ORDER (1) DENYING DEFENDANT'S MOTION TO SEVER WITHOUT PREJUDICE; AND (2) DENYING DEFENDANT'S MOTION TO SUPPRESS

[Re: ECF 131, 132]

BETH LABSON FREEMAN, District Judge.

Defendant Jesus Peña-Nava faces conspiracy charges for his involvement in a methamphetamine trafficking organization headed by one of his co-defendants, Omar Tamayo-Garcia. The Drug Enforcement Administration ("DEA") conducted a yearlong investigation into the organization, which included a wiretap on Tamayo-Garcia's cell phone. Mr. Peña-Nava is scheduled to go to trial on April 30, 2018 with co-defendants Tamayo-Garcia, Gonzalo Torres-Mejia, Gerardo Peña, and Daniel Rivas. Mr. Peña-Nava now moves to sever his case from that of his co-defendants on the grounds that he will be unduly prejudiced by a joint trial. See Motion for Severance, ECF 132.

Mr. Peña-Nava also contends that his constitutional rights were violated on December 8, 2016, when he was interrogated at the federal courthouse in San Jose. See Motion to Suppress, ECF 131. Mr. Peña-Nava contends that after he was arrested at his home, a DEA agent and a U.S. Marshal interrogated him while he was in custody without ensuring that he understood his Miranda rights. See Motion to Suppress, ECF 131. Based on this asserted constitutional violation, Mr. Peña-Nava moves to suppress all of the statements that he made to these law enforcement agents during the interrogation, as well as any evidence gathered as a result of those statements. Id. Mr. Peña-Nava also requested an evidentiary hearing on his motion to suppress. Id.

The Court heard oral argument on Mr. Peña-Nava's motion to sever and motion to suppress on October 3, 2017. For the reasons set forth below and on the record at the hearing, Mr. Peña-Nava's motion to sever his case is DENIED without prejudice to filing a renewed motion closer to trial. Mr. Peña-Nava's motion to suppress his statements is DENIED.

I. MOTION TO SEVER

Pursuant to Federal Rule of Criminal Procedure 8(b), criminal defendants may be charged in the same indictment and tried together. Rule 8(b) provides that "[t]he indictment or information may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses." Fed. R. Crim. Proc. 8. However, even if criminal defendants are properly joined under Rule 8(b), such joinder may improperly prejudice one or all of the defendants. Zafiro v. United States, 506 U.S. 534 (1993). Thus, Rule 14(a) provides: "If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." Fed. R. Crim. Proc. 14(a).

As the moving party on a motion to sever, Mr. Peña-Nava "has the burden of proving that the joint trial was `manifestly prejudicial' in that his right to a fair trial was abridged." United States v. Mitchell, 502 F.3d 931, 963 (9th Cir. 2007). The degree of prejudice inflicted by joinder is a question that a district court must evaluate holistically. Zafiro, 506 U.S. at 539. "A district court should grant severance under Rule 14 only if there is a serious risk that a joint trial would prejudice a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539. For example, "[s]uch a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant." Id. The ultimate determination of severance under Rule 14 is within the discretion of the court. Id.

Mr. Peña-Nava moves to sever his case from that of his co-defendants under Rule 14(a). See ECF 132. He argues that his right to a fair trial will be prejudiced because he has nothing to do with much of the evidence that will be brought in against his co-defendants at trial. Id. 5. Although he moves to sever from all of his co-defendants, the hearing on Mr. Peña-Nava's motion made clear that his primary concern is a joint trial with Tamayo-Garcia. Mr. Peña-Nava points out that he is only charged with one count, whereas Tamayo-Garcia faces six counts. Id. Moreover, Mr. Peña-Nava characterizes his participation in the alleged conspiracy as "limited" because he does not appear "in any context" until October 2016, which is eight months after the initiation of the Government's investigation into the organization. Id. 3. With regards to the impact of a separate trial on judicial efficiency, Mr. Peña-Nava concedes that his separate trial "may create an increased burden on the court and the prosecution," but argues that the burden is not excessive or unwarranted. Id. 7.

The Government responds that the evidence against Mr. Peña-Nava is intertwined with the evidence against the other defendants in this case, and most of the evidence consists of conversations recorded on the wiretap on Tamayo-Garcia's phone. See ECF 144. The Government also points out that the conspiracy charged in this case is only a two-and-a-half month period from September 19, 2016 through December 1, 2016. Id. 1. Therefore, contrary to Mr. Peña-Nava's assertion that he appears "late" with respect to the initiation of the investigation, he actually appears on the wiretap very early on in the charged conspiracy. In fact, Mr. Peña-Nava is intercepted on the wiretap on September 20, 2016—the day after the charged conspiracy begins—driving to pick up Tamayo-Garcia and an unspecified "box" when Tamayo-Garcia's car broke down and he was concerned about police presence in the area. Id. 1, 6. Mr. Peña-Nava is involved in a number of calls on the wiretap over the course of the conspiracy, and uses the same code to describe the sale of methamphetamine as used by other defendants. Id. Given the identical language used among the co-defendants, the Government argues that much of the wiretap evidence would be relevant to Mr. Peña-Nava's role in the conspiracy. Even evidence from the pre-conspiracy encounter in February 2016 between Tamayo-Garcia and an undercover agent involves the language used in conversations with Mr. Peña-Nava recorded on the wiretap. Id. 4.

As the Court explained on the record at the hearing, the evidence against Mr. Peña-Nava at trial will include much of the evidence against Tamayo-Garcia and the other defendants. Mr. Peña-Nava has not shown how the evidence against his co-defendants involving the conspiracy would not still be admissible against him in a separate trial. See United States v. Fernandez, 388 F.3d 1199, 1242 (9th Cir. 2004), modified, 425 F.3d 1248 (9th Cir. 2005) ("We have previously noted that a joint trial is particularly appropriate where the co-defendants are charged with conspiracy, because the concern for judicial efficiency is less likely to be outweighed by possible prejudice to the defendants when much of the same evidence would be admissible against each of them in separate trials.")

To the extent Mr. Peña-Nava is concerned about evidence relating to the additional crimes in the indictment for which Mr. Peña-Nava is not charged, the Government points out that Counts Four and Six involve only Defendant Rosaisela Perez, who is not set for trial with Mr. Peña-Nava. Id. 6-7. Moreover, Counts Two, Three, and Five against Tamayo-Garcia involve evidence that would also be admissible on the conspiracy charge. For example, the Government could bring in the evidence from Tamayo-Garcia's sales of methamphetamine, the prices at which he sold it, and the code terms he used in order to prove the existence of a conspiracy. This undermines the risk of prejudice to Mr. Peña-Nava, since he cannot demonstrate why evidence on the additional counts would not also come in against him on the conspiracy charge.

Finally, if evidence is introduced at the joint trial that should not be considered against Mr. Peña-Nava on the conspiracy count, the Court is satisfied that the jury can be properly instructed. The circumstances of this case are not so complex that a jury would be unable to compartmentalize the evidence as it relates to Tamayo-Garcia, the alleged leader of the criminal organization, compared to Mr. Peña-Nava's alleged role as his helper. For these reasons, as well as the reasons stated on the record at the hearing, Mr. Peña-Nava's motion to sever his case under Rule 14 is DENIED without prejudice. Mr. Peña-Nava may renew this motion at any time before the final pre-trial conference in this case, at which point there will be a more clear picture of the evidence as well as which of Mr. Peña-Nava's co-defendants will be proceeding to trial.

II. MOTION TO SUPPRESS

Mr. Peña-Nava also moves to suppress his statements made during a custodial interrogation with law enforcement officers on December 8, 2016, as well as any evidence gathered as a result of those statements. See ECF 131 ("Motion to Suppress"). In his motion to suppress, Mr. Peña-Nava requested an evidentiary hearing. However, at oral argument on October 3, 2017, Mr. Peña-Nava withdrew his request for an evidentiary hearing and submitted that the Court could rule on the motion to suppress based on the evidence in the record. The evidence includes a transcript and audio recording of the exchange between Mr. Peña-Nava and law enforcement officials, as well as the declarations of Mr. Peña-Nava and Deputy U.S. Marshal Fernando Viera.

The Court has considered the record in this case, oral argument from counsel at the hearing, and the governing law. For the reasons set forth below, the Court finds that Mr. Peña-Nava was adequately advised of his constitutional rights and voluntarily, knowingly, and intelligently waived those rights. Therefore, Mr. Peña-Nava's motion to suppress his statements made during the December 8, 2016 interrogation is DENIED.

A. Background

The Government and Mr. Peña-Nava dispute whether the facts in the record establish a constitutional violation for failure to advise Mr. Peña-Nava of his Miranda rights and failure to obtain a valid waiver of those rights. On December 8, 2016, Mr. Peña-Nava was arrested at his home in Greenfield, California by DEA agents. Declaration of Jesus Peña-Nava ¶ 4 ("Peña-Nava Decl."), ECF 131-1. After his arrest, Mr. Peña-Nava was then transported to the federal courthouse in San Jose where he was interviewed by DEA Agent Tyler Fernandez and another individual identified as Agent Fernandez's partner. Id. That partner was Deputy U.S. Marshal Fernando Viera. Declaration of DUSM Viera ¶ 2 ("Viera Decl.") ECF 143-3. DUSM Viera is fluent in Spanish. Id. ¶ 1.

At the outset of the interview, DUSM Viera attempted to read Mr. Peña-Nava his Miranda rights from a card issued by the San Jose Police Department. Id. ¶ 3. The card contained the text of Miranda advisements in Spanish and in English. Id. Mr. Peña-Nava is a Mexican national who is fluent in Spanish and can read Spanish. Peña-Nava Decl. ¶ 8. Although he can speak a bit of English, he is not fluent in English and cannot read English. Id.

DUSM Viera admits that he had difficulty reading the card because he did not have his glasses with him. Viera Decl. ¶ 3; accord Peña-Nava Decl. ¶ 6. Although he struggled to read the card without his glasses, DUSM Viera gave Mr. Peña-Nava the following advisement in Spanish:

Transcript of Advisement and Subsequent Interrogation ("Transcript"), ECF 131-2 at 1. As he recited the above advisement, DUSM Viera expressed that he could not see, and placed the card in a position for Mr. Peña-Nava to read along with him. Peña-Nava Decl. ¶ 6; Viera Decl. ¶ 3. DUSM Viera further states that he underlined the words with his finger as he read the advisement, and that Mr. Peña-Nava looked at the card and indicated that he was following along. Viera Decl. ¶ 3. However, Mr. Peña-Nava contends that he did not read the whole statement on the card but "started from where [DUSM Viera] indicated he had stopped reading." Peña-Nava Decl. ¶ 6.

DUSM Viera then asked Mr. Peña-Nava in Spanish if he wished to speak with them, and Mr. Peña-Nava responded: "Ahh, well it says I have to have an attorney or..." Id. at 2.1 Mr. Peña-Nava explains that when he said "it" he was referring to the card with the Miranda advisements. Peña-Nava Decl. ¶ 7. The exchange in Spanish between DUSM Viera and Mr. Peña-Nava then continued as follows:

Transcript at 2. DUSM Viera then explained to Agent Fernandez in English the warnings he had given to Mr. Peña-Nava and stated that Mr. Peña-Nava was willing to talk to them without a lawyer present. Transcript at 2-3. Agent Fernandez then proceeded to question Mr. Peña-Nava about his relationship with Defendant Tamayo-Garcia. Transcript at 3-6.

Mr. Peña-Nava now moves to suppress the statements that he made in response to Agent Fernandez's questioning on the grounds that he did not understand that he had the right to an attorney during the interview. Peña-Nava Decl. ¶ 7. The question before the Court is therefore whether Mr. Peña-Nava was given adequate Miranda warnings and whether he voluntarily, knowingly, and intelligently waived his right to counsel.

B. Legal Standard

The Fifth Amendment privilege against self-incrimination requires that a person be advised of certain rights if they are "in custody" and "subjected to interrogation." Miranda v. Arizona, 384 U.S. 436, 467-468 (1966). The Supreme Court instituted procedural safeguards to protect the privilege, requiring law enforcement to warn an individual in custody prior to questioning that "he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Id. at 478-79. If the Government fails to provide such advisements, certain statements made by a person during a custodial interrogation are deemed inadmissible. See id. However, the Supreme Court has made clear that there is no rigidity as to the form of the required Miranda warnings. See California v. Prysock, 453 U.S. 355, 359 (1981) ("Miranda itself indicated that no talismanic incantation was required to satisfy its strictures.") Rather than require law enforcement to provide criminal defendants with a verbatim recitation of their Miranda rights, the warning requirement can be satisfied by a "fully effective equivalent." Prysock, 453 U.S. at 359 (quoting Miranda, 384 U.S. at 476).

The opportunity to exercise the rights identified by the Supreme Court in Miranda must be afforded to the individual throughout the interrogation. 384 U.S. at 479. After warnings and the opportunity to exercise these rights has been given, "the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement." Id; See also United States v. Binder, 769 F.2d 595, 599 (9th Cir.1985) ("For inculpatory statements made by a defendant during custodial interrogation to be admissible in evidence, the defendant's `waiver of Miranda rights must be voluntary, knowing, and intelligent.'"). "[A] heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his [rights]." Berghuis v. Thompkins, 560 U.S. 370, 383 (2010) (quoting Miranda, 384 U.S. at 475). A valid waiver depends upon the "totality of the circumstances including the background, experience, and conduct of defendant." United States v. Bernard, S., 795 F.2d 749, 751 (9th Cir.1986).

"Waivers of Miranda rights need not be explicit; a suspect may impliedly waive the rights by answering an officer's questions after receiving Miranda warnings." United States v. Rodriguez-Preciado, 399 F.3d 1118, 1127 (9th Cir. 2005), amended, 416 F.3d 939 (9th Cir. 2005) (citation omitted). However, "establish[ing] that a Miranda warning was given and the accused made an uncoerced statement . . . is insufficient to demonstrate `a valid waiver' of Miranda rights. The prosecution must make the additional showing that the accused understood these rights." Berghuis, 560 U.S. at 384 (internal citations omitted). Specifically, the prosecution must show that the waiver was "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Id. at 383-84 (internal citations omitted). On a motion to suppress, the government bears the burden of demonstrating waiver by a preponderance of the evidence. See Colorado v. Connelly, 479 U.S. 157, 168 (1986).

C. Discussion

Mr. Peña-Nava argues that he did not receive adequate Miranda warnings and therefore he was confused and did not understand that he had a right to have an attorney present both before and during the interrogation. See ECF 131. Without such an understanding, he argues that he could not have voluntarily, knowingly, and intelligently waived his rights. Id. As a result, he claims that his Fifth Amendment rights were violated and all of his statements made during the interview must be suppressed pursuant to the exclusionary rule. The Government does not dispute that the circumstances here amounted to a custodial interrogation. Rather, the Government argues that even though DUSM Viera's recitation of the card containing the Miranda warnings varied from its written language, Mr. Peña-Nava was fully advised that he had a right to counsel during the interrogation. See ECF 143. The Government further contends that Mr. Peña-Nava voluntarily, knowingly, and intelligently waived his rights by acting inconsistently with a decision to exercise them. Id. 4. The Court has reviewed the audio and transcript of the interview and finds that prior to questioning, DUSM Viera fully conveyed to Mr. Peña-Nava his right to have an attorney present before and during the interrogation. The Government has also shown by a preponderance of the evidence that Mr. Peña-Nava understood his rights and waived them.

Contrary to Mr. Peña-Nava's assertion that the advisement given to him was "grossly incorrect," the audio recording and transcript show that DUSM Viera clearly informed Mr. Peña-Nava in Spanish that he had the right to the presence of appointed counsel prior to and during the interrogation. Although it may not have been a verbatim Miranda warning due to DUSM Viera's difficulty reading the card without his glasses, the exchange was a "fully effective equivalent" of a verbatim recitation and the warning did not contradict itself. See Miranda, 384 U.S. at 476. Mr. Peña-Nava relies on United States v. San Juan-Cruz, 314 F.3d 384, 387 (9th Cir. 2002) to argue that the Miranda warnings that he received were inadequate and confusing. See Motion to Suppress, 6. The advisements given in San Juan-Cruz bear no resemblance to the circumstances here. In that case, the agents read two conflicting sets of warnings to the defendant who faced immigration proceedings as well as criminal charges. 314 F.3d at 387. With respect to the immigration proceedings, the defendant was advised that he had the right to an attorney but not at government expense. Id. He was then given Miranda warnings indicating that if he could not afford an attorney then one would be appointed at government expense. Id. Under these circumstances, the Ninth Circuit held that the defendant could not ascertain whether or not he had the right to retain an attorney for free during the interrogation. Id.

Here, in contrast, Mr. Peña-Nava was never told that he did not have the right to an attorney at government expense during his interrogation. Although DUSM Viera initially indicated that Mr. Peña-Nava had the right to an attorney "before and after" any interrogation, he immediately added in his next breath in Spanish that "[i]f you cannot pay for an attorney, one will be appointed free to represent you before and during the interrogation." Transcript at 2. Therefore, Mr. Peña-Nava was clearly advised that he had the right to counsel before and during any interrogation. DUSM Viera's statements do not contradict each other like the warnings given in San Juan-Cruz. Rather, in totality, the statements convey that Mr. Peña-Nava had the right to an attorney at government expense before, during, and after any interrogation.

In regards to waiver, the Court considers the totality of the evidence in the record to determine whether Mr. Peña-Nava understood his rights and then proceeded to waive them by making statements in response to questioning by Agent Fernandez. After receiving the Miranda warnings, Mr. Peña-Nava's subsequent statements make clear that he understood that he had the right to counsel during the interrogation. In fact, he initially communicated that he believed he was required to have an attorney present. After DUSM Viera read the advisement, he asked if Mr. Peña-Nava wished to speak to law enforcement. Transcript at 2. Mr. Peña-Nava responded: "Ahh, well it says I have to have an attorney." Id. If Mr. Peña-Nava interpreted his Miranda rights as requiring him to have an attorney present during the interview, he could not also reasonably believe that he did not have a right to an attorney during the interview. DUSM Viera then further clarified Mr. Peña-Nava's right to counsel by stating: "You have the right to have an attorney. The question is if you want to talk to [Agent Fernandez] without the attorney, or want an attorney present?" This is not a situation where a Miranda warning erroneously linked the right to appointed counsel to some future point in time, such as after arraignment or at a court appearance. See Prysock, 453 U.S. at 359-60. Rather, DUSM Viera's warning made clear that appointed counsel was available to Mr. Peña-Nava before and during the interview.

The Government also points out that this interaction likely was not the first time Mr. Peña-Nava had been informed of his Miranda rights. ECF 143 at 5. There is evidence in the record that Mr. Peña-Nava has been arrested eight times. See ECF 143-2. These prior arrests suggest that Mr. Peña-Nava has been Mirandized several times, which further supports the Government's contention that he fully understood his right to have counsel present. See, e.g., United States v. Heredia-Fernandez, 756 F.2d 1412, 1416 (9th Cir. 1985) (finding that the defendant "had been arrested approximately 15 times in the preceding eight to ten years, and so might fairly have been presumed to be familiar with Miranda rights procedures."). In United States v. Glover, the Ninth Circuit affirmed the district court's finding of a knowing and intelligent waiver because the defendant had "extensive dealings with the criminal process" which "made him familiar with the right to remain silent, the right to counsel, and the option to waive those rights." 596 F.2d 857, 866 (9th Cir. 1979). The Ninth Circuit also considered that the agents who gave the warnings to the defendant further testified that the defendant appeared to understand them and to respond appropriately. Id. Here too, DUSM Viera declares that Mr. Peña-Nava was "alert and calm," and did not appear confused at any point during the advisements or the subsequent interview. Viera Decl. ¶ 4. For the foregoing reasons, Mr. Peña-Nava's assertion that he did not understand his right to counsel during the interrogation is not credible.

Mr. Peña-Nava offers no other basis for the Court to find that his waiver of his rights was not voluntary, knowing, and intelligent. He argues only that DUSM Viera's Miranda advisement was so inadequate and confusing that Mr. Peña-Nava could not be expected to ascertain that he had a right to counsel both before and during the interrogation. Motion to Suppress at 8. As explained above, the Court has found that the warning was adequate. Moreover, the Government has shown by a preponderance of the evidence that Mr. Peña-Nava understood his right to counsel.

Mr. Peña-Nava does not argue that he was intimidated or coerced in any way, although in his declaration he states that he "felt compelled, under the circumstances to speak to the agents and tried to cooperate, but without fully comprehending my right to counsel." Peña-Nava Decl. ¶ 7. However, the audio recording and transcript make clear that DUSM Viera reassured him in Spanish that "if you don't want to speak with [Agent Fernandez], it's okay." Transcript at 2. Mr. Peña-Nava immediately responded: "No, it's okay there's no problem," and then proceeded to answer Agent Fernandez's questions. Id. The professional and measured tone of the interview provides further evidence that Mr. Peña-Nava voluntarily waived his rights. After he was advised of his rights, Mr. Peña-Nava confirmed that he wished to speak to Agent Fernandez and immediately began discussing his relationship with Defendant Tamayo-Garcia. The Court concludes from the audio recording and the transcript that the interview has the characteristics of a voluntary and consensual conversation. Thus, the evidence strongly indicates that the waiver was voluntary.

The waiver was also knowing and intelligent. The only evidence in the record indicating that Mr. Peña-Nava was confused about the nature of his rights in any way is his subsequent declaration that he "did not understand that [he] had a right to an attorney at the time of the interview." Peña-Nava Decl. ¶ 7. That statement is directly at odds with Mr. Peña-Nava's statement to DUSM Viera at the time of the incident when he said: "Ahh, well [the card] says I have to have an attorney." Transcript at 2. DUSM Viera further declares that Mr. Peña-Nava's demeanor did not suggest that he was confused. Viera Decl. ¶ 4. Other than expressing an initial understanding that he was required to have an attorney present, Mr. Peña-Nava never asked DUSM to clarify his rights. He even read at least a portion of the card containing the Miranda advisement along with DUSM Viera. Peña-Nava Decl. ¶ 6. As explained above, the evidence in the record makes clear that Mr. Peña-Nava fully understood his rights, and understood the consequences of abandoning those rights when he agreed to talk to law enforcement.

For the foregoing reasons, the Court concludes that Mr. Peña-Nava was given adequate Miranda warnings, and the Government has met its "heavy burden... to demonstrate that the defendant knowingly and intelligently waived his [rights]." See Berghuis, 560 U.S. at 383. Accordingly, Mr. Peña-Nava's motion to suppress his statements from the December 8, 2016 interview is DENIED.

IT IS SO ORDERED.