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United States v. Castillo Juarez

United States District Court, N.D. Georgia, Atlanta Division

January 11, 2019

UNITED STATES OF AMERICA
v.
HERBERT JONATHAN CASTILLO JUAREZ and PAOLA VALENZUELA AREVALO, Defendants.

          ORDER AND FINAL REPORT AND RECOMMENDATION

          CATHERINE M. SALINAS, UNITED STATES MAGISTRATE JUDGE.

         This criminal case is before the Court on several motions filed by two of the defendants, Herbert Jonathan Castillo Juarez (“Castillo”) and Paola Valenzuela Arevalo (“Valenzuela”), a married couple.

         On September 21, 2016, a grand jury sitting in the Northern District of Georgia returned an eight-count indictment against Castillo, Valenzuela, and others alleging heroin-related crimes, including conspiracy to import heroin from Guatemala. [Doc. 12]. Thereafter, the indictment was superseded twice. [Docs. 49, 93].[1] In the second superseding indictment, Castillo and Valenzuela (collectively, “Defendants”) are charged in each count. Specifically, they are charged with being part of a nine-year-long conspiracy to possess with intent to distribute heroin (Count One) and a conspiracy to import heroin from Guatemala (Count Two). [Doc. 93]. They are also charged with importing heroin and possessing heroin with intent to distribute on three dates during the summer of 2016 (Counts Three through Eight). [Id.].

         Defendants have filed motions to suppress statements and evidence related to their arrest in Switzerland [Docs. 175, 176, 183] and motions to suppress photograph identification testimony. [Docs. 187, 223]. I will address these motions in turn.

         I. Motions to Suppress Statements and Evidence Regarding Events that Occurred in Switzerland [Docs. 175, 176, 183]

         A. Background[2]

         In August 2016, United States Homeland Security (“HSI”) suspected that Defendants were involved in a conspiracy to send people from Guatemala to the United States with heroin in their luggage or inside their bodies. Castillo had been identified by a person who had traveled from Guatemala to Atlanta and been discovered with heroin-filled pellets inside his body. At the direction of U.S. law enforcement agents, the swallower had corresponded with Castillo and learned that Defendants would be traveling by plane from Mexico City, Mexico to Zurich, Switzerland in mid-August 2016 for the purpose of transporting illegal drugs.

         On August 18, 2016, HSI Special Agent Lorenzo D'Andrea sent an email to the Swiss federal police alerting them to the fact that Defendants would be arriving later that day at the Zurich airport and that Defendants might be carrying cocaine, either in luggage or inside their bodies. Special Agent Lorenzo stated: “HSI Attache Rome respectfully request to have [Castillo and Valenzuela] and their personal property examined for narcotics.” [Doc. 188-1 at 2].

         As scheduled, Defendants arrived in Zurich on August 18, 2016, at which point Zurich Cantonal Police determined that Defendants were carrying narcotics inside their bodies, based on both field interviews and body scans.[3] The Swiss officials advised HSI that Castillo and Valenzuela each later passed approximately fifty capsules filled with cocaine. Defendants were arrested by Swiss law enforcement and were charged with attempted trafficking of cocaine.

         One month later, on September 21, 2016, Defendants were indicted in federal court in Atlanta, Georgia. At that time, Defendants were still in Swiss custody. [Doc. 12].

         Defendants were convicted in the Swiss courts of drug offenses and served criminal sentences. After completing their sentences in Switzerland, Defendants were extradited to the United States. On June 21, 2017, the United States Marshal Service took custody of Defendants from the Swiss authorities, along with the electronic devices that were seized from Defendants when they were originally arrested. Upon arriving in the United States, HSI agents searched the devices (pursuant to a warrant) and sent a request for information to the Swiss authorities pursuant to the Treaty on Mutual Legal Assistance in Criminal Matters (“MLAT”). Several months later, the Swiss authorities provided the U.S. authorities with information concerning Defendants, including certain statements that Defendants made to Swiss authorities. According to the Government, U.S. law enforcement agents were not involved in obtaining the statements and did not know of their existence until Switzerland provided the MLAT response. The Government states that the MLAT information reflects that each statement was made in the presence of Defendants' Swiss defense counsel.

         In their motions to suppress evidence and statements, Defendants argue that their arrests violated the Fourth Amendment of the U.S. Constitution, and therefore any statements made while they were in custody and any items seized at the time of their arrests-including their electronic devices-should be excluded as “fruit of the poisonous tree.” [Doc. 175 at 3; Doc. 176 at 2; Doc. 183 at 2-4]. Valenzuela also argues that any statements she may have made in Switzerland should be suppressed because the statements were not freely and voluntarily made and because she did not knowingly or voluntarily waive her Miranda rights. [Doc. 175 at 2-3].[4]

         In response, the Government argues that Defendants' motion should be denied for several independent reasons. According to the Government, Defendants lack standing to make any Fourth Amendment challenge to the admission of any evidence obtained in connection with their arrest in Switzerland because they are Guatemalan nationals who were searched on foreign soil. [Doc. 272 at 3-4]. The Government also argues that the Fourth Amendment does not apply because Swiss authorities (rather than U.S. authorities) made the arrests, obtained the statements, and seized the items. [Id. at 5-9]. With respect to Valenzuela's argument about the voluntariness of her statements, the Government argues that each statement at issue was made in the presence of counsel and that prior to each interview, Swiss officials advised Defendants of their rights under Swiss law, giving them substantially similar admonitions as ones received under Miranda. [Id. at 13]. The Government argues further that that even if counsel had not been present, the statements would still be admissible because Miranda warnings are not required unless there was a joint venture between the law enforcement officers in Switzerland and the United States, and in this case, there was no such joint venture. [Id. at 10-13].

         In reply, Defendants argue that because HSI agents sent the email to the Swiss federal police requesting that Defendants be examined for narcotics, there was a joint venture between the two countries and, alternatively, that introduction of this evidence “shocks the judicial conscience.” [Doc. 287 at 2-4]. Valenzuela also urges the Court to hold a Jackson v. Denno hearing to determine whether her statements were voluntary. [Id. at 5-7].

         B. Legal Standard

         With respect to standing, the Supreme Court has held that the Fourth Amendment does not apply to searches conducted outside the United States where the person searched does not have a previous significant voluntary connection to the United States. United States v. Verdugo-Urquidez, 494 U.S. 259, 272-73, 275 (1990). The Supreme Court reasoned that because the Fourth Amendment is expressly limited to “the people, ” it refers only “to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community” and that the Fourth Amendment was not designed to restrain the actions of the federal government against aliens outside of the United States territory. Id. at 265-66, 272-73.

         Moreover, it is well settled that the Fourth Amendment exclusionary rule does not apply to searches and seizures conducted by foreign officials in a foreign country:

The general rule is that evidence obtained from searches carried out by foreign officials in their own countries is admissible in United States courts, even if the search would not otherwise comply with United States law or the law of the foreign country. But this Circuit has recognized two narrow exceptions to this rule. The first exception is that evidence from foreign searches is inadmissible if the conduct of the foreign officials during the search shocks the judicial conscience. This exception is based on a federal court's inherent supervisory powers over the administration of federal justice. The second exception is that evidence from foreign searches is subject to the exclusionary rule if American law enforcement officials substantially participated in the search or if the foreign officials conducting the search were actually acting as agents for their American counterparts.

United States v. Emmanuel, 565 F.3d 1324, 1330 (11th Cir. 2009) (internal citations and quotation marks omitted). Similarly, statements obtained by foreign officers conducting interrogations in their own nations are admissible despite a failure to give Miranda warnings to the accused, unless one of the two exceptions noted above applies. See United States v. Heller, 625 F.2d 594, 599 (5th Cir.1980).

         C. Discussion

         Here, the facts of this case fall squarely within the caselaw cited above. Defendants have not disputed that at the time of their arrests, they were both citizens and residents of Guatemala, and they have presented no evidence that they had any voluntary attachment to the United States. As such, they do not have standing to assert a constitutional challenge to the ...


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