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September 9, 2005.


The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge

The government asserts that Mr. Perez-Bermunen was contacted and arrested by Agent Kevin Wies near San Ysidro, California on or about July 21, 2005 due to a seismic sensor activation. Agent Wies stopped him and interrogated Mr. Perez-Bermunen as to his immigration status and his country of citizenship. Mr. Perez-Bermunen was never advised of his Miranda rights prior to this interrogation. Mr. Perez-Bermunen was then transported to the at the Imperial Beach, California, Border Patrol Station for further processing. There, Agent Hernandez confirmed Mr. Perez-Bermunen's identity and questioned his again. Prior to this interrogation, Agent Hernandez allegedly advised Mr. Perez of his Miranda rights. Mr. Perez-Bermunen then made statements regarding his citizenship and his immigration status.

  After further record checks were performed, Mr. Perez-Bermunen was processed for prosecution under 8 U.S.C. 1326. An Indictment was filed August 5, 2005 charging Mr. Perez-Bermunen with Deported Alien Found In the United States. These motions follow.


  Mr. Perez-Bermunen recognizes that his argument below has been rejected by an en banc court of the Ninth Circuit. See United States v. Navarro-Vargas, No. 02-50663, ___ F.3d ___ (9th Cir. May 23, 2005) (en banc). He nonetheless raises it to preserve the issue.

  Mr. Perez-Bermunen moves to dismiss the Indictment due to misinstruction of the Grand Jury. While Mr. Perez-Bermunen was indicted by the June 2005 Grand Jury, counsel has no reason to believe the instructions to the Grand Jury have changed.*fn2 Mr. Perez-Bermunen's arguments are essentially those set out in Judge Hawkins' dissent in United States v. Marcucci, 299 F.3d 1156 (9th Cir. 2002), cert. denied, 1538 U.S. 934 (2003), Judge Kozinski's dissent in United States v. Navarro-Vargas, 367 F.3d 896 (9th Cir. 2004), opinion vacated by United States v. Navarro-Vargas, 367 F.3d 920 (9th Cir. 2004), and Judge Hawkins' dissent in United States v. Navarro-Vargas, ___ F.3d ___ (9th Cir. May 23, 2005) (en banc). Mr. Perez-Bermunen incorporates those arguments by reference. However, if the Court would like further briefing on this issue, Mr. Perez-Bermunen is happy to provide it. III.

  A. The Government Must Demonstrate Compliance With Miranda.

  1. Miranda Warnings Must Precede Custodial Interrogation.

  The prosecution may not use statements, whether exculpatory or inculpatory, stemming from a custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444 (1966).*fn3 Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Id. See Orozco v. Texas, 394 U.S. 324, 327 (1969).

  Once a person is in custody, Miranda warnings must be given prior to any interrogation. See United States v. Estrada-Lucas, 651 F.2d 1261, 1265 (9th Cir. 1980). Those warnings must advise the defendant of each of his or her "critical" rights. United States v. Bland, 908 F.2d 471, 474 (9th Cir. 1990). If a defendant indicates that he wishes to remain silent or requests counsel, the interrogation must cease. Miranda, 384 U.S. at 474. See also Edwards v. Arizona, 451 U.S. 484 (1981).

  Here, Mr. Perez-Bermunen was in custody at the time he was interrogation by Agent Wies. Mr. Perez-Bermunen was not fee to leave when contacted by Agent Wies. The agent identified himself as a Border Patrol Agent. Mr. Perez-Bermunen was not free to leave and was in custody for the purposes of Miranda. Similarly, when he was subsequently interrogated at the checkpoint, Mr. Perez-Bermunen was not free to leave. The Government cannot show that Mr. Perez-Bermunen had received valid Miranda warnings from Agent Hernandez. Thus, all statements made by Mr. Perez-Bermunen should be suppressed at trial. 2. The Government Must Demonstrate That Any Alleged Waiver of Mr. Perez-Bermunen's Rights Was Voluntary, Knowing, and Intelligent.

  When interrogation occurs without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant intelligently and voluntarily waived his privilege against self-incrimination and his right to retained or appointed counsel. Miranda, 384 U.S. at 475. It is undisputed that, to be effective, a waiver of the right to remain silent and the right to counsel must be made knowingly, intelligently, and voluntarily. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The standard of proof for a waiver of these constitutional rights is high. Miranda, 384 U.S. at 475. See United States v. Heldt, 745 F.2d 1275, 1277 (9th Cir. 1984) (the burden on the government is great, the court must indulge every reasonable presumption against waiver of fundamental constitutional rights).

  The validity of the waiver depends upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. Edwards v. Arizona, 451 U.S. 477, 472 (1981); Johnson v. Zerbst, 304 U.S. 458, 464 (1983). See also United States v. Heldt, 745 F.2d at 1277; United States v. McCrary, 643 F.2d 323, 328-29 (9th Cir. 1981).

  In Derrick v. Peterson, 924 F.2d 813 (9th Cir. 1990), the Ninth Circuit confirmed that the issue of the validity of a Miranda waiver requires a two prong analysis: the waiver must be both (1) voluntary, and (2) knowing and intelligent. Id. at 820. The voluntariness prong of this analysis "is equivalent to the voluntariness inquiry under the [Fifth] Amendment. . . ." Id. See infra pages 10-11.

  The second prong, however, requiring that the waiver be "knowing and intelligent," mandates an inquiry into whether "the waiver [was] made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it." Id. at 820-21 (quoting Colorado v. Spring, 479 U.S. 564, 573 (1987)). This inquiry requires that the court determine whether "the requisite level of comprehension" existed before the purported waiver may be upheld. Id. Thus, "[o]nly if the `totality of the circumstances surrounding the interrogation' reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." Id. (quoting Colorado v. Spring, 479 U.S. at 573) (emphasis in original) (citations omitted)).

  Under prevailing Ninth Circuit law, the Government bears the burden of demonstrating a Miranda waiver by clear and convincing evidence. See Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000) (en banc) (constitutional rights may ordinarily be waived only if it can be established by clear and convincing evidence that the waiver is voluntary, knowing, and intelligent) (citations omitted). Moreover, this Court must "indulge every reasonable presumption against waiver of fundamental constitutional rights." Id. (citations omitted). Unless and until the prosecution meets its burden of demonstrating through evidence that adequate Miranda warnings were given and that the defendant knowingly and intelligently waived his rights, no evidence obtained as result of the interrogation can be used against the defendant. Miranda, 384 U.S. at 479.

  Until the government meets its evidentiary burden of showing that the Miranda warnings were sufficient or that the Miranda rights were knowingly or intelligently waived, the statements must be suppressed.

  3. Local Rule Requiring Declaration Is Unconstitutional.

  "Congress may not legislatively supercede [the Supreme Court's] decisions interpreting and applying the Constitution." Dickerson v. United States, 530 U.S. 428, 437 (2000). Since Miranda rests on a constitutional foundation, id. at 438, no law or local court rule can constitutionally relieve the government of its burden to prove Mr. Perez-Bermunen voluntarily waived the Miranda protections. See id. In light of the Supreme Court's decision in Dickerson, this Court's burden-shifting Criminal Local Rule 47.1.g. — which requires that a defendant submit a declaration in support of his or her motion — is unconstitutional and therefore unenforceable.

  B. Any Statements by Mr. Perez-Bermunen Were Involuntary.

  Even when the procedural safeguards of Miranda have been satisfied, a defendant in a criminal case is deprived of due process of law if the conviction is founded upon an involuntary confession. Arizona v. Fulminante, 499 U.S. 279 (1991); Jackson v. Denno, 378 U.S. 368, 387 (1964). The government bears the burden of proving by a preponderance of the evidence that a confession is voluntary. Lego v. Twomey, 404 U.S. 477, 483 (1972).

  In order to be voluntary, a statement must be the product of a rational intellect and free will. Blackburn v. Alabama, 361 U.S. 199, 208 (1960). In determining whether a defendant's will was overborne in a particular case, the totality of the circumstances must be considered. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). Some factors taken into account have included the youth of the accused, his lack of education, his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of the detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep. Id.

  A confession is deemed involuntary whether coerced by physical intimidation or psychological pressure. Townsend v. Sain, 372 U.S. 293, 307 (1962). "The test is whether the confession was `extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence.'" Hutto v. Ross, 429 U.S. 28, 30 (1976) (quoting Bram v. United States, 168 U.S. 532, 542-43 (1897)). Accord, United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir. 1981).

  Until the government meets its burden of showing all statements of the defendant that it intends to use at trial were voluntary, all statements — even those taken before he was in "custody" — must be suppressed as involuntary.

  C. Mr. Perez-Bermunen Requests That This Court Conduct An Evidentiary Hearing.

  This Court must make a factual determination as to whether a statement was voluntarily given prior to its admission into evidence. 18 U.S.C. § 3501(a). Where a factual determination is required, courts are obligated by Fed.R.Crim.P. 12 to make factual findings. See United States v. Prieto-Villa, 910 F.2d 601, 606-10 (9th Cir. 1990). Because "`suppression hearings are often as important as the trial itself,'" id. at 609-10 (quoting Waller v. Georgia, 467 U.S. 39, 46 (1984)), these findings should be supported by evidence, not merely an unsubstantiated recitation of purported evidence in a prosecutor's responsive pleading.

  Under section 3501(b), this Court must consider various enumerated factors in making the voluntariness determination, including whether the defendant understood the nature of the charges against his and whether she understood his rights. Without the presentation of evidence, this Court cannot adequately consider these statutorily mandated factors. Mr. Perez-Bermunen accordingly requests that this Court conduct an evidentiary hearing pursuant to 18 U.S.C. § 3501(a), to determine, outside the presence of the jury, whether any and all statements made by him were voluntary.



  This request for discovery is not limited to those items that the prosecutor knows of, but rather includes all discovery listed below that is in the custody, control, care, or knowledge of any "closely related investigative [or other] agencies" under United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989): (1) Mr. Perez-Bermunen's Statements. The government must disclose: (1) copies of any written or recorded statements made by Mr. Perez-Bermunen; (2) copies of any written record containing the substance of any statements made by Mr. Perez-Bermunen; and (3) the substance of any statements made by Mr. Perez-Bermunen that the government intends to use, for any purpose, at trial. See Fed.R.Crim.P. 16(a)(1)(A). This request specifically includes a copy of any video or audio taped statement of Mr. Perez-Bermunen and any rough notes inspectors took of his statements.

  (2) Mr. Perez-Bermunen's Prior Record. Mr. Perez-Bermunen requests disclosure of his prior record, if any exists. This includes Mr. Perez-Bermunen's record of contacts with the United States Border Patrol and/or the Immigration and Naturalization Service, even if those contacts did not result in prosecution. See Fed.R.Crim.P. 16(a)(1)(B).

  (3) Arrest Reports, Notes and Dispatch Tapes. Mr. Perez-Bermunen also specifically requests the government to turn over all arrest reports, notes, dispatch or any other tapes that relate to the circumstances surrounding his arrest or any questioning. This request includes, but it is not limited to, any rough notes, photographs, records, reports, transcripts or other discoverable material. Fed.R.Crim.P. 16(a)(1)(A); Brady v. Maryland, 373 U.S. 83 (1983). The government must produce arrest reports, investigator's notes, memos from arresting officers, dispatch tapes, sworn statements, and prosecution reports pertaining to the defendant. Fed.R.Crim.P. 16(a)(1)(B) and (c); Fed.R.Crim.P. 26.2 and 12(i).

  (4) Documents and Tangible Objects. Mr. Perez-Bermunen requests the opportunity to inspect, copy, and photograph all documents and tangible objects which are material to the defense or intended for use in the government's case-in-chief or were obtained from or belong to him. See Fed.R.Crim.P. 16(a)(1)(c). This request specifically includes Mr. Perez-Bermunen's A-file and any existing deportation tapes.

  (5) Reports of Scientific Tests or Examinations. Mr. Perez-Bermunen requests the reports of all tests and examinations which are material to the preparation of the defense or are intended for use by the government at trial. See Fed.R.Crim.P. 16(a)(1)(D).

  (6) Expert Witnesses. Mr. Perez-Bermunen requests the name and qualifications of any person that the government intends to call as an expert witness. See Fed.R.Crim.P. 16(a)(1)(E). In addition, Mr. Perez-Bermunen requests written summaries describing the bases and reasons for the expert's opinions. See id. Mr. Perez-Bermunen requests that the Court order the government to notify the defense as such in a timely manner, so that a proper 104 (Kumho-Daubert) admissibility hearing can be conducted without unduly delaying the trial.

  (7) Brady Material. Mr. Perez-Bermunen requests all documents, statements, agents' reports, and tangible evidence favorable to the defendant on the issue of guilt or punishment. See Brady v. Maryland, 373 U.S. 83 (1963). In addition, impeachment evidence falls within the definition of evidence favorable to the accused, and therefore Mr. Perez-Bermunen requests disclosure of any impeachment evidence concerning any of the government's potential witnesses, including prior convictions and other evidence of criminal conduct. See United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976). In addition, Mr. Perez-Bermunen requests any evidence tending to show that a prospective government witness: (i) is biased or prejudiced against the defendant; (ii) has a motive to falsify or distort his or her testimony; (iii) is unable to perceive, remember, communicate, or tell the truth; or (iv) has used narcotics or other controlled substances, or has been an alcoholic.

  (8) Request for Preservation of Evidence. Mr. Perez-Bermunen specifically requests the preservation of all physical or documentary evidence that may be destroyed, lost, or otherwise put out of the possession, custody, or care of the government and that relate to the arrest or the events leading to the arrest in this case. Specifically all information regarding both the intrusion alarm and intrusion device including but not limited to the workings of the device, any calibration procedures, location of device and footprints found on the device.

  (9) Any Proposed 404(b) Evidence. "[U]pon request of the accused, the prosecution . . . shall provide reasonable notice in advance of trial . . . of the general nature" of any evidence the government proposes to introduce under Rule 404(b). Fed.R.Evid. 404(b). Mr. Perez-Bermunen requests such notice three weeks before trial in order to allow for adequate trial preparation.

  (10) Witness Addresses. Mr. Perez-Bermunen's counsel requests access to the government's witnesses. Thus, counsel requests a witness list and contact phone numbers for each prospective government witness. Counsel also requests the names and contact numbers for witnesses to the crime or crimes charged (or any of the overt acts committed in furtherance thereof) who will not be called as government witnesses.

  (11) Jencks Act Material. Mr. Perez-Bermunen requests production in advance of trial of all material discoverable pursuant to the Jencks Act, 18 U.S.C. § 3500. Advance production will avoid needless delays at pretrial hearings and at trial. This request includes any "rough" notes taken by the agents in this case; these notes must be produced pursuant to 18 U.S.C. § 3500(e)(1). This request also includes production of transcripts of the testimony of any witness before the grand jury. See 18 U.S.C. § 3500(e)(3).

  (11a) Original I-213s, G-166s, and 1215Bs. Mr. Perez-Bermunen requests that these reports be produced.

  (12) Informants and Cooperating Witnesses. Mr. Perez-Bermunen requests disclosure of the name(s), address(es), and location(s) of all informants or cooperating witnesses used or to be used in this case, and in particular, disclosure of any informant who was a percipient witness in this case or otherwise participated in the crime charged against Mr. Perez-Bermunen. Roviaro v. United States, 353 U.S. 52, 61-62 (1957). The government must disclose any information derived from informants which exculpates or tends to exculpate Mr. Perez-Bermunen. Brady v. Maryland, 373 U.S. 83 (1963). The government must disclose any information indicating bias on the part of any informant or cooperating witness. Id.

  (13) Residual Request. Mr. Perez-Bermunen intends by this discovery motion to invoke his rights to discovery to the fullest extent possible under the Federal Rules of Criminal Procedure ...

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