United States v. Cordova

• Decision Date: 03 November 2011
• Docket Number: No. 1:09–CR–475–WSD–CCH–5.,1:09–CR–475–WSD–CCH–5.
• Citation: 829 F.Supp.2d 1342
• Parties: UNITED STATES of America, v. Juan Reynaldo CORDOVA, Defendant.
• Court: U.S. District Court — Northern District of Georgia

829 F.Supp.2d 1342

UNITED STATES of America,

v.Juan Reynaldo CORDOVA, Defendant.

No. 1:09–CR–475–WSD–CCH–5.

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

Nov. 3, 2011.

Jeffrey Aaron Brown, Paul Rhinehart Jones, Office of United States Attorney, Atlanta, GA, for Defendant.

OPINION AND ORDER

WILLIAM S. DUFFEY, JR., District Judge.

This matter is before the Court on Magistrate Judge C. Christopher Hagy's Report and Recommendation (“R & R”) [174] regarding Juan Reynaldo Cordova's (“Defendant”) Supplemental Motion to Suppress Evidence [123] and Second Motion to Suppress Statements [132].

I. BACKGROUND ¹

On December 17, 2010, 758 F.Supp.2d 1367 (N.D.Ga.2010), the Court issued an Order (the “December 17th Order”) granting Defendant's Motion to Suppress Evidence [41].² Prior to issuing the December 17th Order, Defendant was allowed to withdraw his initial Motion to Suppress Statements [40] in light of evidence presented at an evidentiary hearing by the Government.³

After the December 17th Order was issued, Defendant filed a Supplemental Motion to Suppress Evidence [123] and Second Motion to Suppress Statements [132]. Defendant seeks to suppress all statements made to law enforcement agents on March 26, March 30, and March 31, 2009, because: (1) they were obtained as a result of evidence the Court found was illegally obtained and must be suppressed as “fruits of the poisonous tree;” (2) they were obtained in violation of his Fifth Amendment rights because all the statements are tainted based on an initial failure to provide warnings as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and (3) they were not voluntary based on coercive police action in the form of promises of immunity and threats of incarceration. The Government did not oppose the motions with regard to the statements made on March 26, and March 30, 2009, and stated that it would not seek to introduce those statements at trial. (R & R at 7.)

After holding an additional evidentiary hearing and receiving post-hearing briefings from the parties, the Magistrate Judge concluded that Defendant's motions should be considered unopposed and granted regarding the statements made on March 26, and March 30, 2009. He concluded that all the challenged statements should be suppressed as “fruits of the poisonous tree” derived from the illegal search of Defendant's residence on March 26, 2009. The Magistrate Judge considered and rejected Defendant's alternative arguments of Fifth Amendment violations and involuntariness regarding why the statements made on March 31, 2009, should be suppressed. No objections to the R & R were filed by either party.

II. DISCUSSIONA. Standard of Review on the Magistrate Judge's R & R

After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir.1982), cert. denied, 459 U.S. 1112, 103 S.Ct. 744, 74 L.Ed.2d 964 (1983). No objections to the R & R have been filed and the Court thus must conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984).

Objections were not filed with regard to the findings or recommendations in the R & R [174]. The Court has reviewed the findings and recommendations in the R & R and concluded plain error was not committed in reaching them. The Court specifically agrees, based on the facts here, with the Magistrate Judge's conclusion that the March 31, 2009, statements were obtained over the course of multiple interrogations with Defendant during which evidence illegally seized on March 26, 2009, was repeatedly used to persuade Defendant that the evidence of his participation in the robberies under investigation was compelling and his involvement conclusively established. It was this illegal evidence that caused Defendant to admit to his involvement. The Court agrees with the Magistrate Judge's well-reasoned conclusion that the March 31, 2009, statements “were ‘fruit of the poisonous tree’ of the illegal search of [Defendant's] residence on March 26, 2009.” (R & R at 33).

III. CONCLUSION

For the foregoing reasons,

IT IS HEREBY ORDERED that the Court ADOPTS the Magistrate Judge's R & R [174].

IT IS HEREBY FURTHER ORDERED that Defendant's Supplemental Motion to Suppress Evidence [123] and Second Motion to Suppress Statements [132] are GRANTED.

REPORT AND RECOMMENDATION

C. CHRISTOPHER HAGY, United States Magistrate Judge.

Defendant Juan Reynaldo Cordova (“Defendant”) is charged in the superseding indictment with sixteen separate counts related to the armed robberies of seven gas stations in DeKalb County, Georgia, on the dates of March 15, 2009, March 17, 2009, March 19, 2009, March 21, 2009, and March 23, 2009. Defendant is charged with one count of conspiracy to engage in the robbery of a business engaged in interstate commerce, in violation of 18 U.S.C. § 1951; seven counts of robbing a business engaged in interstate commerce, in violation of 18 U.S.C. §§ 2 and 1951, and eight counts of using a firearm during a crime of violence, in violation of 18 U.S.C. §§ 2 and 924(c). The action is before the Court on Defendant's Supplemental Motion to Suppress Evidence [123] and Second Motion to Suppress Statements [132].

The Court held an evidentiary hearing on Defendant Cordova's Motions to Suppress on June 29, 2011, and a transcript of that hearing [169] was filed on July 20, 2011. Thereafter, Defendant filed a post-hearing brief in support of his Motions to Suppress [170] on August 5, 2011, the Government filed a response brief [171] to the Motions to Suppress on August 23, 2011, and Defendant filed a reply brief [172] to the Government's response on August 29, 2011, at which time the Motions to Suppress became ripe for resolution by the Court.

Having heard the evidence and having reviewed the transcript of the evidentiary hearings and the briefs of the parties, the undersigned RECOMMENDS that Defendant's Supplemental Motion to Suppress Evidence [123] and Second Motion to Suppress Statements [132] be GRANTED.

BACKGROUND FACTS

Many of the relevant facts of this case are set out at length in the Report and Recommendation [99] of the undersigned dated June 23, 2010, 2010 WL 5200947, and the Orders entered by Judge Duffey [110][119] on September 10, 2010 and December 17, 2010, 758 F.Supp.2d 1367. Neither party has contested those facts and the undersigned hereby adopts the facts as set forth in the Report and Recommendation [99] and Orders [110][119].

In addition to those facts, the undersigned takes the following relevant facts from the evidentiary hearing that was held before the undersigned on February 3, 2010, on Defendant Cordova's previous Motion to Suppress Statements, Motion to Suppress Evidence, Motion to Dismiss and other motions.

In or around March of 2009, Detective Benny McCollough of the Gwinnett County Police Department was conducting an investigation involving a string of armed robberies in Gwinnett County and asked for information and assistance from other law enforcement agencies regarding the armed robberies. Transcript of February 3, 2010 Hearing (“T.”) [81] at 53, 153–54. In the course of that investigation, law enforcement officers conducted a warrantless search of Defendant Cordova's residence on March 26, 2009, and discovered a gun, a case of Modella brand beer (which had been the brand of beer reported stolen in some of the armed robberies), some cigarettes, a black and white hooded sweatshirt, a camera, an iPhone, and another cell phone. T. at 26, 75–76, 125–6. According to Special Agent Jason Tyler of U.S. Immigration and Customs Enforcement (“ICE”), who had participated in the search, the sweatshirt had a distinctive design that he recognized from one of the photographs from the armed robbery surveillance videos. T. at 126.

After the evidence had been seized from Defendant Cordova's residence, Defendant Cordova was driven to the Gwinnett County Police Department by law enforcement officers in order to answer questions. T. at 127, 229–30. According to Officer Jason Summers, he asked Defendant to come to the police station and Defendant “agreed” to come to the police station. T. at 127. Special Agent Tyler testified as follows about the decision to ask Defendant to come to the police station:

It was my understanding that Officer Summers had contacted Detective McCollough and advised him of what we had found in Mr. Cordova's room, specifically the jacket, the cigarettes, the beer, and the gun. And after he contacted him, it was decided Gwinnett County, one of the two, Summers or Mr. McCollough, they were going to ask Mr. Cordova to come down to the police department to speak with Detective McCollough.

T. at 78.

At the evidentiary hearing before the undersigned on July 20, 2011, Defendant Cordova testified that, immediately after the search of his residence on March 26, 2009, Officer Summers told him that he was being taken to the police station for questioning. Transcript of July 20, 2011 Hearing (“T2.”) [169] at 8. Defendant further testified that he was told that he was required to go to the police station by either Officer Summers or Officer Ledgerwood and was not given any choice about it. T2. at 18–19. According to Defendant, “[t]hey didn't threaten me but I didn't have any other option because they told me that I needed to go with them.” T2. at 20.

Upon arrival at the Gwinnett County Police Department, Defendant Cordova was questioned by Detective McCollough, and a video recording was made of the interview. T. at 229–30; Gov. Ex. 1, 2. It is undisputed that Detective McCollough did not advise Defendant of his Miranda rights, including his right to remain silent, at that time. T. at 166–67; T.2 at 8–9. According to Detective McCollough, he...