissal. The remedy is suppression of the statements in the government's case-in-chief.

         The Court concludes, and the parties agree, that ICE agents took statements from Mr. Flores-Peraza in violation of his Fifth and Sixth Amendment rights. The government avows that it will not use the statements in its case-in-chief but asserts its right to use the statements for impeachment purposes, should the defendant testify inconsistently at trial. For the reasons discussed below, the Court recommends that the District Judge preclude the government from using the statements for any reason at trial, including impeachment, but recommends that the motion to dismiss the indictment be denied.

         FACTS:

         Defendant Alonso Flores-Peraza was arrested on 6/19/17 for allegedly making false statements on a passport application. On 6/29/18 a detention hearing was held, and the Court ordered the defendant released on conditions recommended by Pre-Trial Services, over the government's objection. The ICE detainer was discussed and considered by the Court. Mr. Flores-Peraza was released into immigration custody.

         On 7/18/18 Mr. Flores-Peraza was indicted. Defense counsel attempted unsuccessfully to visit him in ICE custody on several occasions. The defendant was not transported for his arraignment on 8/3/18. The government requested a warrant. The Court denied the government's request and continued the hearing to 8/17/18. The parties agreed to accelerate the arraignment to 8/10/18 after ICE returned the defendant to USM custody on 8/9/18, pursuant to the government's Attorney Special Request. Mr. Flores-Peraza appeared for his arraignment and remained in USM custody until 8/13/18. Once he was returned to ICE custody he posted a bond and was released.

         One of the issues that arose during the hearing on the first motion to dismiss was whether any evidence was obtained from the defendant while he was in ICE custody. The parties were not aware of any evidence at that time. In November 2018 the government disclosed the Record of Sworn Statement in Affidavit Form, which confirmed that Mr. Flores-Peraza was questioned by ICE agents on 7/2/18 without the knowledge or presence of his attorney and without Miranda warnings. The defendant was advised that his statements could be used against him in a ...