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United States v. Ontiveros

June 16, 2008

UNITED STATES OF AMERICA
v.
CARLOS PEÑA ONTIVEROS AND SILVESTRE RICO BELTRAN, DEFENDANTS.



The opinion of the court was delivered by: Richard J. Sullivan, District Judge

MEMORANDUM AND ORDER

Before the Court is the government's motion for partial reconsideration of the Court's April 18, 2008 Order, which granted in part defendant Carlos Peña Ontiveros's motion to suppress certain statements pursuant to 18 U.S.C. § 3501(c) and Rule 5(a) of the Federal Rules of Criminal Procedure. For the reasons that follow, the government's motion is denied in its entirety.

I. BACKGROUND

On April 8, 2008, this Court issued a memorandum and order - which was subsequently amended and superseded by the Court's April 18, 2008 memorandum and order - granting in part and denying in part defendants' motions to suppress evidence and statements. With respect to defendant Silvestre Rico Beltran, the Court found that the government failed to demonstrate that he waived his Miranda rights at the residence at which he was arrested, and thus suppressed statements he made at that time. See United States v. Peña Ontiveros, --- F. Supp. 2d ---, 2008 WL 1805605, at *10-11 (S.D.N.Y. Apr. 18, 2008).The Court also suppressed statements made by Rico Beltran at the Office of the Bureau of Immigration and Customs Enforcement ("ICE"), where defendants were taken after their arrest, on the grounds that the government failed to demonstrate that Rico Beltran made a valid waiver of his right to a speedy presentment, that the period preceding his presentment was well beyond any period of "reasonable delay," and, that, in any event, Rico Beltran was not properly informed of his rights in Spanish. See id. at *11-18. With respect to defendant Peña Ontiveros, the Court similarly suppressed statements he made at the ICE Office due to the government's failure to demonstrate that Peña Ontiveros made a valid waiver of his right to a speedy presentment, and because the period preceding his presentment was well beyond any period of "reasonable delay." See id.

On April 17, 2008, the government moved for reconsideration of the April 8, 2008 memorandum and order on three separate grounds. First, the government requested that the Court clarify certain language in the order relating to 18 U.S.C. § 3501(c). (See Gov't's Letter-Motion to the Court, dated April 17, 2008 ("Gov't Mem.") at 3-7.) That request was granted, and the Court issued an amended memorandum and order on April 18, 2008. See Peña Ontiveros, 2008 WL 1805605, at *1 n.1. The government does not challenge the amended order and agrees that the amended order satisfies its first request for reconsideration. (See Transcript of April 18, 2008 Conference at 3-7.)

Second, the government requested that the Court reopen the December 3, 2007 suppression hearing to permit the government to offer the testimony of ICE Special Agent Michael Alfonso.*fn1 According to the government and Agent Alfonso's affidavit, Agent Alfonso will provide additional testimony establishing that Peña Ontiveros did in fact make a valid oral waiver of his right to speedy presentment. (See Gov't Mem. at 7; Alfonso Aff. ¶¶ 2-4.)

Finally, the government asked the Court to reconsider its holding based on additional case law that purports to equate a waiver of Miranda rights with a waiver of the right to a speedy presentment, thus obviating the need for a separate waiver of the right to speedy presentment.*fn2 (See id. at 7-8.)

Defendant Peña Ontiveros opposes the motion in its entirety, asserting that the Court's April 18, 2008 ruling should stand. (See Peña Ontiveros Letter to the Court, dated May 2, 2008 at 1-2.)

II. DISCUSSION

A. The Government's Motion to Reopen the Suppression Hearing

The government first moves to reopen the suppression hearing in order to permit the government to present the testimony of one additional witness, Agent Alfonso. Specifically, the government asserts that Agent Alfonso will testify that defendant Peña Ontiveros did, in fact, orally waive his right to speedy presentment before Agent Alfonso and ICE Special Agent Stephen Lee on the afternoon of July 23, 2007. (See Gov't Mem. at 7; Alfonso Aff. ¶¶ 2-4.)

The decision whether to reopen a suppression hearing lies soundly within the discretion of the district court. United States v. Bayless, 201 F.3d 116, 131-32 (2d Cir. 2000); United States v. Perez, No. 01 Cr. 848 (SWK), 2002 WL 1835601, at *1 (S.D.N.Y. Aug. 8, 2002) (citing United States v. Nezaj, 668 F. Supp. 330, 332 (S.D.N.Y. 1987)). "[I]t has long been the law in this Circuit that, in order to reopen a suppression hearing on the basis of new evidence, the moving party, whether it is the government or the defendant, must show that the evidence 'was unknown to the party, and could not through due diligence reasonably have been discovered by the party, at the time of the original hearing.'" United States v. Leaver, 358 F. Supp. 2d 273, 279 & n.30 (S.D.N.Y. 2005) (quoting Nezaj, 668 F. Supp. at 334); Perez, 2002 WL 1835601, at *1 ("Among the factors the court should consider is whether the moving party has proffered newly discovered evidence that was unknown to the party, and could not through due diligence reasonably [have] been discovered by that party, at the time of the original hearing.") (citations and internal quotation marks omitted). "If a new witness was available at the time of the original hearing, but chose not to testify or was not called to do so by the [party]'s attorney, it is not a basis for reopening the hearing." Perez,2002 WL 1835601, at *1 (citations omitted); see also Leaver, 358 F. Supp. 2d at 279 n.30. However, the Second Circuit has advised that "'vague notions of unfairness, that the government should not have 'two bites' off the same apple, ought not control.'" Bayless, 201 F.3d at 132 (quoting United States v. Tucker, 380 F.2d 206, 214 (2d Cir. 1967)).

Citing the Second Circuit's decisions in Bayless, 201 F.3d at 131-32, and Tucker, 380 F.2d at 214, the government argues that the Court should reopen the suppression hearing to permit further testimony because "the government ought to be permitted considerable latitude" in making such a request. (Gov't Mem. at 4.) In Bayless, the Second Circuit held that a district court has broad discretion to permit the Government to introduce new evidence on a motion for reconsideration "in the interests of justice." 201 F.3d at 131. The court found that the district court had "acted correctly" in granting the government's motion to reopen the suppression hearing because the government "adequately justified its decision not to introduce the testimony of [the proposed witness] at the original suppression hearing" where the testimony of the proposed witness "echoed that of [another witness]," and "the government had no reason to believe that his testimony would be anything but cumulative" based on representations made by the trial judge that the facts were not disputed. Id. at 131-32. However, the court expressly declined to decide whether the government was required to present a "good reason" for its failure to present the new evidence prior to the district court's ruling, given that it found the government's justification in that case to be adequate. Id.; accord Leaver, 358 F. Supp. 2d at 277.

Here, the government contends that "reopening the hearing would be in the interests of justice because the Court found that the testimony of Special Agent Lee was ambiguous with respect to the defendants' oral waivers of speedy presentment and because the lack of valid waivers appeared to be a significant factor in the Court's determination that the delay in presentment was not reasonable." (Gov't Mem. at 7.) The government does not specifically argue that the failure to call Agent Alfonso was due to the government's belief that ...


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