United States District Court, D. Nevada
RECOMMENDATIONS MOTION TO SUPPRESS STATEMENTS - #73 MOTION TO SUPPRESS SEARCH -
GEORGE FOLEY, Jr., Magistrate Judge.
This matter is before the Court on Defendant Alexander Del Valle Garcia's Motion to Suppress Statements (#73) and Motion to Suppress Search of the Vehicle (#74), filed on February 14, 2014. The Government filed its Consolidated Response to Defendant's Motions (#82) on February 28, 2014. Defendant filed his Reply to the Government's Response (#90) on March 10, 2014. The Court conducted an evidentiary hearing in this matter on March 20, 2014. The Court has also considered Defendant Del Valle Garcia Supplemental Brief (#116), filed on March 24, 2014 and the Government's Response (#119), filed on March 25, 2014.
Count One of the Second Superseding Indictment (#77) charges Defendants Julio De Armas Diaz, Alex Torres Simon and Alexander Del Valle Garcia with Conspiracy to Interfere with Commerce by Robbery in violation of 18 U.S.C. § 1951. The conspiracy allegedly began on or about April 4, 2013 and continued to on or about April 8, 2013. For background purposes only, the following factual allegations are taken from the criminal complaint filed against Defendant Del Valle Garcia on April 11, 2013 and the parties' respective briefs on the motions to suppress:
On April 4, 2013, a confidential informant reported to FBI Special Agent Shay Christensen that Defendants Diaz and Simon, together with other conspirators, were planning to rob a pharmaceutical delivery van. The conspirators allegedly planned to use a gun to confront the delivery van driver at his house, tie him up and cover his mouth with duct tape, and then drive the van to another location where they would remove the pharmaceutical products. The robbers intended to abandon the driver and the van after the robbery was complete. Pursuant to FBI instructions, the informant agreed to feign participation in the robbery plan. Defendant Simon thereafter told the informant that Defendant Del Valle Garcia would meet the informant in a parking lot near Eastern Avenue and Bruce Street on the morning of the planned robbery and the informant would then ride with Mr. Del Valle Garcia to meet up with Diaz and Simon prior to committing the robbery. On April 8, 2013, the informant allegedly met with Mr. Del Valle Garcia as arranged, and rode with him to the parking lot of the Mabel Hoggard Elementary School which was located approximately 500 yards from the home of the delivery van driver. Mr. Del Valle Garcia parked the Nissan Altima automobile he was driving next to the automobile occupied by Diaz and Simon. At that point, FBI agents swooped in and took the suspects into custody.
Mr. Del Valle Garcia allegedly gave his consent to the FBI agents to search the Nissan Altima. The agents discovered gloves and duct tape in the vehicle which were allegedly to be used in the commission of the robbery. Mr. Del Valle Garcia was then transported to the FBI Headquarters. He was taken to an interview room where he was allegedly informed of his Miranda rights and agreed to speak with the agents. During the ensuing interview, Mr. Del Valle Garcia denied any knowledge of the robbery conspiracy. He allegedly stated that he was driving a friend to apply for a job that morning, and that the gloves and duct tape found in the vehicle belonged to the registered owner of the vehicle. Based on these allegedly false statements, Defendant Del Valle Garcia is also charged with making a false, fictitious and material statement to the FBI in violation of 18 U.S.C. § 1001. See Second Superseding Indictment (#77), Count Four.
Defendant contends that the FBI agent did not adequately communicate with him in his native language, Spanish, and he did not understand the written consent to search form which was printed in English. Defendant also argues that the circumstances surrounding the obtaining of the consent do not support a finding that it was voluntary. Defendant argues that his subsequent statements to the FBI should be suppressed because they were obtained as a result of the unlawful search of the vehicle and the giving of Miranda warning did not cure the taint resulting from the unlawful search.
1. FBI Special Agent Shay Christensen.
FBI Special Agent Shay Christensen was called as a witness at the evidentiary hearing. Agent Christensen testified that he has been an FBI agent a little over five years. He stated that the FBI generally requires three years of work experience to be eligible for employment as an FBI agent. He received a waiver of this requirement because of his Spanish speaking ability. He testified that he originally learned Spanish while serving a two year LDS church mission in southeastern Mexico in 2001-2003. He studied Spanish during a six week training course before beginning his mission. While on the mission, Agent Christensen spoke Spanish every day, all day. In addition, he studied Spanish each morning for 30 minutes. He testified that by the end of his mission, he felt fluent in the Spanish language.
After completing his mission, Agent Christensen attended California State Polytechnic University in Pomona, California where he majored in Spanish. He graduated with honors in 2007. After graduation, Agent Christensen was hired as a contract linguist for the Drug Enforcement Administration (DEA) in July 2007. He worked as a contract linguist 30-40 hours a week for a period of one or one and one-half years. In this job, he listened to Title III (wiretap) intercepted conversations between Spanish speakers. He interpreted, translated and transcribed those conversations into English. His work was reviewed by others for quality control. During his employment with the DEA, Agent Christensen was accepted into the Ph.D. program in Spanish at the University of California Irvine. He completed two quarters (two thirds of a school year) in the program. While participating in the Ph.D. program, he spoke exclusively in Spanish. He dropped out of the program upon being hired as an FBI agent.
As a precondition to employment, Agent Christensen passed an FBI language test demonstrating his proficiency in Spanish. The test includes written, listening and speaking parts. The speaking part is the most important part of the test and the grade on that part determines whether the applicant will be accepted as qualified in the language. Agent Christensen entered the FBI Academy in October 2008 and completed it in March 2009. He was assigned to the San Juan, Puerto Rico FBI field office in May 2009 where he worked until April of 2012. During his assignment in Puerto Rico, he spoke Spanish on a daily basis. Agent Christensen testified that he is currently assigned to an organized crime squad. He is often called on for assistance by other FBI agents to interview Spanish speaking individuals. During the course of his work as an FBI agent, Agent Christensen has advised suspects of their Miranda rights in Spanish and has also requested consents to search from individuals in the Spanish language.
On cross-examination, Agent Christensen acknowledged that he has not specifically studied the Cuban dialect of the Spanish language. He testified that the first translation that he worked on as a linguist for the DEA involved a Cuban subject. He indicated that he may have done other translations involving Cuban subjects. Agent Christensen testified that he scored a "3" on the speaking part of the FBI language test that he took prior to being hired. In June or July 2012, he again took the test and scored a "2" on the speaking portion. The test is graded on a scale of 1-5.
Agent Christensen testified that he first encountered Mr. Del Valle Garcia in the parking lot of the Mabel Hoggard Elementary School on the morning of April 8, 2013. There were four or five FBI vans or cars, with two agents in each vehicle, in the area of the planned arrest. Immediately before FBI agents closed in, the suspects' vehicles were parked side-by-side in the elementary school parking lot, facing toward the street. See Government's Hearing Exhibit 59A, photograph of vehicles. Defendant Del Valle Garcia was in the driver's seat of the Nissan Altima and the informant was in the passenger's seat. Defendants Diaz and Simon were in the other vehicle. The agents pulled in and stopped their vehicles behind the suspects' automobiles, preventing them from backing out of the parking spaces. The FBI agents exited their vehicles with firearms drawn, and Special Agent Nunez, in Spanish, ordered the suspects to exit the vehicles one-by-one, and turn around and walk to the agents who were waiting to handcuff them. The suspects were placed in handcuffs, physically searched and then escorted by agents to separate locations in the parking lot where they were ordered to sit down. It is not clear whether the informant was also treated as a suspect and handcuffed. Once the suspects were secured, the agents holding long guns or shotguns placed those firearms back into their vehicles, and the other ...