Free Motion to Suppress Statements - District Court of California - California

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JOAN KERRY BADER California State Bar No. 172586 964 Fifth Avenue, Suite 214 San Diego, California 92101-6128 Telephone: (619) 699-5995 FAX (619) 699-5996 Attorney for Defendant LUNA UNITED STATES DISTRICT COURT

6 SOUTHERN DISTRICT OF CALIFORNIA 7 (HONORABLE THOMAS J. WHELAN) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 08cr1249TJW PLEASE TAKE NOTICE that on July 28, at 9:00 a.m., or as soon thereafter as counsel may be heard, the defendant, Roberto Luna-Guevara, by and through his counsel, Kerry Bader, will ask this Court to enter an order granting the motions listed below. // // // // // // // TO: KAREN HEWITT, UNITED STATES ATTORNEY; NICOLE JONES, ASSISTANT UNITED STATES ATTORNEY: ) ) Plaintiff, ) ) v. ) ) ROBERTO LUNA-GUEVARA, ) ) ) Defendant. ) ___________________________________) UNITED STATES OF AMERICA, CASE NO. 08CR1249TJW DATE: July 28, 2008 TIME: 9:00 a.m. MOTIONS TO SUPPRESS STATEMENTS; FOR SWEARING AND OATH OF ALLEGIANCE CEREMONY

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MOTIONS Defendant, Roberto Luna-Guevara, by and through his attorney, Kerry Bader, pursuant to the United States Constitution, the Federal Rules of Criminal Procedure, and all other applicable statutes, case law and local rules, hereby moves this Court for an order to: 1) and 2) swearing and oath of allegiance ceremony. suppress evidence

This motion are based upon the instant motion and notice of motion, the attached statement of facts and memorandum of points and authorities, and any and all other materials that may come to this Court's attention at the time of the hearing on this motion. Respectfully submitted,

/s/Joan Kerry Bader JOAN KERRY BADER Attorney for Defendant LUNA

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JOAN KERRY BADER California State Bar No. 172586 964 Fifth Avenue, Suite 214 San Diego, California 92101-6128 Telephone: (619) 699-5995 fax (619)699-5996 Attorney for Defendant LUNA

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE THOMAS J. WHELAN) ) ) Plaintiff, ) ) v. ) ) ROBERTO LUNA-GUEVARA, ) ) Defendant. ) ___________________________________) I. STATEMENT OF FACTS On or about April 22, 2008, Mr. Luna was arrested at the San Ysidro Port of Entry in the Southern District of California. He has UNITED STATES OF AMERICA, CASE NO. 08CR1249TJW DATE: July 28, 2008 TIME: 00;a.m. STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION

been indicted and is charged with importation of methamphetamine and heroin, a violation of 21 USC sections 952, 960. Mr. Luna remains incarcerated at the GEO detention facility in San Diego, California. II.

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ANY STATEMENTS MADE BY MR. LUNA SHOULD BE SUPPRESSED
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A.
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The Government Failed to Comply With Miranda
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Mr. Luna was arrested at the San Ysidro Port of Entry.

His

statements were taken in violation of the dictates of Miranda v. Arizona and they were made unknowingly, involuntarily and unintelligently. 384 U.S. 436 (1966). As such both his Fifth Amendment right to Due Process and his right to be tried upon "reliable evidence," his Sixth Amendment right to Counsel and his Fourth Amendment right to remain silent have been abridged. of his statements must be suppressed. Accordingly, all

The transcript of the

interrogation is attached, and it raises a significant amount of concern that it should be reviewed. 1. Miranda Warnings Must Precede Custodial Interrogation.

The Supreme Court has held that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from a custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444 (1966).

Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Orozco v. Texas, 394 U.S. 324, 327 (1969). Id.; see

Here, Mr. Luna was not

free to leave and was under the custody of a federal agent from the minute, if not before the minute, he arrived at the primary inspection at the Port of Entry. A suspect will be held to be in custody if the actions of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably have led him to believe he could not freely leave. See United States v. Lee, 699 F.2d 466, 468 (9th Cir.

1982); United States v. Bekowies, 432 F.2d 8, 12 (9th Cir. 1970).
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Once a person is in custody, Miranda warnings must be given prior to any interrogation. See United States v. Estrada-Lucas, 651 F.2d Those warnings must advise the defendant United States v. Bland, 908

1261, 1265 (9th Cir. 1980).

of each of his or her "critical" rights. F.2d 471, 474 (9th Cir. 1990).

If a defendant indicates that he

wishes to remain silent or requests counsel, the interrogation must cease. Miranda, 384 U.S. at 474. See also: Edwards v. Arizona, 451

U.S. 484 (1981). Within the DVD transcribed recording, the agents are not shy about the fact that they had previously interrogated Mr. Luna prior to the recording. Then, the had him read his rights and told him to sign As Mr. Luna

them, without asking if he wanted to waive them or not.

rights were violated, all statements must be suppressed as they were taken in violation of the dictates of Miranda. B. The Government Must Demonstrate That Mr. Luna's Statements Were Made Voluntarily, Knowingly, and Intelligently. When interrogation continues without the presence of an attorney, and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant intelligently and voluntarily waived his privilege against self-incrimination and his right to retained or appointed counsel. Miranda, 384 U.S. at 475 (italics added). It is undisputed that a

There was no lawful waiver in this case.

waiver of the right to remain silent and the right to counsel must be made knowingly, intelligently, and voluntarily in order to be effective. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The

standard of proof for a waiver of this constitutional right is high. Miranda, 384 U.S. at 475. 1277 (9th Cir. 1984). See United states v. Heldt, 745 F.2d 1275,

The burden on the government is great and the
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court must indulge every reasonable presumption against waiver of fundamental constitutional rights. Id. Here, the agent told Mr. Luna to sign; there was no request or inquiry as to whether he actually wanted to sign or understood his rights. The court must make a two-pronged inquiry: 1. The statement must be given voluntarily in the sense that it was the "product of a free and deliberate choice rather than the result of intimidation, coercion or deception;" and 2. The waiver must be knowing and intelligent, in the sense that it was "made with a full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412, 421 (1986)(italics added);

United States v. Sriyuth, 98 F.3d 739, 748-749 (3d. Cir 1996). Here, the DVD showing the interrogation proves that Mr. Luna did not make a knowing, or intelligent waiver of his right to remain silent and his right to counsel. he was abandoning. He was not made aware of the rights

Instead, he was told over and over again that the

questioning was just his "opportunity" to be honest so they could really to the judge his statements and that" and that the agents were just gathering information for a report. Mr. Luna told the agents,

when he could manage to get a word in, that he was extremely dizzy and did not have his medication, and that he is a diabetic. The bulk of the 68-page transcription is essentially the agents telling Mr. Luna how drug trafficking organizations operate and what he should say so that they could relay a better-sounding story to the judge and to his family. While the agents testified for Mr. Luna, he

said very few things for the bulk of the transcription, and the Court

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will see "uh huh" throughout the transcript. Edwards v. Arizona, 451 U.S. 477, 485 (1981) [A]ny evidence that the accused was threatened, tricked or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege. The requirement of warnings and waiver of rights is fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation. Miranda v. Arizona, 384 U.S. 436, 476 (1968).

The Supreme Court has consistently held that "waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case "upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused." Johnson v. Zerbst, 304 U.S., 458, 464 (1938); See Faretta v. California, 422 U.S. 806, 835 (1975); North Carolina v. Butler, 441 U.S. 369, 374-75 (1979); Brewer v. Williams, 430 I.S. 387, 404 (1977); Fare v.Michael C., 422 U.S. 707, 724725 (1979). Edwards v. Arizona, 451 U.S. 477 (1981)(emphasis added).

Any system of administration which permits the prosecution to trust habitually to compulsory selfdisclosure as a source of proof must itself suffer morally thereby. The inclination develops to rely mainly upon such evidence, and to be satisfied with an incomplete investigation of the other sources. The exercise of power to extract answers begets a forgetfulness of the just implications of that power. The simple and peaceful process of questioning breeds a readiness to resort to bullying and to physical force and torture. If there is a right to an answer, there soon seems to be a right to the expected answer, ­ that is, to a confession of guilt. Thus the legitimate use grows into an unjust abuse; ultimately, the innocent are jeopardized by the encroachments of a bad system. Such seems to have been the course of experience in those legal systems where the privilege was not recognized. 8 Wigmore Evidence (3d ed. 1940), 309 (emphasis added). Here there was bullying ­ the agents testified for Mr. Luna as to what the facts should be and he simply sat there and said, "uh huh" until about page 58. Who knows of Mr. Luna thought he was helping to
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generate a "report" or that he was consciously giving up his right to remain silent and to refrain from incriminating himself.

The due process test takes into consideration the "totality of all the surrounding circumstances ­ both the characteristics of the accused and the details of interrogation." Ibid. See also, Haynes, supra, at 513, Gallegos v. Colorado, 370 U.S. 49, 55... (1962); Reck v. Pate, 367 U.S. 433, 440 ... (1961)("All the attendant circumstances upon the confession must be taken into account."}; Malinski v. New York, 324 U.S. 401, 404 ...(1945)("If all the attendant circumstances indicate that the confession was coerced or compelled, it may not be used to convict a defendant"). The determination "depends upon a weighing of the circumstances of pressure against the power of resistance of the person confessing." Stein v. New York, 346 U.S. 156, 185 ... (1953). Dickerson v. United States, 530 U.S. 428, 433 (2000). So, not only was the "waiver" involuntary, it was not knowingly and intelligently made. As the Court has said, we "indulge every reasonable presumption against a waiver of fundamental rights" whether they be the right to counsel or the right to remain silent." And we "do not presume

acquiescence in the loss of fundamental rights." Johnson v. Zerbst, 304 U.S. 458, 466 (1938). All of what happened here in this DVD contravenes the Self Incrimination Claus: "No person... shall be compelled in any criminal case to be a witness against himself." U.S. Const., Amdt. 5. As the Supreme Court has said, "the core protection afforded by the Sel-Incrimination Clause is a prohibition on compelling a criminal defendant to testify against himself at trial....[citations omitted] J.McNaughton rev. ed 1961)(explaining that the Clause was "directed at the employment of legal process to extract from the person's own lips an admission of guilt, which would thus take the place of other evidence")..." United States v. Patane, 542 U.S. 630 (2004).
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Here, Mr. Luna' was convinced, after extraordinary effort that he should speak, without once being told that his statements would be used in a criminal trial against him. When viewing the DVD, the

viewer is reminded of the police tactics that the Miranda Court sought to dispel, i.e. the use of police interrogation methods spelled out in their manuals, "emphasizing the most effective psychological stratagems to employ during interrogations": The officers are told by the manuals that the "principal psychological factor contributing to successful interrogation is privacy ­ being alone with the person under interrogation. efficacy of this tactic is as follows: If at all practicable, the interrogation should take place in the investigator's office or at least in the room of his choice. The subject should be deprived of every psychological advantage. In his home he may be confident, indignant or recalcitrant. He is more keenly aware of his rights and more reluctant to tell of his indiscretions or criminal behavior within the walls of his home. Moreover his family and other friends are nearby, their presence lending moral support. In his own office, the investigator possesses all the advantages/ the atmosphere suggests the invincibility of the forces of law. To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect's guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the subject is to be posited by fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an unhappy childhood, had too much to drink, had an unrequited desire for women the officers are instructed to minimize the moral seriousness of the offense, to cast blame on the victim on the victim or on society. These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already ­- that he is guilty. Explanations to the contrary are dismissed and discouraged. Miranda, 384 U.S. at 450-451. The

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The validity of the waiver depends upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. Edwards v. Arizona, 451 U.S. See

477, 472 (1981); Johnson v. Zerbst, 304 U.S. 458, 464 (1983). also United States v. Heldt, 745 F.2d at 1277; United States v. McCrary, 643 F.2d 323, 328-29 (9th Cir. 1981).

In Derrick v. Peterson, 924 F.2d 813 (9th Cir. 1990), the Ninth Circuit confirmed that the issue of the validity of a Miranda waiver requires a two prong analysis: and (2) knowing and intelligent. the waiver must be both (1) voluntary Id. at 820. The voluntariness prong

of this analysis "is equivalent to the voluntariness inquiry under the [Fifth] Amendment . . . ." Id. See infra.

The second prong, however, requiring that the waiver be "knowing and intelligent," mandates an inquiry into whether "the waiver [was] made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it." 820-21 (quoting Colorado v. Spring, 479 U.S. 564, 573 (1987)). Id. at This

inquiry requires that the court determine whether "the requisite level of comprehension" existed before the purported waiver may be upheld. Id. Thus, "[o]nly if the `totality of the circumstances surrounding

the interrogation' reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." at 573) Id. (quoting Colorado v. Spring, 479 U.S. Emphasis added.

(citations omitted) (emphasis in original)).

Even when the procedural safeguards of Miranda have been satisfied, a defendant in a criminal case is deprived of due process of law if the conviction is founded upon an involuntary confession. Arizona v. Fulminante, 499 U.S. 279 (1991); Jackson v. Denno, 378 U.S.
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368, 387 (1964).

The government bears the burden of proving that a Lego v.

confession is voluntary by a preponderance of the evidence. Twomey, 404 U.S. 477, 483 (1972).

The Court must examine all "the surrounding circumstances and the entire course of police conduct." Oregon v. Elstad, 470 U.S. 298 (1985); Missouri v. Seibert, 542 U.S. 298 (2004).

The Court must also look at the coercive pressures that can be brought to bear upon a suspect in the context of custodial interrogation. Berkmere v. McCarty, 468 U.S. 420 (1984). The Supreme Court is cognizant of interrogations such as that which took place here. stated: In Miranda, we noted that the advent of modern custodial interrogation brought with it increased concern about confessions obtained by coercion. 384 U.S at 445-458. Because custodial police interrogation, by its very nature, isolates and pressures the individual, we stated that "even without employing brutality, the `third degree' or [other] specific strategems,... custodial interrogation exacts a heavy till on ondividual liberty and trades on the weaknesses of individuals. 530 U.S. 428 434-435 (2000). The standard for determining if a confession was voluntarily In Dickerson v. United States, the Court

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given is whether "the confession is a product of an essentially free
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and unconstrained choice by its maker." Beecher v. Alabama, 499 U.S.
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279 (1991).
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In determining whether a defendant's will was overborne

in a particular case, the totality of the circumstances must be considered.
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Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).

Here, Mr. Luna never intelligently or voluntarily waived his rights and he was never accurately advised of the critical rights he
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was being told to give up.
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C.
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This Court Should Conduct An Evidentiary Hearing.
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It is anticipated that the government will argue that it need not present evidence in support of its position that the Miranda motion should be denied because the defense has not submitted a declaration. The government's position is contrary to the framework established in Miranda. First, requiring the defense to come forward with factual It is the government, not the

information shifts the burden of proof. defense, that bears the burden of proof.

[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. at 444 (emphasis added). Thus, far from

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requiring the defense to come forward with anything, Miranda squarely
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places the burden on the government.
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Similarly, it is the government that bears the burden of proving
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a valid waiver.
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If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against selfincrimination and his right to retained or appointed counsel. Id. at 475 (citing Escobedo v. Illinois, 378 U.S. 478, 490 n.14 (1963) (emphasis added)). This "heavy burden," id., cannot be met absent evidence of proper warnings and a knowing and intelligent waiver. "Presuming a waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver." Id. (quoting Carnley v. Cochran, 369 U.S. 506, 516 (1942) (emphasis added)). Thus, both an allegation and evidence are required.
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The government's anticipated contention that there are no contested factual issues is also wrong. Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. Id. at 476 (emphasis added).

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In short,
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[t]he warnings required and the waiver necessary in accordance with [the Miranda] opinion . . . are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant. Id. If the government fails to meet these requirements, the Merely claiming, in a responsive

statements are not admissible.

pleading, that warnings were provided and that there was a waiver is simply inadequate. In dealing with custodial interrogation, we will not presume that a defendant has been effectively apprised of his rights and that his privilege against self-incrimination has been adequately safeguarded on a record that does not show that any warnings have been given or that any effective alternative has been employed. Nor can a knowing and intelligent waiver of these rights be assumed on a silent record. Id. at 498-99. Consequently, this Court should require the government

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to prove its case.
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In addition, this Court must also determine whether the warnings
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provided were adequate.
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See United States v. Bland, 908 F.2d 471,

473-74 (9th Cir. 1990), cert. denied, 113 S. Ct. 170 (1992); United States v. Noti, 731 F.2d 610, 614-15 (9th Cir. 1984).
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If no evidence

of the content of warnings is presented, this Court cannot meet this obligation.
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This Court is also required to conduct an evidentiary hearing under 18 U.S.C. § 3501(a) to determine, outside the presence of the jury, whether any statements made by Mr. Gonzalez are voluntary. Moreover, section 3501(a) requires this Court to make a factual determination. Where a factual determination is required, courts are See United Because

obligated to make factual findings by Fed. R. Crim. P. 12.

States v. Prieto-Villa, 910 F.2d 601, 606-10 (9th Cir. 1990).

"'suppression hearings are often as important as the trial itself,'" id. at 609-10 (quoting Waller v. Georgia, 467 U.S. 39, 46 (1984)), these findings should be supported by evidence, not merely an unsubstantiated recitation of purported evidence in a prosecutor's responsive pleading.
III. MOTION FOR OATH OF ALLEGIANCE AND NATURALIZATION Mr. Luna-Guevara, pursuant to Rule 17(b) of the Federal Rules of Criminal Procedure, the Sixth Amendment to the United States Constitution and the Criminal Justice Act, 8 USC section 1421, et. seq., hereby requests that this Court administer an oath of naturalization so that Mr. Luna, the Defendant in this matter, may become a United States citizen. Mr. Luna references 8 USC section 1421(b)(1) and (b)(5) which authorizes this Court administer the oath of allegiance to the United States. Mr. Luna's naturalization application was approved by the

Attorney General in December 1996 (see attached documents from the INS Citizenship Unit and see 8 USC section 1421). Mr. Luna was advised he

would be scheduled for the next available oath of allegiance ceremony in Los Angeles. However, he did not receive a notice. At this time,

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he respectfully asks this Court to take his oath of allegiance and to swear him in as a United States citizen. Mr. Luna has lived, worked and raised children in the United States for nearly thirty years. He became a Lawful Permanent Resident

and two of his three adult children are United States citizens as is his wife, Maria Elena Luna. States citizens. All of his grandchildren are United

Mr. Luna has had a career in painting cars for He worked for One-Day Painting and Autobody Mr. Luna is

most of his adult life.

throughout the United States and he freelanced for years. 56 years old.

He was recently diagnosed with diabetes and because he

was not aware of the late-onset diabetes his health has suffered, as shown by the attached documents generated by the Medical Department at the Metropolitan Correctional Center and Alvarado Hospital, both here in San Diego, California. Mr. Luna is blind in one eye and he is his In addition, he has been placed

losing sensory capacity in his feet.

under the care of physicians who recommend that his lungs be checked by ultrasound or CAT scan within six months.

VI. CONCLUSION

For the foregoing reasons, Mr. Luna respectfully requests that the Court grant his motions.

Dated:

July 24, 2008

Respectfully submitted, /s/Joan Kerry Bader JOAN KERRY BADER Attorney for Defendant Luna 13 08cr1249TJW

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JOAN KERRY BADER California State Bar No. 172586 964 Fifth Avenue, Suite 214 San Diego, California 92101-6128 Telephone: (619) 699-5995 FAX (619) 699-5996 Attorney for Defendant Luna THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA THE HON. THOMAS J. WHELAN THE UNITED STATES OF AMERICA v. ROBERTO LUNA-GUEVARA, Defendant ) ) ) ) ) ) CASE NO.08cr1749 July 28, 2008 2:00 p.m. PROOF OF SERVICE

) ) ) ) ___________________________________) TO: KAREN HEWITT, UNITED STATES ATTORNEY; NICOLE JONES, ASSISTANT UNITED STATES ATTORNEY Defendant Roberto Luna-Guevara, by and through his attorney, J.

15 Kerry Bader, hereby files his Motions to suppress and for Swearing in 16 Ceremony and Oath of Allegiance on this date. 17 18 Respectfully submitted, 19 20 21 22 23 24 25 26 27 28 1 07CR3402 Dated: July 24, 2008 /s/Joan Kerry Bader Joan Kerry Bader Attorney for Roberto Luna