U.S. v. Sanchez, CRIM. 98-129(SEC).
| Decision Date | 20 July 1999 |
| Docket Number | No. CRIM. 98-129(SEC).,CRIM. 98-129(SEC). |
| Citation | 59 F.Supp.2d 348 |
| Parties | UNITED STATES of America, Plaintiff, v. Tomas Melendez SANCHEZ, Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
Edgar R. Vega Pabón, San Juan, PR, for Defendants.
Pending before the Court is a motion to suppress filed by defendant Tomás Meléndez Sánchez to suppress his testimony during a Court hearing on May 19, 1998 (Docket # 41). Upon careful consideration of the parties' arguments and the applicable law, defendants' motion to suppress is DENIED IN PART AND GRANTED IN PART.
On December 3, 1997, defendant Tomás Meléndez Sánchez ("Meléndez") appeared before a federal Grand Jury investigating the case of United States v. José Ramos Cartagena, Crim. No. 97-110(JAF). Prior to providing his testimony, the Assistant U.S. Attorney ("AUSA") placed Meléndez under oath and advised him of his duty to provide truthful testimony to the Grand Jury. AUSA Margaret Davis advised Meléndez that he had a right to an attorney, and informed him of the criminal consequences to which he could be exposed if he lied. Meléndez said he understood his rights and his obligation to tell the truth, and declined to request an attorney. In his Grand Jury testimony he implicated several individuals in the planning and execution of a Loomis Fargo robbery, to wit: Antonio Velázquez (a.k.a. "Cano Ingram"), Rodolfo Landa (a.k.a. "Rudy") and his brother "Landa", "Chaito", "Hochi", José the guard, and "Moncho." (Docket # 41, Exhibit I, Grand Jury Transcript, pp. 5-7, 9, 15, 18).
On March 28, 1998, Meléndez met with David Román, counsel for one of the people he had identified as conspirators in the robbery and provided a statement under penalty of perjury before a Notary Public. (Docket # 48, Opposition to Motion to Suppress, Appendix, Exhibit II, Meléndez Affidavit) In that statement, Meléndez referred to a taped conversation with David Román in which he retracted all his allegations regarding the involvement of the identified people in the truck robbery. Id., Exhibit II, p. 3. Pursuant to Meléndez's statement, Román and other counsel for the defendants in United States v. José Ramos Cartagena sought to dismiss the indictment.
On May 19, 1998, approximately five months after Meléndez testified before the Grand Jury, the Government issued a subpoena upon Meléndez to testify as a witness for the defense in the case of United States v. José Ramos Cartagena. Prior to his testimony, the Court discussed with prosecutors Timothy Faerber and Margaret Davis and defense counsel José F. Blanco, Richard Dansoh, Juan Acevedo, David Román, Ricardo Izurieta, Joseph Laws, Fernando Carlo and Luis Rivera Rodríguez about the scope of the questioning regarding the credibility of Meléndez's testimony before the Grand Jury on December 3, 1997.
After discussion of several discovery matters and the opening statements by the Government and defense counsel, counsel David Roman called Meléndez to the witness stand. It is crucial to point out that Meléndez appeared to testify on May 19, 1998 without an attorney. Furthermore, there is no evidence that the Court advised Meléndez about his right to an attorney, his right to avoid incriminating himself, and that anything Meléndez said during the hearing could later be used against him in future criminal proceedings. Additionally, neither the prosecutors or defense counsel informed the Court on the appropriateness of advising Meléndez of his Fifth Amendment rights. On direct examination by counsel Román, Meléndez retracted his previous testimony before the Grand Jury, in which he identified several individuals as conspirators in the Loomis Fargo robbery. In essence, he admitted that he lied before the Grand Jury because Agent Carlos Cintrón, who allegedly promised him $35,000 and an apartment, trained him to tell the Grand Jury a story which involved all the persons Meléndez identified at the Grand Jury proceeding on December 3, 1997. He testified that Agent Cintrón housed him in several hotels within Puerto Rico's metropolitan area, as Cintrón fed him an ongoing story-line about the alleged criminal activities of "Cano Ingram" and the other individuals identified by Meléndez. Despite his previous declarations at the start of the Grand Jury proceedings, Meléndez claimed he was never aware that he would testify under oath before a Grand Jury, and that if he had truly understood the gravity of the proceedings and the consequences arising from his testimony, he would never have agreed to testify as Cintrón allegedly ordered him to testify. (Docket # 41, Exhibit II, Hearing Transcript, pp. 19-34).
Meléndez reiterated his retractions and his motivations for lying before the Grand Jury upon questioning by defense counsel Carlo, Acevedo, Blanco and Rivera, as well as prosecutors Faerber and Davis. Id., Exhibits II, III. The questioning commenced on the morning of May 19 and continued throughout the afternoon. Id. Meléndez clearly incriminated himself again and again without having been advised of his Fifth Amendment rights. It was not until late in the afternoon of May 19, 1998, after Meléndez had made yet another damning confession of perjury, that AUSA Davis suggested to the Court to advise Meléndez of his Fifth Amendment rights. Id., Exhibit III, p.44, line 6 to p. 45, line 2.
After the Court advised Meléndez of his Fifth Amendment rights, Meléndez clearly waived his right to an attorney, stating: Id., Exhibit III, p. 46, lines 3-7. Meléndez then continued to testify and reiterate his previous declarations that he had lied before the Grand Jury. After Meléndez finished his testimony, Judge Fusté ordered his arrest and told the prosecutors to file a criminal complaint against him for obstruction of justice and perjury. Id., Exhibit III, p. 75.
Defendant Meléndez seeks to suppress the testimony given by him under oath on May 19, 1998 before Judge Jose Antonio Fusté, since neither the Government nor the Court advised him of his Miranda rights, that is, that he had a right to an attorney, that he did not have to incriminate himself, that anything that he would say during the hearing could be used against him in future proceedings, and that he could stop testifying at any time that he felt he could be incriminating himself. Accordingly, defendant claims that since the Government obtained Meléndez's incriminating statement without the proper Miranda warnings, the Court should suppress the statements that led to the indictment as "fruits of the poisonous tree."
Defendant correctly argues that the Fifth Amendment protection against self-incrimination precludes the Government from using statements elicited from a suspect during a custodial interrogation if those statements were extracted without a prior warning. Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 2397, 110 L.Ed.2d 243 (1990), quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694. For the Fifth Amendment protection to come into play, however, the statements must be the result of a custodial interrogation.
A defendant is said to be in custody when he or she is either subjected to a formal arrest or restrained to the degree usually associated with a formal arrest. United States v. Fernández Ventura, 85 F.3d 708, 709 (1st Cir.1996), quoting Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 465, 133 L.Ed.2d 383 (1995); Stansbury v. California, 511 U.S. 318, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293 (1994). To determine whether a particular restraint on freedom of movement meets this test, the Court Fernández Ventura, 85 F.3d at 711, quoting Stansbury, 114 S.Ct. at 1529.
Among the factors which are usually taken into account in determining whether a defendant was in custody are: (a) whether he was questioned in a familiar or neutral surrounding; (b) the number of law enforcement agents that were present at the scene; (c) the degree of physical restraint which was placed upon the subject, i.e., whether the subject was free to leave; (d) and the duration and character of the interrogation. Fernández Ventura, 85 F.3d at 711, quoting United States v. Masse, 816 F.2d 805, 809 (1st Cir.1987).
A defendant is, on the other hand, said to be under interrogation when he or she is subjected to "words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Fernández Ventura, 85 F.3d at 711, quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). As with the custody determination, the test is objective: the Court must determine whether a reasonable person would, given the same circumstances, perceive such questioning to constitute an attempt to elicit an incriminating response. Fernández Ventura, 85 F.3d at 711 (quoting United States v. Taylor, 985 F.2d 3, 7 (1st Cir.1993)).
In the present case, the Government argues that Meléndez was not under custody, for purposes of Fifth Amendment analysis, since he came to the Court hearing of his own accord to testify on behalf of the defendants. According to the Government, Meléndez had met voluntarily with counsel for the defendants prior to the hearing, and provided them with a detailed sworn statement, acknowledging the consequences of perjury, and provided essentially the same declarations...
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U.S. v. Melendez a/k/a Sanchez, 99-2089
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