United States v. Rodriguez-Arvizu
| Decision Date | 12 October 2021 |
| Docket Number | CR-15-01390-003-TUC-JGZ (EJM) |
| Parties | United States of America, Plaintiff, v. Abelardo Rodriguez-Arvizu, Defendant. |
| Court | U.S. District Court — District of Arizona |
REPORT AND RECOMMENDATION
Pending before the Court is the defendant's Motion to Suppress his statements made to agents with the Federal Bureau of Investigation (“FBI”). [Doc. 144.] The defendant alleges the following grounds in support of his motion: (1) a violation of Federal Rule of Criminal Procedure 4(c)(3)(A) because the FBI agents did not show him the arrest warrant or advise him of the charges upon his arrest; (2) a Fifth Amendment violation based on FBI agents questioning him after he previously invoked his Miranda rights, including his right to counsel, while in Border Patrol custody prior to FBI agents arresting him on the warrant; (3) a Sixth Amendment violation because he did not knowingly intelligently, and voluntarily waive his right to counsel prior to the FBI interview; and (4) a violation of McNabb-Mallory/18 U.S.C. § 3501(c) because he was not promptly presented to a magistrate judge following his arrest by Border Patrol, and as a result, his confession to the FBI obtained two days after his arrest by Border Patrol was involuntary. As discussed in excruciating detail below, the Court recommends that the District Court grant the Motion to Suppress based on the first three grounds.
On September 7, 2016, a federal grand jury sitting in Tucson Arizona, issued a Superseding Indictment charging the defendant and other individuals with the following offenses (1) Conspiracy to Interfere with Commerce by Robbery, in violation of 18 U.S.C. § 1951; (2) Possession of a Firearm in Furtherance of a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i); (3) Conspiracy to Possess with Intent to Distribute Marijuana, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(D) & 846; and (4) Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). [Doc. 30.]
The charges in the Superseding Indictment stem from an incident that occurred on October 24, 2014, during which a Border Patrol agent shot and killed a twenty-three-year-old Mexican National. Border Patrol agents were patrolling in the desert just outside of Tucson, Arizona, in an area where “rip crews” operated. Generally speaking, a “rip crew” is a group of armed individuals who steal drugs usually marijuana, from Mexican Nationals transporting drugs on foot into the United States. When one of the agents came upon the suspect, he identified himself as a Border Patrol agent and yelled at the suspect to stop. As the agent was pursuing the suspect, the agent saw another suspect closer to him and began pursuing the second suspect. Because this suspect appeared to grab for a weapon in his waistband, the agent shot the man, who later passed away. No other persons were found or arrested by Border Patrol agents at the scene of the shooting.
An arrest warrant for the defendant was issued as a result of the Superseding Indictment. Because the defendant's whereabouts were unknown, FBI Agent Michelle Terwilliger, who is the case agent, entered the warrant, as well as details about the defendant, the offenses, and her contact information, into various computer databases used by law enforcement. As a result, if the defendant had contact with law enforcement in the United States, that law enforcement agency would become aware of the arrest warrant when a criminal records check was done using these databases. And in turn, Agent Terwilliger would be contacted so she could execute the arrest warrant.
On November 18, 2019 - five years after the shooting and three years after the return of the Superseding Indictment and issuance of the arrest warrant - the defendant was arrested by Border Patrol agents in Sasabe, Arizona on a suspected immigration violation. The defendant was transported from Sasabe to the Tucson Border Patrol Station. The defendant went through “booking” procedures at the Tucson station. However, on November 19, 2019, he was taken to the Douglas Border Patrol Station because the Tucson station was over capacity.
At the Douglas station at around 5:30 p.m., a criminal and immigration history query revealed the arrest warrant. Upon discovering the warrant, a supervisory Border Patrol agent asked Border Patrol Agent Verduzco to “process” the defendant. Part of the processing included advising the defendant of his Miranda rights. Because the defendant invoked his Miranda rights, Agent Verduzco did not question the defendant. At around 6:00 p.m., either during processing or shortly thereafter, a supervisory Border Patrol agent contacted Agent Terwilliger to let her know the defendant was in Border Patrol custody. Agent Terwilliger asked Border Patrol to transport the defendant to the Tucson Border Patrol Station so she did not have to drive to Douglas that evening and could instead pick up the defendant the following morning in Tucson.
The defendant arrived at the Tucson Border Patrol Station early in the morning (about 1:30 a.m.) on November 20, 2019. At around 9:45 a.m., Agent Terwilliger and FBI Agent Oscar Ramirez, who is a Spanish speaker, arrested and took custody of the defendant. During the ride to the FBI office in Tucson, the defendant allegedly made spontaneous statements to and asked questions of Agent Ramirez, some of which agents claim pertained to the charges that led to his arrest by the FBI. Once at the FBI office in Tucson, the defendant was advised of his Miranda rights in Spanish by Agent Ramirez. The defendant allegedly waived his rights and agreed to speak with Agent Ramirez. After the interview, the defendant was transported to the Federal Courthouse in Tucson for his initial appearance before a magistrate judge at 2:00 p.m. A. The Motion to Suppress
On June 1, 2021, the defendant filed a Motion to Suppress his statements to FBI agents on the grounds detailed above. The defendant alleges a violation of Federal Rule of Criminal Procedure 4(c)(3)(A) because he was not shown the arrest warrant or explained the charges upon his arrest and argues that suppression of his statements is an appropriate remedy for that violation. The government argues that this rule was not violated because, even though the defendant was not shown the arrest warrant or informed of the charges, he demonstrated that he knew the charges that led to his arrest by the FBI.
The defendant also argues that suppression of his statements is warranted because his Fifth Amendment rights were violated when FBI agents questioned him after he invoked his Miranda rights while in Border Patrol custody. The government argues that there was no violation because the FBI agents were legally entitled to question the defendant about non-immigration related charges after he later validly waived his Miranda rights. The government alternatively argues that the defendant's reinitiation of a conversation with FBI agents allowed the agents to question him once he later validly waived his Miranda rights.
The defendant further argues that his statements should be suppressed based on a violation of his Sixth Amendment right to counsel, which attached upon issuance of the Superseding Indictment, because he did not “knowingly, intelligently, and voluntarily” waive that right. The government argues that the video and transcript of the defendant's interview clearly demonstrates that the defendant's waiver of his rights was knowing, intelligent, and voluntary.
Finally, the defendant argues that his statements should be suppressed under McNabb-Mallory/18 U.S.C. § 3501(c) because they were obtained over six hours after his arrest by Border Patrol on November 18, 2019, and prior to his presentment to a magistrate judge on November 20, 2019. The government argues that the defendant's statement was clearly obtained within six hours of his arrest by FBI agents, and the defendant's arrest by Border Patrol agents is not relevant to the analysis under McNabb-Mallory/18 U.S.C. § 3501(c).
B. The Evidentiary Hearing
The Court held an evidentiary hearing on the suppression motion over the course of three days: June 25, 2021, July 2, 2021, and July 23, 2021. The following witnesses testified: FBI Agent Michelle Terwilliger; Border Patrol Agent Hector Verduzco; FBI Agent Oscar Ramirez; and ATF Agent (and former Border Patrol Agent) James Cauble, Jr. Their testimony is set forth below.
Michelle Terwilliger has been a Special Agent with the Federal Bureau of Investigation (“FBI”) for almost 18 years and has spent her entire career at the FBI in Tucson, Arizona. (6/25/21 Tr. at 8.) She was previously employed with the Pennsylvania State Police as a DNA forensic scientist. Id. Agent Terwilliger has been assigned to the violent crime squad at the FBI for the past 12 years; she has also worked in the cybersquad doing child pornography investigations, the drug squad, and the counterterrorism squad. Id. at 9.
On October 24, 2014, Agent Terwilliger became aware of a shooting that occurred just outside of Tucson. Id. Specifically, she learned that a Border Patrol Agent had shot and killed an individual. Id. at 10. When Agent Terwilliger arrived at the scene of the shooting, she suspected that the criminal activity that led to the shooting involved a “rip crew.” Id. She explained that a rip crew usually involves a group of individuals armed with weapons who steal drugs being transported by marijuana backpackers. Id. Border Patrol agents advised her that there were five individuals in this rip crew. Id. at 10-11. The Evidence Recovery Team discovered...
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