United States v. Acosta

• Decision Date: 13 June 2011
• Docket Number: Criminal Case No. 1:09–CR–184–JEC.
• Parties: UNITED STATES of America, v. Juan Manuel ACOSTA, Martin Arreola–Romero, Angel Luis Ayala, Otha Barnes, Gerald Edward Durrance, Martina Casas Flores, Ramiro Hernandez–Duque, Jorge Lucatero–Torres, Belisario Gil Mendoza, Juan Manuel Mendoza, Raphael Pedroza Perez, Obiel Pineda–Pardo, Alfonso Rios, Jr., Jose Cesar Almeida, Jorge Alejandro Anaya–Medina, Luis Manuel Haces–Delgado, Alejandro De La Cruz–Plancarte, Javier De La Cruz–Loya, Andres Bautista–Gallegos, Noe Aguilar–Camudio, Defendants.
• Court: U.S. District Court — Northern District of Georgia

807 F.Supp.2d 1154

UNITED STATES of America,

v.Juan Manuel ACOSTA, Martin Arreola–Romero, Angel Luis Ayala, Otha Barnes, Gerald Edward Durrance, Martina Casas Flores, Ramiro Hernandez–Duque, Jorge Lucatero–Torres, Belisario Gil Mendoza, Juan Manuel Mendoza, Raphael Pedroza Perez, Obiel Pineda–Pardo, Alfonso Rios, Jr., Jose Cesar Almeida, Jorge Alejandro Anaya–Medina, Luis Manuel Haces–Delgado, Alejandro De La Cruz–Plancarte, Javier De La Cruz–Loya, Andres Bautista–Gallegos, Noe Aguilar–Camudio, Defendants.

Criminal Case No. 1:09–CR–184–JEC.

United States District Court, N.D. Georgia, Atlanta Division.

June 13, 2011.

Suzanne Hashimi, Federal Defender Program Inc., Atlanta, GA, Michael Robert Friedman, Michael R. Friedman, Attorney at Law, Chamblee, GA, for Defendants.

ORDER

JULIE E. CARNES, Chief Judge.

The above entitled action is presently before the Court on the Magistrate Judge's Report and Recommendation [638] recommending denying defendant Jorge Anaya–Medina's Motion to Suppresa Statements [301] and Motion to Suppress Evidence [302]; recommending denying defendant Alejandro De La Cruz–Plancarte's Motion to Suppress Evidence [322]; recommending denying defendant Otha Barnes' Motion to Suppress Evidence [315]; recommending granting defendant Gerald Durrance's Motions to Suppress evidence [304, 455]; recommending granting in part and denying in part defendant Martina Flores' Motion to Suppress Evidence [349]; recommending denying defendant Noe Aguilar–Camudio's Motions to Suppress [331, 332, 334]; recommending denying defendants Jorge Anaya–Medina's, Luis Haces–Delgado's, and Martina Flores' Motions to Suppress Wiretaps [328, 342, 351]; recommending denying defendant Luis Haces–Delgado's Motions to Suppress Evidence and Statements [340, 341]; recommending denying Otha Barnes', Andres Bautista–Gallegos', Noe Aguilar–Camudio's, and Luis Haces–Delgado's Motions for Severance [306, 329, 333, 381]. Defendants Martina Flores, Noe Aguilar–Camudio, Jorge Anaya–Medina, and Luis Haces–Delgado filed Objections [658, 659, 660, 661] to the Report and Recommendation [638] on January 28, 2011.

Upon review, the Court ADOPTS the Magistrate Judge's Report and Recommendation [638] DENYING defendant Jorge Anaya–Medina's Motion to Suppress Statements [301] and Motion to Suppress Evidence [302]; DENYING defendant Alejandro De La Cruz–Plancarte's Motion to Suppress Evidence [322]; DENYING defendant Otha Barnes' Motion to Suppress Evidence [315]; GRANTING defendant Gerald Durrance's Motions to Suppress evidence [304, 455]; GRANTING IN PART and DENYING IN PART defendant Martina Flores' Motion to Suppress Evidence [349]; DENYING defendant Noe Aguilar–Camudio's Motions to Suppress [331, 332, 334]; DENYING defendants Jorge Anaya–Medina's, Luis Haces–Delgado's, and Martina Flores' Motions to Suppress Wiretaps [328, 342, 351]; DENYING defendant Luis Haces–Delgado's Motions to Suppress Evidence and Statements [340, 341]; DENYING defendants Otha Barnes', Andres Bautista–Gallegos', Noe Aguilar–Camudio's, and Luis Haces–Delgado's Motions for Severance [306, 329, 333, 381].

This case is now ready to be set for trial. Given the number of defendants and therefore the anticipated difficulty in setting a trial date, attorneys should advise by July 1, 2011 of any scheduling conflicts that they are aware of through the end of 2011.

Excludable time is allowed to commence as of June 13, 2011 through July 1, 2011, pursuant to 18 U.S.C. § 3161(h)(7)(B)(iv) (to give counsel for the defendant or attorney for the Government reasonable time necessary for effective preparation) and (h)(6) (a reasonable period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial has not run and no motion for severance has been granted). Accordingly, the Court concludes that the ends of justice served by a continuance outweigh the best interest of the public and defendants in a speedy trial.

SECOND SUPERSEDING INDICTMENT

ORDER AND REPORT AND RECOMMENDATION

JANET F. KING, United States Magistrate Judge.

Pending before the court are the following motions:

Defendant Jorge Anaya–Medina's motion [Doc. 301] to suppress voice exemplars and statements obtained on April 29, 2009, and motion [Doc. 302] to suppress evidence seized pursuant to a warrantless search on April 29, 2009; Defendant Alejandro De La Cruz–Plancarte's motion [Doc. 322] to suppress evidence obtained during the same warrantless search; and Defendant Javier De La Cruz–Loya's motion [Doc. 297] to suppress the voice exemplars taken for purpose of identification on April 29, 2009, and his post- Miranda statements obtained on April 29, 2009, and the evidence seized during the same warrantless search; Defendant Otha Barnes' motion [Doc. 315] to suppress evidence seized based on a warrantless search on December 10, 2008, and the voice exemplars obtained that date; Defendant Gerald Durrance's motions [Doc. 304 and 455] to suppress evidence seized pursuant to a warrantless search on April 29, 2009; Defendant Martina Flores' motion [Doc. 349] to suppress evidence seized on April 29, 2009, seized pursuant to federal search warrants for the residences located at 604 and 608 Sandyhills Avenue, McAllen, Texas; Defendant Noe Aguilar–Camudio's motions [Docs. 331, 332, and 334] to suppress evidence seized based on a warrantless search and statements obtained on April 29, 2009; Defendants Jorge Anaya–Medina's motion [Doc. 328], Defendant Luis Haces–Delgado's motion [Doc. 342] and Defendant Martina Flores' motion [Doc. 351] to suppress the evidence obtained from the wiretap orders; Defendant Luis Haces–Delgado's motions [Docs. 340 and 341] to suppress evidence seized pursuant to a warrantless search and statements obtained on April 29, 2009; Defendants Otha Barnes', Andres Bautista–Gallegos', Noe Aguilar–Camudio's, and Luis Haces–Delgado's motions [Docs. 306, 329, 333 and 381] for severance; Defendant Jorge Anaya–Medina's request [Doc. 487] for a hearing on his wire tap motion; Defendant Martina Flores' request [Doc. 575] for a Franks hearing in connection with her wire tap motion; Defendants Otha Barnes' and Luis Haces–Delgado's motions [Docs. 306 and 381] in limine; Defendant Noe Aguilar–Camudio's request [Doc. 333] for an evidentiary hearing in connection with his motion for severance; Defendants Alfonso Rios' and Noe Aguilar–Camudio's motions [Docs. 335 and 338] for a bill of particulars; and Defendants Otha Barnes', Noe Aguilar–Camudio's and Luis Haces–Delgado's motions [Docs. 309, 330, 382] to disclose confidential informant.

After consideration of the facts established at the various evidentiary held on the motions to suppress, of the arguments and briefs of the Defendants and the Government, and of the binding and persuasive legal authority, the court makes the following recommendations and enters the following orders resolving the pending motions.

Defendants Anaya–Medina's, Cruz–Plancarte's and Cruz–Loya's Motions to Suppress Evidence and Statements

Pending before the court are Defendant Jorge–Alejandro Anaya–Medina's (“Cokis”) motion [Doc. 301] to suppress statements ¹ obtained on April 29, 2009, and motion [Doc. 302] to suppress evidence seized pursuant to a warrantless search on April 29, 2009, at 2265 Ranch Trial, Norcross, Georgia; Defendant Alejandro De La Cruz–Plancarte's (“Valda–Ceja”) motion [Doc. 322] to suppress evidence obtained during the same warrantless search; and Defendant Javier De Le Cruz–Loya's (“Loza–Cruz”) motion [Doc. 297] to suppress statements obtained on April 29, 2009, and evidence seized during the same warrantless search.² An evidentiary hearing was held on the motions to suppress on January 28, 2010.³ [Doc. 408]. Defendants Cokis and Loza–Cruz contend that the voice exemplars that they gave on April 29, 2009, prior to being advised of their rights pursuant to Miranda violated their Fifth and Sixth Amendment rights to remain silent and to counsel. [Doc. 438; Doc. 442 at 12]. Defendants Cokis and Valda–Ceja contend that the consent to search obtained from Valda–Ceja was not voluntary; therefore, the warrantless search of their residence violated their Fourth Amendment rights. And Defendant Loza–Cruz contends that he refused entry into the residence or any search of the residence; therefore, the warrantless search of the residence violated his Fourth Amendment rights. [Doc. 442 at 8–12].

The Government responds to the motions to suppress evidence contending that Defendant Valda–Ceja's consent was voluntary and gave the agents authority to search all common areas of the residence and all bedrooms with the exception of the bedroom of Defendant Loza–Cruz; therefore, excepting evidence seized from that bedroom, the Government intends to offer at trial all other items seized at the residence against all three Defendants. [Doc. 466 at 8–10]. As to the motions to suppress the voice exemplars, the Government acknowledges that Defendants Cokis and Loza–Cruz were not advised of their Miranda rights prior to the voice exemplars being taken; however, the Government contends Defendants were not in custody at the time the voice exemplars were taken. Therefore, the Government argues that taking the voice exemplars did not violate Defendants' rights. [ Id. at 10–12]. And the Government has advised the court and counsel for Defendants that the voice exemplars will only be used for the purpose of identification.

I. Facts

On April 29, 2009, members of one of the Strike Force (“SF”) Groups were assisting another group within the SF, made up of Federal Bureau of Investigation (“FBI”) Special Agents, with the arrest of an individual known as Cokis for whom a federal arrest warrant had been issued. (Tr. at 7–8, 54–55, 73, 85). Based on information provided to the SF identifying the residence where Cokis was believed to be residing, the agents went to 2265 Ranch Trial in Norcross, Georgia. (Tr. at 8–9, 54–55). The agents, numbering eleven to thirteen,...