REPORT AND RECOMMENDATION

LYNNETTE C. KIMMINS, Magistrate Judge.

Pending before the Court is Defendant's Motion to Suppress Statements. (Doc. 127.) The government filed a response (Doc. 131); Defendant replied (Doc. 134). This matter came before the Court for a hearing and a report and recommendation as a result of a referral, pursuant to LRCrim 57.6. Evidence and argument were heard on December 18, 2019. (Doc. 136.) This matter was submitted following oral argument at the conclusion of the hearing.

Defendant alleges that his right to counsel was violated by his interrogation, therefore, he requests that his statement be suppressed. Having now considered the matter, the Magistrate Judge recommends that the District Court, after its independent review, deny Defendant's motion to suppress.

I. FACTS

Defendant Alan Rabago was indicted (with four co-conspirators) on February 27, 2019, for one count of facilitating the export of firearms from the United States and two counts of aiding and abetting the purchase of a firearm on behalf of another person. (Doc. 8.) ATF Special Agent (SA) Cornelius Gaines testified that Defendant participated in purchasing firearms for his brother to smuggle into Mexico.

SA Gaines testified that, at the time of Defendant's indictment, he was not in custody and a warrant was issued for his arrest. (Doc. 10.) Defendant was stopped at the port of entry (POE) as he returned to the United States from Mexico in the early hours of March 11, 2019. He was informed there was a warrant for his arrest. Defendant was held at the POE for approximately one hour, then transferred to the custody of the Pima County Sheriff's Office. The sheriff took him to the Ajo adult detention facility, where he slept for the remainder of the night.

Defendant testified that he asked the basis for the warrant at the POE but was given no response. He further testified that neither the transporting sheriff nor the intake people at the detention facility informed him of the charges against him or that he was under indictment. Defendant testified that when he asked the sheriff the reason for his arrest, the sheriff chuckled and said, "I think it might be a misdemeanor." Upon inquiry, SA Gaines was informed that the general practice for the transporting sheriff (Deputy Rovi) and the detention facility, is to inform an arrestee of the charges on a warrant. However, no personnel from CBP, the sheriff's office, or the detention facility have an independent recollection of informing Defendant of the charges against him or that he had been indicted.

On the morning of March 11, SA Gaines and SA Adler took custody of Defendant at the Ajo detention facility. They identified themselves as ATF agents and informed him that they would be transporting him to their office in Tucson and then to court for an initial appearance. They did not state the charges against him or notify him that he had been indicted. During transport, SA Gaines read Defendant his Miranda rights. (Ex. 2.) Defendant indicated that he understood them. (Id.) Before waiving his rights, Defendant indicated his willingness to answer was dependent upon the type of question. (Id.) SA Adler explained that if Defendant wanted to begin to have any conversation with the agents, he needed to understand and waive his rights, but the waiver was not permanent. (Id.) SA Adler clarified that, by waiving his rights, Defendant was not bound to answer any specific questions and could terminate questioning at any time and could request an attorney. (Id.) Defendant then agreed to answer questions. (Id.) Defendant testified that he knew, at the time of the waiver, he was charged with a crime and he was being taken to court for an initial appearance. He stated that he did not know the seriousness of the charge.

The agents first asked Defendant about being taken into custody at the POE, who he was with and what he drove. (Ex. 2.) Those events were unrelated to the pending charges. Next, the agents informed Defendant of the charges that had been brought against him. When told he was charged with smuggling, he asked, of what? The agents told him it was firearms. (Ex. 2.) Defendant proceeded to answer questions about the charged offenses in an interview that lasted approximately 2 hours and 20 minutes. Defendant never indicated that he did not want to answer further questions, did not ask agents to stop questioning him, and did not ask for a lawyer.

II. DISCUSSION

Defendant argues that his right to counsel under the Sixth Amendment was violated because he was not notified of the charges against him or that he was under indictment prior to waiving his Miranda rights. He contends that, because he did not know the nature and severity of the charges, his waiver was not knowing and intelligent. When evaluating a post-indictment defendant's waiver of his Sixth Amendment right to counsel, the Court must determine whether he was "made sufficiently aware of his right to have counsel present during the questioning, and of the possible consequences of a decision to forgo the aid of counsel." Patterson v. Illinois, 487 U.S. 285, 292-93 (1988). The Supreme Court holds that, after commencement of the judicial process when a defendant's Sixth Amendment right to counsel has attached, his waiver of that right generally will be considered knowing and intelligent if he is read his Miranda rights and agrees to waive them. Id. at 291 (noting that defendant had been apprised of indictment and charge prior to waiver); Montejo v. Louisiana, 556 U.S. 778, 786 (2009).

Defendant argues that the Miranda waiver was invalid in his case because he had not been informed of the charges against him. Contrary to Defendant's argument, the Supreme Court has never held that notice of an indictment is mandatory for a valid waiver. See Patterson, 487 U.S. at 295 n.8 ("we do not address the question whether or not an accused must be told that he has been indicted before a postindictment Sixth Amendment waiver will be valid."). In addition to Patterson, Defendant relies upon United States v. Mohabir, 624 F.2d 1140, 1153 (2nd Cir. 1980), which required that an indicted defendant be advised of the indictment and his right to counsel by a judicial officer before a waiver of that right will be considered valid. In dicta, the Supreme Court directly rejected that standard. Patterson, 487 U.S. at 295 n.8. Additionally, the Ninth Circuit considered the Second Circuit's approach and chose not to adopt it. See United States v. Karr, 742 F.2d 493, 496 (9th Cir. 1984).

Defendant also cites United States v. Payton, 615 F.2d 922 (1st Cir. 1980), to support his argument that a waiver of a post-indictment defendant's right to counsel is invalid if he has not been informed of the charges against him. Payton is actually the case most closely aligned to the present facts. In Payton, after the defendant waived his rights and agreed to talk, but before making any incriminating statements, he was informed that he had been indicted for bank robbery. Id. at 923-24. Here, prior to making any incriminating statements, Defendant was advised that he had been charged with smuggling firearms and that he was being taken to court on those charges. Under those circumstances, the First Circuit found the waiver valid because the defendant "was afforded sufficient information to enable him to make an intelligent waiver of his rights." Id. at 924. The court also noted that the defendant knew his rights and understood how to exercise them because he advised he would terminate the interview if he found the questioning to be too specific. Id. Similarly, Defendant Rabago declined to identify certain individuals during his interview, signaling that he understood his rights (including the right to refuse to answer specific questions). (Ex. 2.) He was informed of the charges close in time to the waiver and could have withdrawn his waiver if notice of the charges changed his decision about answering questions. Under this law, relied upon by Defendant, his waiver was valid.

Similarly, a review of Ninth Circuit law confirms the validity of his waiver. In 1984, the Ninth Circuit examined whether Miranda warnings were sufficient to inform an indicted defendant of his right to counsel such that his waiver of that right would be considered intelligent. See United States v. Karr, 742 F.2d 493, 495 (9th Cir. 1984). After examining the various circuit approaches to the question, the court affirmed its prior decisions which found that Miranda warnings were sufficient. Id. at 496. The court held that "[a] defendant who has been adequately informed of his right to counsel and of the fact that formal judicial proceedings have begun against him may validly waive his Sixth Amendment right to counsel." Id. Contrary to Defendant's argument, the Ninth Circuit did not adopt what it referred to as an "intermediate" approach, in which some courts required both Miranda warnings and notice of the indictment. Id. In Karr, however, the defendant was aware that he had been indicted prior to waiving his right to counsel. Id. at 495. Subsequent to Karr, the Ninth Circuit found a waiver valid because the defendant was apprised of "the nature of the crime for which he was being arrested and the gravity of his situation." See Norman v. Ducharme, 871 F.2d 1483, 1487 (9th Cir. 1989) (finding it irrelevant whether defendant knew an information had been filed). In an unpublished case, the Ninth Circuit interpreted Norman as "disavowing" a requirement that a defendant must be informed of an indictment for a valid waiver. Miller v. Baldwin, 723 F. App'x 408, 413 (9th Cir. 2018) (applying a contextual inquiry and finding waiver valid because defendant appreciated the gravity of the situation and implications of talking to the detective, although he was unaware of the indictment).

Here, Defendant knew he had a pending warrant, and he knew that federal agents wanted to question him and were taking him for a court appearance. Thus, he was apprised that judicial proceedings had been initiated against him; which is the same information notice of an indictment would have provided. Although not addressed at the hearing, Defendant stated during the interrogation that Jahudiel Avila-Navarro (a co-defendant) was his brother, and he was aware that he had been arrested (on January 29, 2019) for trying to take weapons to Mexico. (Exs. 1, 2.) Defendant had provided his brother some of the weapons for which he was arrested and the agents questioning him were from the ATF. Therefore, he could have surmised, prior to waiving his right to counsel, that his arrest was connected to the crimes charged against his brother. Considering all of the circumstances, prior to the waiver, Defendant had sufficient information to understand the gravity of the situation. He had been informed and was aware of his right to request the presence of counsel during the questioning and of the consequences of waiving that right. That is all that is required for a knowing and intelligent waiver and it was satisfied in this case. Additionally, Defendant was notified of the charges against him within minutes of waiving his rights and prior to making any incriminating statements or being asked any questions likely to elicit incriminating information. Because Defendant knew the charges for which he was due in court, prior to incriminating himself, he had all the necessary information to make an intelligent waiver prior to interrogation. See Rhode Island v. Innis, 446 U.S. 291, 303 (1980) (defining interrogation as action by law enforcement that "they should have known were reasonably likely to elicit an incriminating response.")

III. RECOMMENDATION

It is recommended that, after its independent review of the record, the District Court deny Defendant's Motion to Suppress Statements. (Doc. 127).

Pursuant to Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file written objections within 14 days of being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived.