IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

United States of America

Crim. Case No. 17-164 (PG)

Vs.

Joseph Cotto Fontanez [2]

Defendants

MOTION TO SUPPRESS CONFESSION

TO THE HONORABLE COURT:

NOW COMES, defendant, through the undersigned attorneys, and

very respectfully state, allege and pray:

1. The indictment in this case was filed on March 9, 2017.

2. The defendants in this case were arrested in the Dominican

Republic on January 12, 2017 while on board a black SUV vehicle. Inside

the vehicle there were three bags containing several packages of a white

powder presumed to be cocaine.

3. After their arrest, the three defendants, along with an unindicted

Dominican national, were charged with the unlawful possession of

narcotics by the Dominican authorities. All three defendants were

detained awaiting trial in the Dominican Republic for the charged offenses.

4. The report of investigation indicates that [o]n March 2, 2017 at

approximately 12:52pm, SA Meliton Cordero interviewed Joseph COTTO-

Fontanez at the Samana, DR detention facility. Present in the interview

room was the Prosecutor, a high ranking official of the National Directorate

of Drug Control for the Dominican Republic, and two additional special

agents. The report of investigation also indicates that the defendant was

informed of his Miranda warnings, to which he responded that he

understood.

5. The interview conducted and the defendant allegedly admitted to

SA Cordero that:

1) He knows that a kilogram of cocaine costs around $20,000 in

Puerto Rico.

2) He received two money transfers on behalf of Giovanni Alvarez.

3) He did not personally know the individuals who sent him the

money.

6. The defendant proffers that he was never explained his Miranda

rights nor given any such warnings. The defendant indicated in a written

statement to the undersigned that he was never informed of 1) his right

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not to participate in the interview, 2) that he was never apprised of his right

not to self-incriminate through his statements, or 3) to have counsel

present during the interview. The defendant also indicated that counsel

that handled the proceedings in the Dominican Republic never arrived and

that they were not called or summoned to the interview. Defendant also

indicated verbally to the undersigned that he was never apprised of the

possibility that his statements may be entered into evidence against him

in a criminal proceeding.

DEFENDANTS RIGHTS IN THE FACE OF GOVERNMENTAL

CUSTODIAL INTERVIEWS OR INTERROGATIONS

7. The Fifth Amendment to the Constitution of the United States of

America prohibits courts from admitting into evidence in a criminal trial,

an involuntary confession made by a defendant. Dickerson v. United

States 530 US 428, 433 (2000); United States v. Jacques 744 F3d 804,

809 (1st Cir. 2014). Once in custody an individual must be apprised of his

right to remain silent and warned that any admission or statement uttered

in the presence of a law enforcement officer may be admitted into

evidence. Miranda v. Arizona 384 US 436, 444 (1966).

8. The Sixth Amendment incorporates several fundamental

procedural protections for criminal defendants, one of which is the right to

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be assisted by counsel throughout any relevant portion of criminal

proceedings. Gideon . Wainwright 372 U.S. 335, 343 (1963). Miranda

clarified that such protection extends to custodial interrogations and that

an individual must be informed of his right to have counsel present and to

have one appointed in case he is unable to afford one. 384 US at 472.

9. By incorporating these protections to custodial interrogations, the

Supreme Court sought to achieve two distinct objectives: to minimize the

amount of involuntary confessions being admitted as evidence in courts

throughout the United States; and to increase the trustworthiness of these

admissions. Oregon v. Elstad, 470 U.S. 298, 308, 105 S.Ct. 1285, 84

L.Ed.2d 222 (1985). Hence, confessions or admissions taken before the

warnings are given are subject to the exclusionary rule enunciated in

Miranda supra, which acts as a deterrent against practices aimed at

eliciting confessions that although not necessarily coerced, are involuntary

because the individual is not aware of his rights under Fifth and Sixth

Amendments.

10. It is clear, that codefendant Cotto was in custody and that he

was interrogated in the sense that his admissions resulted after Cotto was

posed questions regarding his involvement in the smuggling attempt.

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Therefore, Cotto had a right to be apprised of his right to have counsel

present and to refuse to be interviewed.

11. An entirely different question is if the exclusionary rule applies.

That is, if there are deterrent concerns regarding the interview which justify

the exclusionary rule.

12. Confessions by foreign officers are ordinarily not bound by

Miranda because the rule is aimed at deterring coercive practices that

extract involuntary confessions for admission in courts the United States,

and there is little deterrent value in controlling interrogation practices in

foreign countries. US v. Abu Ali 528 F3d 210, 227 (4th Cir. 2008); citing

United States v. Martindale, 790 F.2d 1129, 1132 (4th Cir. 1986); United

States v. Yousef, 327 F.3d 56, 145 (2d Cir. 2003); Kilday v. United States,

481 F.2d 655, 656 (5th Cir. 1973). (None of these cases seem to deal

with coerced confessions).

13. However Miranda does apply, when foreign officers received

sufficient assistance from federal officers so that their interrogation is in

fact a joint venture; or act as agents of federal authorities. Abu Ali supra;

citing United States v. Maturo, 982 F.2d 57, 61 (2d Cir. 1992) and United

States v. Heller, 625 F.2d 594, 599 (5th Cir. 1980).

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 14. Since the report of investigation itself indicates that Meliton

Cordero is a special agent with the Drug Enforcement Administration and

that he himself conducted the interview there should be no question that

Miranda applies to the interview.

THE CIRCUMSTANCES SURROUNDING THE ALLEGED ADMISSION,

WARRANT AN INDEPENDENT EXAMINATION OF THE PARTIALLY

CHALLENGED CONFESSION

15. The circumstances surrounding a confession must be

considered in order to determine whether the confession was voluntarily

obtained. The Court must do that prior to admitting the confession into

evidence. In making that determination the Court must consider various

factors. Those factors are listed at 18 USC 3501.

16. In this case the defendant was arrested or detained for all

applicable legal purposes at the time of the interview.

17. The defendant was also interviewed outside the presence of

counsel.

18. The Court would have to consider whether the defendant was

sufficiently apprised of his right to have counsel present during the

interview and whether he was sufficiently apprised of his right not to give

any statement.

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 19. As stated above the defendant admitted that he knew the cost

of a kilogram of cocaine in Puerto Rico, and that he received money

intended for codefendant Alvarez on two occasions. These two

admissions implicate him, at least in an ancillary manner, in the drug

importation conspiracy.

20. In order to determine whether a confession has been freely

given the Court must employ a totality of the circumstances approach.

Withrow v. Williams, 507 U.S. 680, 689 (1993). An individuals decision to

speak to authorities must steam from the unfettered exercise of his own

free will. Id. A statement or confession given before the Miranda rights

and warnings are explained will be inadmissible, even if the confession

was otherwise voluntary. Withrow v. Williams 507 at 591. By protecting

the essential trial right against self-incrimination, and by eschewing the

abuses that may occur in a inquisitorial system run by confession-intensive

prosecutions; Miranda essentially protects the defendant from unreliable

statements being made at trial in order to establish his guilt. Id at 592.

21. In this case, the defendant participated in the interview,

however the report of investigation does not itemize the warnings given to

the defendants or the rights explained to him. The report simply refers to

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defendants Miranda rights. The report does not indicate which are those

rights and how they were explained to the defendant.

22. The undersigned submits that the mere and formulaic mention

of Miranda rights, or Miranda warnings is patently insufficient for the

Court to base its determination under 18 USC 3051, or to become satisfied

that the confession is admissible because it did not violate the procedural

safeguards contained in the Fifth and Sixth Amendments to the

Constitution of the United States of America.

23. The Supreme Court in Miranda intended to give concrete

constitutional guidelines for law enforcement officers to follow. Florida v.

Powell 559 US 50, 59 (2010).

In determining whether police officers adequately conveyed the four

warnings, we have said, reviewing courts are not required to

examine the words employed as if construing a will or defining the

terms of an easement. 1The inquiry is simply whether the warnings

reasonably conve[y] to [a suspect] his rights as required by

Miranda. Duckworth, 492 U.S., at 203, 109 S.Ct. 2875 (quoting

Prysock, 453 U.S., at 361, 101 S.Ct. 2806). 559 US at p. 60.

24. Although the opinion does not mandate adherence to any

particular or talismanic formulation of the Miranda warnings, the Powell

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court did require that these rights be sufficiently explained in their entirety

to a detainee prior to the taking of any statement which the Government

will later offer into evidence.

25. The mere mention of Miranda rights or warnings in the report

of investigation would not allow a court to conclude that the statements

were given after the rights to remain silent, not self-incriminate, to be

assisted by counsel, and to be appointed counsel free of cost were given.

26. Moreover, the defendant was already represented by counsel.

Therefore, it is at least suspicious. Notwithstanding that defendants were

represented by counsel, the interrogating officers nonetheless interviewed

them without summoning these attorneys to the interview.

27. The deterrence objective of the exclusionary rule announced

in Miranda clearly warrants exclusion of the interview. Officer Cordero took

the interview, mindful that the defendant was represented by counsel,

detained, and pursuant to his DEA agency authority. The interview was

taken without properly documenting the information of the rights that the

officer knows are sine qua non requirements for the admissibility into

evidence of any statement made during the interview. To be sure, the law

enforcement agents may interview the defendant and get him to

incriminate himself. But unless and until [Miranda] warnings and waiver

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are demonstrated by the prosecution at trial, no evidence obtained as a

result of interrogation can be used against [the declarant]. Miranda 384

US at p. 479.

28. From this statement it is obvious that the Supreme Court

requires that warnings are 1) opportune, meaning prior to any incriminating

statements, 2) complete, which means that all warnings must be

enunciated or informed in such a manner that the defendant understands

them. Even in Berghuis, Warden v. Thompkins 560 US 370, 130 S. Ct.

2250 (2010) where the Supreme Court rejected that a defendant may

invoke his right to assistance of counsel and against self incrimination

through ambiguous conduct; the Court recognized that Miranda warnings

requirements are still relevant, slip copy at p. 8; and that Miranda imposes

a formalistic and practical rule upon police in their investigations, slip copy

at 13.

29. All that the report of the interview does is provide us with the

legal conclusion that the Miranda warnings were allegedly given to Cotto

and that he allegedly responded that he understood so as to provide a

frame for a finding that a explicit or implied waiver occurred. It does not

indicate which rights were informed, what conduct or statement the

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defendant exhibited which implied a waiver, nor the moment in which

these rights were informed.

30. The Government will likely contend that special agent Cordero,

or any of the individuals present, may cure the deficiency by itemizing the

warnings allegedly given during the interview. Eliciting testimony now in

this case to establish that the warnings were explained to the defendant

back in March would put the defendant in a clear disadvantage. That is

because the duty and obligation to enunciate and explain all the Miranda

rights prior to the incriminating statements, lies with the Government. That

duty is an objective and absolute duty that arises prior to interrogation.

31. A law enforcement agent that saves the details of which

Miranda warnings were actually given to the defendant, the declarants

conduct regarding waiver, and the timing of such warnings, potentially

benefits from his halfhearted effort. If the agent does not opportunely give

the complete warnings to the defendant he can always testify that he did.

A loose and ambiguous record engenders the potential of

overrepresenting incomplete warnings, waiver oriented condut, and

manipulating the timing of inopportunely given warnings. The practice

substantially diminishes the ability to meaningful inquire into the warnings

actually given to the defendant, understood, waived, and whether they

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were given prior to the taking of the statements. The warnings must be

given prior to any incriminating statements being taken from the

defendant. Missouri v. Seibert 542 U.S. 600, 613-614 (2004). (Where the

Supreme Court sharply rebuked the question-now warn-later repeat-

question strategy)

32. The defendant has no duty to raise these rights prior to the

warnings, let alone remind the Government that such rights need to be

explained to him. It is the Government who must take the prophylactic

measures aimed at protecting any statements given during the interview.

The defendant in this case had already been appointed counsel and was

interviewed outside the presence of counsel, and without notifying counsel

of the interview. A violation of both the Fifth and the Sixth Amendments is

more than probable at this juncture.

33. Thus, there is ample motivation for Government witness to

provide a legally robust, yet factually inaccurate, statement regarding the

explanation of Miranda, the defendants conduct which implied waiver, and

the timing that the warnings were actually given to the defendant.

Nonetheless, the Government, who has the original duty to inform the

defendant of his Miranda rights, would get a second bite at the apple to

cure the deficient conduct in what is already a flimsy interview environment

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because defendants legal representation was not summoned into the

interview.

34. Such after-the -fact approach should be rejected by the District

Court. Miranda rights are not novel, and in fact virtually every law

enforcement agency has developed a written form and a verbal protocol

that will allow it to enunciate the Miranda warnings without missing any

important requirement, to formalize and document any waiver conduct or

expression by the defendant, and to memorialize their timing. However,

the interview in this case did not even list the rights allegedly explained to

the defendant prior to the interview. This is not a substantial requirement,

and it poses no significant threat to the law enforcement operations. There

is no reasonable excuse for failing to properly execute a waiver form, or

list the actual Miranda warnings given to the defendants, and their timing

in a report made for the purpose of memorializing the interviews.

35. Such action shows clear disregard for the deterrent concerns

expressed by the Supreme Court and warrants the full application of the

exclusionary rule.

WHEREFORE, it is respectfully requested from this Honorable Court

that it issues an order 1) enjoining the Government from offering the

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confession into evidence and 2) enjoining the Government witnesses from

referring to the contents of such alleged oral confession.

RESPECTFULLY SUBMITTED.

In San Juan, Puerto Rico, this October 17, 2017.

IT IS HEREBY CERTIFIED: that on this date the undersigned

attorney was filed the foregoing document with the Clerk of the Court using

the CM/ECF system which will send notification of such filing to all

attorneys of record.

90 Ave. Rio Hondo PMB 130

Bayamon, PR 00961
Tel. 787-647-6632
Fax. 775-366-7629

S/ Julio C Alejandro S
JULIO CESAR ALEJANDO SERRANO
USDC-PR 216602
alejandroj.abogadopr@gmail.com

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