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United States of America v. Reynaldo Velez

April 1, 2011

UNITED STATES OF AMERICA,
v.
REYNALDO VELEZ, DEFENDANT.



The opinion of the court was delivered by: Charles J. Siragusa United States District Court Judge

DECISION AND ORDER

INTRODUCTION

The defendant, Reynaldo Velez ("Velez"), stands accused of six counts in a multi-defendant indictment relating to drug trafficking and money laundering. The defendant has moved to suppress statements he purportedly made to the police on December 14, 2007, and on October 29, 2008.

In regard to the defendant's application, a hearing was held on January 20 and February 9, 2011. Officers Edmund Bernabei ("Bernabei"), Elvin Ramos ("Ramos"), both of the Rochester Police Department, Special Agent John Hayes ("Hayes") of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, and Besayda Soto, a Spanish interpreter, ("Soto") all testified at the hearing.

The Court, having considered the testimony presented and exhibits received into evidence at the hearing, and having made evaluations regarding credibility, makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

Bernabei is a police officer with the City of Rochester Police Department, and he has been so employed for over twenty-one years. For the past ten years, he has been assigned to the Special Investigations Section ("SIS"). On December 14, 2007, at about 6:55 p.m., he had occasion to assist in the execution of a search warrant at 259 Arbutus Street in Rochester, New York. Velez was inside 259 Arbutus Street when the search warrant was executed, and he was taken into custody and transported to the third floor of the Public Safety Building ("PSB"). After arriving at the PSB, Bernabei was alerted to the fact that the defendant along with other individuals taken into custody at 259 Arbutus Street spoke Spanish, and that a Spanish interpreter would therefore be needed. As a result, Ramos, a Spanish speaking officer with the Rochester Police Department, arrived at the PSB.

Ramos has been employed by the Rochester Police Department as a police officer for about six years. Prior to that, he worked for the New York City Police Department as a police officer for approximately four years. Ramos can speak, read, and write both Spanish and English. In that regard, Ramos, was born in Puerto Rico of Spanish-speaking parents. He lived in Puerto Rico for about five years, and attended school there where the classes were in Spanish. Subsequently, his parents moved to New York City, and he grew up speaking both Spanish and English. Although fluent in English, Ramos has continued to speak Spanish on a daily basis with his wife and sister-in-law at home and with co-workers at the police department. Additionally, he acts as a Spanish interpreter with the Rochester Police Department and also assists other police agencies in that regard when requested. Moreover, as a New York City police officer, he acted as a Spanish interpreter on a daily basis.

When Ramos arrived at the PSB, Bernabei spoke to him briefly. He explained to Ramos the circumstances of the execution of the search warrant, including what was found, and told Ramos that he needed him to assist in the interviews of two individuals who had been taken into custody. Bernabei and Ramos then entered interview room # 361 in which the defendant was located at approximately 10:55 p.m. At that point, the defendant had been in custody for about four hours.

The defendant, who was handcuffed, was seated to the right of the table inside the room. Upon entering, Bernabei and Ramos introduced themselves, and Ramos inquired of the defendant in Spanish whether he would rather be asked questions in English or Spanish. The defendant replied that he felt more comfortable with Spanish. Next, Ramos asked the defendant in Spanish if he needed anything. The defendant responded in Spanish, which Ramos translated for the benefit of Bernabei, that he needed to use the bathroom. His handcuffs were removed, and he was allowed to use a bathroom just outside interview room # 361, and then was returned to the room.

Upon returning to interview room # 361, the defendant's handcuffs remained off. He took a seat at the table, and Bernabei and Ramos sat across from him. Ramos explained to the defendant that Bernabei wanted to ask him some questions regarding the search earlier that day, and that if the defendant was comfortable in doing so, they needed to follow procedure and he needed to be advised of his constitutional rights. The defendant agreed to answer questions. Ramos then utilized a two-sided notification card in English, which Bernabei had given him, received into evidence as Exhibit # 1, to advise the defendant of his constitutional rights. This occurred at 11:04 p.m. Prior to advising the defendant of his rights, Ramos completed one side of the card, which called for information such as the time and date. Ramos asked the defendant in Spanish for his educational level and recorded the defendant's answer of 9th grade on that same side of the card. Ramos then turned the card over and translated verbatim into Spanish the five warnings. After translating each warning into Spanish, Ramos asked the defendant, again in Spanish, if he understood that specific warning, and as to each, the defendant responded in Spanish, "yes." After translating all five warnings as they appeared on Exhibit # 1, Ramos asked the defendant in Spanish the two waiver questions that appear at the bottom of the card. He first asked the defendant, whether he understood the rights that he had just read to him, to which the defendant responded in Spanish, "yes." He then asked the defendant in Spanish whether he was willing to give up those rights and speak with the police, to which the defendant also responded in Spanish, "yes."

Bernabei and Ramos then proceeded to interview the defendant. The interview was conducted by question and answer. Bernabei asked questions in English, Ramos translated them into Spanish, the defendant responded in Spanish, and Ramos translated the answers into English. The interview lasted for about forty-five minutes. At that point, Bernabei left the interview room. Ramos then asked the defendant in Spanish if he was willing to give a signed statement. The defendant replied in Spanish, "yes," and Ramos then wrote out a statement in Spanish, which he went over line by line with the defendant, reading each sentence aloud to the defendant in Spanish to make sure it was exactly what the defendant wanted to say. Once the written statement, which was received into evidence as Exhibit # 2, was completed, Ramos asked the defendant in Spanish to sign and initial it. The defendant did, and Ramos also signed, witnessing the defendant's signature. After the defendant signed the statement, Ramos asked him if there was anything he wanted to add. In response, the defendant indicated to Ramos that he did want to add something. Ramos made the addition at the defendant's request on Exhibit # 2 underneath where the defendant had signed and where Ramos had witnessed his signature. Ramos then read the addition back to the defendant in Spanish to make sure it was correct. After doing so, Ramos asked the defendant in Spanish to sign and initial the addition, which the defendant did and Ramos again witnessed his signature. It took approximately another forty-five minutes to complete the written statement

At no time, during the course of the interview or the taking of the written statement did the defendant ever indicate that he did not want to speak with Bernabei or Ramos. Neither, during that time, did the defendant ever indicate that he wanted a lawyer. At no time did Bernabei or Ramos ever threaten the defendant, use any force against him, or make him any promises to get him to speak with them. The defendant did not appear to be under the influence of alcohol or drugs. Moreover, the defendant never complained of any illness or medical condition, and throughout the interview process, including the taking of the written statement, he was calm and cooperative, and just wanted the opportunity to tell his side of the story. Furthermore, the defendant responded coherently to the questions Ramos asked him in Spanish, and never indicated that he had any difficulty understanding Ramos. Other than his request to use the bathroom, which was granted, he did not have any other requests.

Hayes is a special agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"), and has been so employed for approximately eleven years. He currently works with ATF as a criminal investigator. On October 29, 2008, Hayes, pursuant to his duties with ATF, participated in the execution of arrest and search warrants in a multi-suspect case. One of the individuals arrested on that date was the defendant, who was taken into custody at approximately 8:22 a.m. Although Hayes ...


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