United States v. Blanco

          MEMORANDUM OPINION AND ORDER

          HONORABLE DAVID BRIONES SENIOR UNITED STATES DISTRICT JUDGE

         On this day, the Court considered Defendant Javier Blanco Jr.'s ("Mr. Blanco") "Motion to Suppress Evidence" ("Motion"), filed in the above-captioned case on May 22, 2019. On June 3, 2019, the United States of America ("the Government") filed its Response. On August 7, 2019, the Court held a hearing on Mr. Blanco's Motion at which Mr. Blanco was present and represented by counsel. After due consideration, the Court is of the opinion that Mr. Blanco's Motion should be denied.

         FACTS

         Defendant is charged in a three-count indictment with intentional money laundering in violation of 18 U.S.C. §§ 1956 (a)(2)(B)(ii) and (2), bulk cash smuggling in violation of 31 U.S.C. § 5332(a)(1) and (b); and conspiracy to smuggle aliens in violation of 8 U.S.C. §§ 1324 (a)(1)(A)(v)(I), (a)(1)(A)(ii), and (a)(1)(B)(i). Indictment 1, ECF No. 15.

         On April 19, 2019, Mr. Blanco entered the United States from Mexico via a pedestrian lane on the Bridge of the Americas Port of Entry in El Paso, Texas. Mot. 1, ECF No. 21; Resp. 1, ECF No. 24. Customs and Border Patrol Officer ("CBPO") Kevin Coker ("CBPO Coker") asked, in English, where Mr. Blanco was headed. Hr'g Tr. at 5, U.S. v. Javier Blanco Jr., (No. 19-CT-1501).^[1] Mr. Blanco responded, in English, "home." Id. CBPO Coker than asked Mr. Blanco, in Spanish, where he was coming from. Resp. 1, ECF No. 24. Mr. Blanco responded, in Spanish, that he had gone to Mexico to visit his mother. Id.

         Nearly simultaneously, CBPO Benito Canales ("CBPO Canales") and his trained narcotics-detecting dog were conducting a K-9 sweep of pedestrian lanes. Id. at 2. The K-9 unit alerted to Mr. Blanco's pockets. Id. CBPO Canales asked, in Spanish, what was in Mr. Blanco's pockets. Id. Mr. Blanco removed several items from his pockets including large bundles of U.S. currency. Id. After some additional discussion, CBPO Canales asked, in Spanish, how much money Mr. Blanco had. Id. Mr. Blanco answered in Spanish that he had $7, 200. Id. CBPO Coker sought clarification in English, "$7, 200?" Id. To which Mr. Blanco answered in the affirmative. Id.

         Mr. Blanco was taken to secondary inspection where CBPOs conducted a pat down search and found additional bundles of cash. Id. The money was counted in Mr. Blanco's presence and totaled $15, 305. Id. Mr. Blanco was detained and placed in custody for further investigation when CBPO Coker continued to switch between English and Spanish. See Hr'g Tr. at 7, 22.

         Homeland Security Investigations Special Agent Juan Ortiz ("SA Ortiz) and Task Force Officer Carlos Castro removed Mr. Blanco from the holding cell and took him into an interview room. Resp. 2, ECF No. 24. SA Ortiz advised Mr. Blanco that he was investigating and would like to interview Mr. Blanco. Id. SA Ortiz further asked Mr. Blanco whether he would prefer to speak in English or Spanish. Id. Mr. Blanco responded that he understood English, and that it was fine to continue in English. Id. SA Ortiz proceeded to ask Mr. Blanco numerous biographical questions in English, to which Mr. Blanco responded in Spanish. Hr'g Tr. at 11; Mot. 2, ECF No. 21; Resp. 3, ECF No. 24.

         SA Ortiz then asked, in English, if Mr. Blanco would rather be advised of his rights in English or Spanish and Mr. Blanco responded that he understands both. Hr'g Tr. at 15. SA Ortiz advised Mr. Blanco that he would proceed in English, but if Mr. Blanco had a question, then he only need ask; or if Mr. Blanco felt uncomfortable with the English version of the Miranda rights, he could give them to Mr. Blanco in Spanish. Resp. 2, ECF No. 24. Mr. Blanco nodded in the affirmative that he understood. Id. While SA Ortiz read the Miranda warnings, he also showed him a standard advice of rights form. Hr'g Tr. at 13. Mr. Blanco did not indicate in any way that he was having trouble understanding English, nor did he ask for an interpreter. Id. Mr. Blanco never asked SA Ortiz to repeat himself. Id. at 14. Mr. Blanco nodded his head after each warning was read. Video of Blanco Rights Advisal, Gov't Ex. 4, ECF No. 35; Hr'g Tr. at 16. SA Oritz believed that Mr. Blanco understood English. Hr'g Tr. at 13.

         After reading the form, SA Ortiz asked Mr. Blanco if he had any questions, Mr. Blanco responded, "no." Resp. 3, ECF No. 24. SA Ortiz asked Mr. Blanco to read the form aloud but did not wait for Mr. Blanco to do so. Hr'g Tr. at 26. After Mr. Blanco asked him for clarification, SA Ortiz explained to Mr. Blanco, in Spanish, that Mr. Blanco needed to acknowledge that he understood his rights by initialing next to each listed right on the waiver. See id. at 16; Gov't Ex. 4, ECF No. 35. Then SA Ortiz began questioning, in English, Mr. Blanco about the incident at the bridge, and Mr. Blanco immediately requested that he begin his questioning again in Spanish. Mot. 2, ECF No. 21; Resp. 3, ECF No. 24. The interview proceeded entirely in Spanish from this point. Mot. 2, ECF No. 21; Resp. 3, ECF No. 24. Mr. Blanco's demeanor throughout these exchanges was calm, cooperative, and alert. Hr'g Tr. at 13-14;Gov't Ex. 4.

         The Court further notes that Mr. Blanco has no known criminal history prior to this incident. Hr'g Tr. at 22. Mr. Blanco is a nineteen-year old U.S. Citizen who was two months away from completing is high school education at an alternative school for high school drop outs. Mot. 1, ECF No. 21. But he has not graduated in part due to his failure to obtain credits in English. See Hr'g Tr. at 18, 23. However, he passed all his other courses like History, Science, and Social Studies, which were all taught in English. Hr'g Tr. at 18. He suffers from no mental disease or defect and showed no signs of intoxication during this interaction. Resp. 5, ECF No. 24; Hr'g Tr. at 23.

         STANDARD

         The Fifth Amendment guarantees that "[n]o person... shall be compelled in any criminal case to be a witness against himself." U.S. Const, amend. V. Evidence obtained in violation of the Fifth Amendment must be suppressed and cannot be used at trial. Oregon v. Elstad, 470 U.S. 298, 306 (1985) (explaining that the Fifth Amendment prohibits the use of compelled testimony at trial).

         In Miranda, the Supreme Court decided that a person subjected to a custodial interrogation must be given certain warnings designed to safeguard his or her Fifth Amendment rights. Miranda v. Arizona,384 U.S. 436, 444-45 (1966). Without a knowing and voluntary waiver of those rights, any ...