The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge
STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTIONS
STATEMENT OF FACTS*fn1
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.
MOTION TO DISMISS THE INDICTMENT DUE TO MISINSTRUCTION OF THE
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
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.
THIS COURT SHOULD SUPPRESS ANY STATEMENTS MADE BY MR.
A. The Government Must Demonstrate Compliance With
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
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
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,
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
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.
MOTION TO COMPEL DISCOVERY
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
(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
(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
(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 ...