The opinion of the court was delivered by: GORDON THOMPSON, JR.
On October 29, 1991, defense counsel filed a motion on behalf of defendant ALFREDO MORAN-GARCIA requesting the suppression of statements. The defendant and counsel appeared before this Court for oral motions on November 12, 1991 at 2:00 p.m. Having fully considered this matter, including review of the papers filed by the parties, the authorities cited therein, and the arguments presented, the Court rules as follows:
On September 5, 1991, an undercover agent met at various times with defendant MORAN-GARCIA and his codefendants for the purpose of purchasing five kilograms of cocaine. Following a pre-arranged arrest signal, agents arrested MORAN-GARCIA and his co-defendants. The Government alleges that an agent advised MORAN-GARCIA of his constitutional Miranda rights and that MORAN-GARCIA waived his right to remain silent. After this alleged waiver, MORAN-GARCIA spoke with DEA agents and confessed to the sale of cocaine.
Moran-Garcia has not filed an affidavit or declaration to support his motion to suppress statements. In addition, although defense counsel's moving papers request suppression of statements, these papers do not make factual allegations that defendant's Miranda rights were violated.
At the time set for the hearing of this motion, the Court advised defendant that it would not hold an evidentiary hearing on his motion to suppress statements because there were no affidavits or declarations filed to sufficiently place facts into issue. Defense counsel acknowledged that he was aware of the Court's policy and stated his objection to the Court's policy.
It is well-settled that a custodial interrogation conducted to obtain incriminating statements must (1) be preceded by procedural safeguards and (2) follow from a knowing, intelligent and voluntary waiver of Fifth and Sixth Amendment rights. Miranda v. Arizona, 348 U.S. 437 (1966). Moreover, the Government bears the burden of establishing that Miranda has been complied with. See United States v. Heldt, 745 F.2d 1275, 1277 (9th Cir. 1984) (citing North Carolina v. Butler, 441 U.S. 369, 373, 60 L. Ed. 2d 286 , 99 S. Ct. 1755 (1979)). The Government will not be required to fulfill this burden, however, until the defendant sufficiently places factual allegations before the Court. Cognizant of this principle, the Court has for some time followed a policy of requiring that declarations must be provided in support of certain criminal motions. The application of this rule in the present context results in the Court denying defendant's request for an evidentiary hearing.
A. THE COURT'S RULE REQUIRING DECLARATIONS
The arguments advanced by defense counsel at the hearing for this motion are similar to those that have been advanced by defense counsel on numerous occasions since the Court began this policy. It is based on this input, as well as on the variety of factual situations in which this issue has arisen, that the Court's policy has evolved to the form that it explicitly takes in the General Order which the Court separately issues today. The Rule adopted in the General Order states:
Rule GT-415. DECLARATIONS IN SUPPORT OF AND IN OPPOSITION TO CRIMINAL MOTIONS.
Where a criminal motion requires a predicate factual finding, the motion shall be supported by a declaration. To contest the facts provided in support of such a motion, the opposition papers shall likewise be supported by a declaration, thereby placing material facts into dispute. The court need not grant an evidentiary hearing where either party fails to properly support its motion or opposition.
b) Contents of Declarations
Each declaration shall set forth, under penalty of perjury, all facts then known and upon which it is contended the motion should be granted or denied. Each declaration shall contain only facts that would be admissible under the Federal Rules of Evidence. Additionally, each declaration shall avoid conclusions of law and argument. Finally, each declaration shall show affirmatively that the declarant is competent to testify to the matters stated therein.
c) Timely Filing of Affidavits and Declarations
Affidavits and declarations submitted in support of and in opposition to criminal motions shall be filed in a timely manner in accordance with the filing deadlines set forth in Local Rules 415-4 and 415-5.
d) Availability of Declarants
Each declarant in support of and in opposition to criminal motions shall be made available for cross-examination at the hearing of the motion, unless the opposing party does not dispute the facts contained in the declaration.
Although counsel in this particular case could not argue that he was unaware of this policy, the Court acknowledges that counsel who practice less often in this Courtroom may be unaware of this policy. Indeed, on occasion the Court has allowed defense counsel to supplement moving papers at a later date in order to comply with the declaration requirement. It is precisely for this reason that the Court today publishes the General Order making its policy on this matter fully known to the public.
B. THE COURT'S DISCRETION TO HOLD EVIDENTIARY HEARINGS