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United States v. Hernandez

January 6, 2009


The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge


The ten defendants in this action have been indicted on charges of conspiracy to defraud the Unites States with Respect to Claims, 18 U.S.C. § 286, conspiracy to commit mail fraud and wire fraud, 18 U.S.C. § 1349, conspiracy to commit fraud in connection with identification documents, 18 U.S.C. § 1028(a)(7) and (f), and aggravated identity theft, 18 U.S.C. § 1028A(a)(1) & (2). Before me are a variety of pretrial motions. In sum, the defendants respectively move for the following: (1) suppression of statements made to government agents (Defendants Wendy Jimenez and Cleopatra Rodriguez); (2) severance due to potential Bruton violations at trial (Jimenez, Viviana Castillo, and Rafael Castillo); (3) severance due to conflict between the right to testify and spousal privileges (Janira Bueno); (4) an order for a bill of particulars (Bueno and Rodriguez); (5) early disclosure of "bad act/criminal conduct" evidence pursuant to Rule 404(b) of the Federal Rules of Evidence (Jimenez and Rodriguez); (6) disclosure of evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972) (Rodriguez); (7) suppression of evidence obtained as a result of an constitutionally invalid search warrant (Rafael Castillo); and (8) dismissal of the indictment with respect to Luis Hernandez. Since each of these motions involves different defendants and discrete factual settings, they will be resolved in seriatim. The rulings are applicable to all other defendants where the resolution of the motion impacts other defendants.


(1) Suppression of Statements Made to Government Agents (Jimenez and Rodriguez)

Defendants Wendy Jimenez ("Jimenez") and Cleopatra Rodriguez ("Rodriguez") both move to suppress statements made to government agents. Jimenez seeks to suppress statements she made after being placed under arrest because she is a diabetic and on psychiatric medication, and therefore was unable to give a valid waiver of her Miranda rights. Rodriguez seeks to suppress statements she made on two occasions to government agents based on the claim that the statements were involuntary due to her limited English proficiency.


Jimenez was arrested upon arrival at John F. Kennedy Airport in Queens, New York on July 8, 2009. Jimenez states that she has diabetes and is also on medication for severe depression. Declaration of Wendy Jimenez ("Jimenez Decl.") ¶¶ 4, 11. She claims that upon her arrest she became dizzy, and was permitted to take an insulin shot before getting into the arresting agent's vehicle. Id. ¶ 4. On the drive from the airport, she states that she was questioned by the officers, but she was still dizzy and had a severe headache and did not answer. Id. ¶ 6. After sleeping overnight, she was taken to the hospital "because [her] health deteriorated rapidly." Id. ¶ 8. After returning from the hospital, she was questioned again; during this second round she remained dizzy, still had a headache, and claims to have not eaten that day. Id. ¶¶ 9-10. She claims that she "was not in a position to make a statement at that time or to waive my right to remain silent." Id. The government supplements and contradicts some of Jimenez's claims. En route from the airport, according to the government, she was not questioned but advised of her constitutional rights, whereupon she indicated a headache and sought to talk the next day. Gov't's Br. at Ex. A (Report by FBI Special Agent, name redacted). She was provided dinner that night, but declined to eat it, and was permitted to take her insulin shot and blood sugar reading. Id. She was transported to the hospital the next day, received a "fit for confinement" letter after being examined by a physician, and discharged. Gov't's Br. at Ex. B (New York Downtown Hospital Discharge Instructions). After being transported to the FBI headquarters in Manhattan, she was again advised of her rights and then signed an "Advice of Rights form," which essentially stated that she would waive her right to an attorney and to remain silent and instead answer the agents' questions. Gov't's Br. at Ex. C (Advice of Rights Form).. She thereafter gave an "extensive post-arrest statement." Gov't's Br. at 4, Ex. D (Summary of post-arrest statements).

A District Court may hold an evidentiary hearing to determine whether a defendant's statement was voluntarily made. See Jackson v. Denno, 378 U.S. 368, 392 (1964). A material factual dispute regarding whether a statement was voluntary triggers the need for a hearing. "It is incumbent upon the defendant to set forth the specific factual basis to support [her] claim that [her] Miranda waiver.[was] involuntary so as to warrant an evidentiary hearing." United State v. Amery, No. 02 Cr 143, 2002 WL 31027514, at *1 (S.D.N.Y. Sept. 10, 2002). A "bald assertion that a statement was involuntary" is insufficient; specification of the facts for such a characterization is needed. United States v. Mathurin, 148 F.3d 68, 69 (2d Cir. 1998). "[A]n evidentiary hearing on a motion to suppress ordinarily is required if the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable to the court to conclude that contested issues of fact.are in question." United States v. Jass, 331 Fed.Appx. 850, 854 (2d Cir. 2009) (quoting Untied States v. Watson, 404 F.3d 163, 167 (2d Cir. 2005). Here, Jimenez raises sufficiently detailed and specific factual claims to raise "contested issues of fact" regarding the statements she made after the waiver of her Miranda rights. Specifically, as described above, Jimenez raises questions as to her health and mental condition at the time she of her statements, placing both the voluntariness and "knowing" nature of her waiver into doubt. Her affidavit is not a general assertion that her statement was involuntary, but rather points to specific facts related to her medical and mental condition at the time she made the statements. As a result, I find that an evidentiary hearing is necessary to resolve this issue, and will make a determination on whether to suppress Jimenez's statements after that hearing. The hearing shall be held on Monday, January 11, 2010 at 10:30 A.M. in Courtroom 23B.


Rodriguez was not formally arrested at the time she made either of her two statements. She was first question by government agents at her home on or about April 25, 2008. Rodriguez concedes that she was informed that she was not under arrest. Affidavit of Cleopatra Rodriguez ("Rodriguez Aff.") ¶ 3a. After informing the agents that she did not speak English, she was told "that a Spanish speaking agent could be made available to translate for me during questioning," and was asked if she would accompany the agents to the Offices of the New York Department of Taxation and Finance. Id. Rodriguez states that after arriving at the office, she was questioned "over an extended period of time in the presence of numerous agents" and that she was at no time informed of her Miranda rights. Id. ¶ 3b. On or about July 25, 2008, Rodriguez was again questioned. She was brought to the FBI office at Federal Plaza, and "interrogated by a number of agents for a second time," and was "informed that the agents believed I had been involved in illegal conduct." Id. ¶ 3c. She again claims she was not informed of her Miranda rights. The government does not dispute any of Rodriguez' factual claims about her statements, and relates the same essential story. See Gov't's Br. at 1-2. Unlike Jimenez, Rodriguez does not raise a material factual dispute that needs to be resolved pursuant to an evidentiary hearing. See Mathurin, 148 F.3d at 69. To the contrary, since there is no disagreement between the defendant or the government as to the essential facts surrounding her statements, the voluntariness of these statements can be resolved on the papers.

Rodriguez argues that her statements were made involuntarily and without first being instructed on her right to remain silent and to request an attorney, pursuant to Miranda v. Arizona, 384 U.S. 386 (1966). A defendant is entitled to Miranda warnings only if she is questioned while "in custody." Tankleff v. Senkowski, 135 F.3d 235, 242 (2d Cir. 1998). "A person is in custody for purposes of Miranda if a reasonable person in the suspect's shoes would not have felt free to leave under the circumstances." United States v. Badmus, 325 F.3d 133, 138 (2d Cir. 2003) (quoting United States v. Ali, 86 F.3d 275, 276 (2d Cir.1996)). The undisputed facts asserted by Rodriguez demonstrate that she was not in custody at the time of either period of questioning. She was told on both occasions she was not under arrest, and was asked, as opposed to told, to come to the government offices. See United States v. Mussaleen, 35 F.3d 692, 697 (2d Cir. 1994) (defendant who was visited at home and asked to accompany agents to police station was not in custody). As in Mussaleen, Rodriguez "fails to specify conduct by the detectives amounting to the kind of coercive pressure that would cause a reasonable person to feel that he had no choice but to submit." Id. The fact that she was interviewed at an enforcement agency's office and that the agents told her they believed she was involved in illegal conduct are not inherently indicative of custody without some indication that she believed she was unable to leave. Oregon v. Mathiason, 429 U.S. 492, 495 (1977) ("Nor is the [Miranda] requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.").

If a defendant is not in custody when her statements are made, the only question that remains is whether the statements were made "voluntarily" and not due to coercion. See United States v. Orlandez-Gamboa, 320 F.3d 328, 332 (2d Cir. 2003). "No single criterion controls whether an accused's confession is voluntary: whether a confession was obtained by coercion is determined only after careful evaluation of the totality of the surrounding circumstances." Id. (internal citations and quotations omitted). In determining the voluntariness of a defendant's statement, a court should consider "(1) the characteristics of the accused, (2) the conditions of interrogation, and (3) the conduct of law enforcement officials." Green v. Scully, 850 F.2d 894, 901 (2d Cir.1988). Rodriguez' contention that her statements were involuntarily made is unpersuasive. The sole facts that she marshals to support her claim of coercion is that she had limited English-speaking skills, was asked to come to the agents' offices, and was interviewed before "numerous" agents. But upon learning that she was primarily a Spanish-speaker, she was put in touch with a Spanish-speaking agent who explained that she was not under arrest. Also, as noted above, she was asked, not required, to come to the offices. Rodriguez raises no further facts to indicate that she was coerced to give statements against her will. As such, I find that her statements were given voluntarily and the motion to suppress is denied.

(2) Severance Due to Potential Violation of Bruton v. United States (Jimenez, V. Castillo, and R. Castillo)

Three defendants, Jimenez, Viviana Castillo ("V. Castillo"), and Rafael Castillo ("R. Castillo") each seek severance and separate trials on the grounds that statements by certain co-defendants may implicate them in violation of Bruton v. United States, 391 U.S. 123 (1968). Pursuant to Bruton, the admission of a co-defendant's confession at joint trial that implicates another defendant in that trial is a violation of the implicated defendant's right to cross-examination under the Confrontation Clause of the Sixth Amendment. Jimenez claims that three co-defendants made statements to law enforcement agents that implicate her in the charged indictment; V. Castillo similarly claims that two co-defendants made statements to law enforcement agents that implicate her; and R. Castillo joins in the request for the same relief and offers no different rationale for severance. The government argues that severance is unnecessary, because it will sufficiently redact the statements so as to comply with Bruton. At a hearing before this court on the various motions, counsel for Jimenez indicated that redaction was an acceptable solution for his client with ...

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