The opinion of the court was delivered by: Hon. Barry Ted Moskowitz United States District Judge
ORDER GRANTING MOTION FOR NEW TRIAL
Defendant Laura Elena Lopez moves the Court to grant her a new trial. For the reasons discussed below, Defendant's motion is GRANTED.
In an Indictment filed on November 30, 2005, Defendant was charged with one count of Conspiracy to Bring in Illegal Aliens for Financial Gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 371, three counts of Bringing in Illegal Aliens for Financial Gain and Aiding and Abetting in violation of 8 US.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2, one count of Conspiracy to Transport Illegal Aliens in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), (v)(I), and two counts of Transportation of Illegal Aliens and Aiding and Abetting in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), (v)(II).
On January 9, 2006, Defendant filed a motion to suppress statements under Miranda and the due process clause. Defendant argued that statements she made to Agent Nelson Atiles while she was in custody should be suppressed "because they were coerced (following visible physical harm to her co-defendant) and were not demonstrably knowingly, intelligently or voluntarily made." On January 17, 2006, Defendant filed a First Amended Memorandum of Points and Authorities which provided more detail regarding the abuse Defendant allegedly witnessed. According to Defendant's papers, before Agent Atiles advised her of her Miranda rights, Defendant witnessed a plain-clothed border patrol agent hit co-Defendant Mr. Tapia's head against the wall while Mr. Tapia was hancuffed. Defendant allegedly heard the plain-clothed agents and Agent Atiles say that they did not want to touch Mr. Tapia because they thought he was gay. She also allegedly heard agents tell other detainees that they didn't have any rights and heard agents tell someone he was a stupid idiot ("pendejo") for refusing to talk without an attorney present.
On January 30, 2006, Defendant filed a Supplemental Motion and Memorandum of Points and Authorities, which sought the suppression of her confession to Agents Olsen and Wright. Defendant argued that her confession should be suppressed because she was not brought before a magistrate judge within the six-hour safe-harbor period set forth in 18 U.S.C. § 3501. Defendant also argued that suppression was required under the totality of the circumstances. Defendant pointed out that she was not re-Mirandized, even though her second interrogation occurred about nine hours later. Defendant claimed that she was exhausted and hoped that speaking to Agent Olsen would allow her to go home.
On March 27, 2006 and April 4, 2006, Judge John S. Rhoades conducted an evidentiary hearing regarding Defendant's motions to suppress. Agents Scariano, Nila, Acosta, Atiles, Olsen, and Wright testified at the hearing. The agents were asked about, among other things, the circumstances surrounding Defendant's apprehension, the conditions of Defendant's confinement at the Border Patrol Station, the use of force or intimidation against any other detainee, communications between the agents and Defendant, and the events leading up to and including Defendant's confession. At no time did Defendant's attorney or the Government's attorney ask the agents why Defendant was not promptly brought before a magistrate judge on the morning of November 15, 2005. None of the agents provided any explanation for the delay in bringing Defendant before a magistrate judge.
On April 4, 2006, Defendant filed a "Checklist for Assessing Inadmissibility of Statements Made in Response to Interrogation by Agents Olsen and Wright Which Occurred About Nine Hours After Agent Atiles' Interrogation." The checklist focused on factors to be considered in determining whether Miranda warnings have become so "stale" as to dilute their effectiveness.
On August 14, 2006, Judge Rhoades denied Defendant's "motion to suppress on Miranda grounds." Judge Rhoades concluded that Defendant was advised of her Miranda rights and affirmatively waived those rights. (Transcript of 8/14/06 hearing, 6.) Judge Rhoades found that Defendant knowingly, intelligently and voluntarily waived her rights, explaining that Defendant's claim to have witnessed abuse and intimidation of other detainees was not credible. (Id. at 6-7.) Relying on United States v. Rodriguez-Preciado, 399 F.3d 1118 (9th Cir. 2005), Judge Rhoades also held that there was no basis for requiring that Defendant be readvised of her rights before being questioned the second time. Judge Rhoades did not address the issue of the delay between Defendant's arrest and her arraignment and whether such delay had an impact on the voluntariness of Defendant's confession.
On August 18, 2006, after reviewing Henthorn materials regarding Agent Atila, Judge Rhoades issued an order reaffirming his denial of Defendant' s motion to suppress. Judge Rhoades explained: "The court continues to conclude that defendant knowingly, intelligently and voluntarily made incriminating statements to the agent after being read her Miranda rights and that defendant did not waive her rights out of fear of being abused because defendant did not, as she claims, witness the abuse of other detainees."
This case was assigned to Judge Moskowitz for trial. At trial, evidence of Defendant's confession to Agent Olsen was admitted. The Jury found Defendant guilty on all Counts before them (Counts 2, 3, 4, 6, 7, and 8).
On Monday, November 14, 2005, at approximately 9:00 p.m., agents stopped the car Defendant was driving and arrested her. (Transcript of 3/27/06 hearing, 21-23.) She was taken into custody and transported to the Calexico Border Patrol Station, where she was placed in a holding cell. (Trial Transcript, 154.) The holding cell did not contain a bed, only a hard cement bench with no blanket or pillow. (Transcript of 4/4/06 hearing, 13.)
Shortly before 1:00 a.m., Agent Atiles walked Defendant from her cell to an interview room. (Trial Transcript, 154, 188.) Atiles advised Defendant of her Miranda rights in Spanish. (Id. at 155.) Defendant agreed to talk. (Id. at 309.) The interview was conducted by Atiles and Agent Acosta and was videotaped. (Id. at 154.) Defendant denied being involved in any attempt to smuggle aliens and explained that she was just picking Tapia up because he had called her and told her that he was stranded. (Id. at 159, 309.) Near the end of the videotaped interview, ...