US v. Montoya-Robles
| Decision Date | 07 August 1996 |
| Docket Number | No. 96-CR-0064-S.,96-CR-0064-S. |
| Citation | 935 F. Supp. 1196 |
| Parties | UNITED STATES of America, Plaintiff, v. Jose MONTOYA-ROBLES, Defendant. |
| Court | U.S. District Court — District of Utah |
Elizabethanne Stevens, Asst. U.S. Atty., Salt Lake City, Utah, for Plaintiff.
Mary C. Corporon, Salt Lake City, Utah, for Defendant.
Before the court is an "Appeal From and Objection to Report and Recommendation" filed by defendant Jose Montoya-Robles. By this document, defendant objects to a Report and Recommendation signed by the magistrate judge on June 28, 1996.
The court has considered the matter de novo and concludes that the Report and Recommendation is correct in every material respect and adopts it as the court's own opinion. Accordingly, defendant's motion to suppress is hereby DENIED.
The defendant, Jose Montoya-Robles, has been indicted on one count of reentry of a deported alien subsequent to a conviction for an aggravated felony (8 U.S.C. § 1326) (File Entry # 9). The defendant has made a motion to suppress "statements of the defendant under 18 U.S.C. § 3501(a) and based on alleged violation of the Constitution of the United States" (File Entry # 16). The defendant also seeks suppression of the "fruits" of the statements. The defendant contends a statement was taken from him in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant contends that prior to his deportation from the United States through the port of El Paso, Texas, on various instances, defendant was interviewed by Immigration and Naturalization Service (INS) officers relative to his citizenship and status and no Miranda warnings were given to the defendant (Defendant's memorandum, File Entry # 17). Defendant contends that on May 1, 1994 when he was again found in the United States in Texas he was again questioned by INS agents without Miranda warnings. Defendant contends there may also have been other such questioning by INS agents. The defendant also contends that all records of defendant's prior deportations must be suppressed (Id.).
The United States filed a response to the motion (File Entry # 23). It states that no evidence of any statements defendant made to any INS agent will be offered at trial, except for a statement made by defendant to INS Special agent Creighton West on March 26, 1996. That statement was preceded by a Miranda warning and a waiver of rights was made by defendant.
The United States indicated it would offer into evidence orders to show cause, warrants of deportation, immigration judge orders, and advice of felony which relate to each of five deportations the United States contends apply to the defendant. An audio tape or transcript of defendant's deportation hearing of September 18, 1995 will be offered in evidence. The United States also contends no Miranda warning was required to be given by INS agents interviewing the defendant for deportation (File Entry # 23).
Hearing on the motion to suppress was held on May 20, 1996. On May 30, 1996 the defendant submitted a supplemental memorandum (File Entry # 26) in which defendant contends the Miranda warning given to defendant by Agent West was defective because there was no specific statement that counsel would be appointed for the defendant "free of charge" if he could not afford counsel (Id.). The United States submitted a supplemental response asserting the Miranda warning that was given to the defendant was adequate (File Entry # 29).
The case has been referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B). This report and recommendation is submitted pursuant to the reference on the defendant's motion to suppress.
At hearing, counsel for the defendant Montoya-Robles indicated that some of the evidence relative to Montoya-Robles status, entry into, and deportation from the United States on more than one occasion is from Immigration and Naturalization Service (INS) records. (Tr. pp. 3-4). The defendant contends the information in the records was obtained by questioning the defendant, without benefit of a Miranda warning.1 The INS created a record entitled "record of deportable alien" during an administrative interview with the defendant (Tr. p. 4). Defendant contended potentially incriminating statements as to family history and nationality were obtained (Tr. pp. 4-5). Also, during such an interview, the legality of the defendant's entry was asked about. Eventually this inquiry gave rise to deportation proceedings before an immigration judge. At that point the defendant was afforded an opportunity to obtain an attorney (Tr. p. 5). If a waiver of rights was obtained the defendant was deported (Tr. p. 6). Defendant contends the original administrative interviews required a Miranda warning. Defendant contends the orders and information acquired in the deportation proceedings are the fruit of prior illegal interrogation.
The United States represented that the first record of defendant's deportation is May 27, 1993 under the name of Fausto Velasquez-Rojas (Tr. p. 16). The United States indicated it intended to introduce into evidence records from the deportation proceedings. The United States intends to offer the orders to show cause, the orders of the immigration judges, 1-294 forms which advise the alien of the potential penalties on reentry, and the warrants of deportation (Tr. p. 16). A tape of the last deportation proceeding or a transcript will be introduced (Id.). No statement of the defendant will be offered except the interview on March 26, 1996, following defendant's last arrest. The statement was given to Special Agent Creighton West of the INS, after preinterrogation warnings (Tr. p. 17). Statements made during prior deportations will not be introduced. Consequently, no consideration as to Miranda need be given, as to those matters, except as to whether the records of the INS, including the deportation proceedings, are "tainted" by the circumstances defendant says occurred.
The United States will also seek to introduce a memorandum conviction of defendant under 8 U.S.C. § 1325 which occurred May 4, 1994 and his deportation on August 3, 1994, under the name of Miguel Zamora-Garcia (Tr. p. 18). Records of five deportations will be offered. The records to be introduced are Exhibits 2-20.
Defendant did not testify or provide any affidavits as to the absence of Miranda warnings in conjunction with any prior deportation action. His position is based only on argument.
Defendant also challenges the admissibility of the statement given to Agent Creighton West. Agent West testified at the suppression hearing.
Agent West testified that he is a Special Agent with the INS and investigates criminal and administrative violations of the Immigration and Nationality Act and related laws (Tr. p. 21). West speaks Spanish (Tr. p. 22).
The agent interviewed defendant on March 26, 1996 after defendant's release to the INS following his release from the Salt Lake County Jail. The interview was at the INS office in Murray, Utah. The interview was in Spanish (Tr. pp. 22-23). The defendant was advised of his rights from FD Form-395, the Spanish version (Pl.Exh. I; Tr. pp. 23-24). Agent West read the form to defendant and asked him if he understood his rights (Tr. p. 23). When the agent was satisfied defendant understood and said so, the waiver portion of the form was read to him. Defendant was asked if he were willing to answer questions and he agreed. Defendant signed his name and Agent West also signed the form (Pl.Exh. 1 pp. 23-24). The interrogation was on March 26, 1996 staring at 1:30 p.m. (Tr. p. 24). The warning given was:
The waiver of rights advice read to the defendant was:
Defendant signed the form at 1:34 p.m. The interview was in Spanish and defendant responded in Spanish. Defendant admitted the elements of the present offense and his prior deportation (Tr. pp. 26-27). The agent did not make any threats or promises and used no force (Tr. p. 28). The defendant may have been in handcuffs. The defendant responded without hesitation.
The agent did not tell defendant he was investigating a potential criminal prosecution (Tr. p. 29). The agent agreed the warning did not expressly say if defendant wanted an attorney that one would be provided "free of charge" (Tr. p. 30). The warning did say "if you cannot pay the expenses of an attorney, one will be assigned to you or provided to you before the beginning of questioning" (Tr. p. 30). Nothing in the advice is said about it being free of charge (Id).
Following the hearing, defendant submitted a supplemental memorandum on May 30, 1996 and...
To continue reading
Request your trial
-
U.S. v. Beckwith
...of the primary illegality. Id.; See also United States v. Eylicio-Montoya, 70 F.3d 1158 (10th Cir.1995)(same); United States v. Montoya-Robles, 935 F.Supp. 1196 (D.Utah 1996)(same). In this case, when defendant was questioned by Agents Irwin and Castro, he was apparently still held on the C......
-
United States v. Madrid-Quezada
...that information became relevant to a later criminal proceeding for illegal reentry. See id. ; see also United States v. Montoya-Robles , 935 F.Supp. 1196, 1201–02 (D. Utah 1996) (collecting cases on unwarned statements allowed in subsequent immigration proceedings).Statements made to borde......
-
U.S. v. Guzman
...F.2d 1043, 1047-48 (9th Cir.1990); United States v. Sangineto-Miranda, 859 F.2d 1501, 1515 (6th Cir.1988); United States v. Montoya-Robles, 935 F.Supp. 1196, 1203-04 (D.Utah 1996); United States v. Kirsteins, 87-CV-964, 1989 WL 98628 (N.D.N.Y. Aug.22, 1989), rev'd on other grounds, 906 F.2d......