United States District Court, D. Arizona
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 ...