United States District Court, E.D. Texas, Texarkana Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
CAROLINE M. CRAVEN UNITED STATES MAGISTRATE JUDGE
above-entitled and numbered cause of action was referred to
the undersigned United States Magistrate Judge for pre-trial
purposes in accordance with 28 U.S.C. Â§ 636. The following
pending motion is before the Court:
Motion to Suppress Statement (Docket Entry # 49)
Court, having reviewed the relevant briefing and hearing
arguments of counsel March 12, 2019, recommends the motion be
DEFENDANT'S MOTION TO SUPPRESS
Moya (“Defendant”) has been charged in a
two-count indictment, alleging that he conspired to traffic
drugs and that his offense involved a firearm, in violation
of 21 U.S.C. § 846 and 18 U.S.C. § 924(c)(1)(A).
Docket Entry # 53 at 1-2. On February 20, 2019, Defendant
filed his current motion to suppress. According to Defendant,
on June 7, 2018, Defendant was interrogated by agents of the
Drug Enforcement Agency (“DEA”), the Texas
Department of Public Safety (“DPS”) and other
federal and state law enforcement officers in violation of
his constitutional rights. Docket Entry # 49 at 1. Defendant
argues he did not knowingly, intelligently, or voluntarily
waive his Fifth Amendment right to remain silent, nor was he
properly or sufficiently advised of his rights. Id.
According to Defendant, any statement taken during the
interrogation was the result of coercion, physical
intimidation, and/or unauthorized promises of leniency by
members of law enforcement and are, therefore, involuntary
and inadmissible for any purpose. Id. at 2.
THE GOVERNMENT'S RESPONSE
response, the Government asserts the following background
facts. On June 6, 2018, law enforcement near Corpus Christi,
Texas, stopped a vehicle containing nine bundles of drugs
headed for New Boston, Texas. Docket Entry # 64, Exhibit
1(Criminal Complaint and Affidavit of Maximo Mella in Support
of Application for Arrest Warrant (“Mella Aff.”))
at 4, ¶¶ 9-11. The three individuals transporting
the drugs (one of whom was Jose Moya) said they were taking
the drugs to 503 North Bowie Street in New Boston, Texas in
exchange for United States currency. Id., ¶ 10.
Moya further told agents the nine bundles of suspected heroin
were going to be delivered to his brother, Defendant Armando
Moya, at Defendant's residence at 503 North Bowie Street
in New Boston, Texas. Id. at 5, ¶ 12. Jose Moya
then described how he had delivered drugs to Defendant on
prior occasions and picked up bulk United States currency
from Defendant, which ultimately was transported to Mexico.
7, 2018, at approximately 12:30 a.m., DEA Tyler Resident
Office (“TRO”) agents obtained a search warrant
for 503 North Bowie Street, New Boston, Texas. Id.,
¶ 13. Texas DPS agents and DEA TRO agents executed the
search warrant at Defendant's home at approximately 1:00
a.m. on June 7, 2018. Id., ¶ 14. Defendant and
his family were home at that time. Id., ¶ 15.
At approximately 1:11 a.m., DEA Special Agent Maximo Mella
(“Agent Mella”) read Defendant his
Miranda rights. Id., ¶ 16; see
also Docket Entry # 64, Exhibit 2 (“Report of
Investigation”) at 1. At that time, Defendant confirmed
he understood his rights and agreed to speak with
investigators. Id. DEA Special Agent Darby Hodges
and DEA Task Force Officer Greggory McCasland observed
Defendant receive, acknowledge, and waive his
Miranda rights. Id.
the conversation with law enforcement, Defendant described in
detail the drug trafficking activity in which he had been
engaged. Mella Aff., ¶¶ 17-18; Report of
Investigation at 1-5. Specifically, Defendant described how
his brother, Jose Moya, had invited him to begin working as a
drug and bulk cash courier for a drug trafficking
organization in Mexico that was led by a man named “Don
Roberto.” Report of Investigation at 2. Defendant said
he accepted the offer because he wanted to make some money.
Id. He said he had received seventy bundles from
Jose Moya over the course of seven separate trips.
Id. He said he “knew . . . something
bad” was in the bundles he was transporting.
to each delivery, Defendant explained, he would communicate
with Don Roberto via WhatsApp about when to expect drug
shipments and where to deliver them. Id. Defendant
admitted he was paid $700.00 to $1, 000.00 per bundle for
delivering them to Tennessee, Ohio, or New York. Id.
Don Robert also provided Defendant with $2, 000.00 for each
trip to cover his travel expenses (fuel, rental vehicle, and
other expenses). Id. After Defendant arrived at the
delivery city, Don Roberto would communicate further with him
via WhatsApp about a specific meet location to deliver the
described how Don Roberto used coded communication to direct
him, explaining the code name for New York was
“torres” or towers; the code name for
Columbus, Ohio, was “colon;” the bundles of drugs
were called “comida” or food; and the
phrase “barrer la basura” or sweep the
trash meant Defendant was supposed to pick up bulk
currency. Id. at 4. Defendant described some of his
trips in detail. For example, he revealed he had traveled to
Nashville, Tennessee, where he exchanged the drugs for bulk
currency and received $9, 000.00 from the person to whom he
delivered the drugs. Id. at 2-3. He also described
in detail a trip to Columbus, Ohio in April 2018, where he
met another person to exchange drugs for bulk cash.
Id. at 3. Defendant also described meeting a man
known as “El Chino” in New York. Id. He
described El Chino's physical characteristics to the
agents, including that he was clean shaven, bald, had a dark
skin complexion, was between approximately five feet nine
inches and five feet eleven inches tall, and had a heavy
built body type. Id. at 4. He also described El
Chino's vehicle as a newer model, small silver Toyota
this conversation, Defendant provided law enforcement with
written consent on a DEA form to search his phone.
Id. at 4. On his phone, Defendant pointed to
WhatsApp conversations with Don Roberto (saved as “DON
ROBERTO” in the contacts list). Id. Agent
Mella observed Don Roberto's phone number and his
communications with Defendant (via both text and voice
messages). Id. Those conversations directed
Defendant to deliver the drugs to “las torres” on
June 8 or 9, 2018. Id.
confirmed he was expecting Jose Moya to arrive the night of
June 6, 2018 to drop off ten bundles, and he told the agents
that Don Roberto had instructed him to give the bulk currency
hidden in his home to Jose Moya for transport back to Mexico.
Id. Defendant told agents where in his house he had
hidden the bulk currency. Id. at 3. Law enforcement
searched the location described by Defendant and found $198,
184.00. Mella Aff., ¶ 19. Law enforcement also found a
firearm inside Defendant's home, which he said was for
his protection. Id., ¶ 20.
Defendant was arrested, he was incarcerated at the Bowie
County jail facility. Docket Entry # 64, Exhibit 3 at 1.
During his incarceration, Defendant spoke with his wife on
several recorded phone calls. Id. at 1-3. During one
of those calls, Defendant and his wife discussed his
admissions to the DEA the night he was arrested. Id.
at 2. During that discussion, Defendant did not claim his
statements were coerced. See Id. Instead, he told
his wife he had admitted to taking trip because he believed
it would help reduce his sentence. Id.
MARCH 12, 2019 HEARING
testified at the suppression hearing as follows. During the
middle of the night on June 7, 2018, Defendant, his wife, and
three children were asleep when law enforcement officers with
the DEA, including Agent Max Mella, broke through the door of
his house. Report's Transcript of Hearing on
Defendant's Motion to Suppress (Docket Entry # 76)
(“Tr.”) at 3:15-4:14. The officers went into his
kids' room, pulled his children (ages 8, 14 and 22) out
of bed at gunpoint, and lined them up, along with
Defendant's wife, in the living room like they were
criminals. Id. at 5:1-16; 12:10-13. According to
Defendant, the agents “were tearing everything inside
the house.” Id. at 5:18-24.
agents found $200, 000.00 in Defendant's closet and a
pistol in a safe. Id. at 21:10-25. After the agents
searched the house, they loaded Defendant into an SUV.
According to Defendant, the agents dragged him outside and
took him to Agent Mella's black SUV. Id. at
6:4-24. They did not let Defendant “put anything
on.” He only had on shorts, “no shoes, no
anything.” Id. at 6:22-23.
Mella and Defendant sat in the front, and another agent was
in the back. Id. at 7:2-19; 22:14- Agent Mella
had a “yellow notebook” or “legal
pad” with “everything written on it, ” and
he started asking Defendant questions/reading Defendant
“whatever he had on there.” Id. at
7:15-18; 19.24-10:5; 11:7-15. Before Agent Mella asked
Defendant questions, no one read Defendant his
Miranda rights. Id. at 7:23-8:24. The
agents did not ask Defendant to sign any pieces of paper
before he answered any questions. Id. at 8:25-9:2.
Defendant felt like he was in custody and was not free to
leave. Id. at 9:3-22.
testified the information written on the pad was not
information Defendant told Agent Mella but information Agent
Mella had before he started meeting with Defendant.
Id. at 11:23-12:3. According to Defendant, every
time Agent Mella asked Defendant a question, the other agent
in the back would state the agents might be able to get
leniency for Defendant if Defendant agreed to talk with them
(they would talk to the judge and might be able to get a
“lesser sentence”). Id. at 7:19-21;
10:13-21; 11:19-22. Defendant stated the agent in the back
had a “strong alcohol smell.” Id. at
felt coerced and intimidated by the agents. Id. at
10:22-11:6. Defendant was scared for himself and for his
family; he wanted them to be safe; and it was real early in
the morning. Id. at 12:10-16. Therefore, Defendant
agreed to everything the agents were saying. Id. at
12:14-24 (“It was things that they told me to agree
with.”). Defendant states he was not agreeing
voluntarily. Id. at 12:25-13:2.
was in the SUV about forty minutes. Id. at 13:3-5.
While in the SUV, Defendant signed a “consent-to-search
form” allowing the agents to search his cell phone.
Id. at 15:11-20. He said he signed the form because
he had nothing to hide. Id. at 15:20-22. Defendant
testified he had “no idea” who Don Roberto is.
Id. at 23:14-15. Defendant did not know why Don
Roberto's phone number was in his phone. Id. at
23:16-18. According to Defendant, Agent Mella told him there
were messages in his phone from Don Roberto. Id. at