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United States v. Moya

United States District Court, E.D. Texas, Texarkana Division

April 16, 2019

UNITED STATES OF AMERICA
v.
ARMANDO MOYA

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          CAROLINE M. CRAVEN UNITED STATES MAGISTRATE JUDGE

         The 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. § 636. The following pending motion is before the Court:

         Defendant's Motion to Suppress Statement (Docket Entry # 49)

         The Court, having reviewed the relevant briefing and hearing arguments of counsel March 12, 2019, recommends the motion be DENIED.

         I. DEFENDANT'S MOTION TO SUPPRESS

         Armondo 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.

         II. THE GOVERNMENT'S RESPONSE

         In its 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.

         Jose 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. Id.

         On June 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.

         During 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. Id.

         Prior 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 drugs. Id.

         Defendant 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 SUV. Id.

         During 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.

         Defendant 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.

         After 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.

         III. MARCH 12, 2019 HEARING

         A. Defendant's testimony

         Defendant 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.

         The 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.

         Agent Mella and Defendant sat in the front, and another agent was in the back.[1] 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.

         Defendant 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 11:17-19.

         Defendant 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.

         Defendant 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 23:19-24:7. ...


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