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United States v. Castillo Juarez

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

April 4, 2019

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

          ORDER

          MARK H. COHEN United States District Judge.

         This action comes before the Court on the Final Report and Recommendation ("R&R") of Magistrate Judge Catherine M. Salinas [Doc. 323] recommending that the following motions be denied: Valenzuela's Preliminary Motion to Suppress Statements [Doc. 175]; Valenzuela's Preliminary Motion to Suppress Evidence [Doc. 176]; Castillo's Initial Motion to Suppress [Doc. 183]; and Defendants' Motions to Exclude "Photo Show-Up" and In-Court Eyewitness Identification [Docs. 187 & 223]. The Order for Service of the R&R [Doc. 324] provided notice that, in accordance with 28 U.S.C. § 636(b)(1), the parties were authorized to file objections within fourteen (14) days of the receipt of that Order.

         On January 11, 2019, Defendants filed their "Joint Objections" to the R&R [Doc. 344] ("Defs.' Objs."). However, Castillo previously asked for an additional thirty (30) days in which to file his own objections to the R&R, and joined Valenzuela's objections "in an abundance of caution." Id. at 1 n.l. The Court granted Castillo and additional period of time, to and through February 25, 2019, in order to file any separate objections [Doc. 345]. However, no additional objections were filed by Castillo, so the Court considers the objections to be jointly raised.

         I. LEGAL STANDARD

         In reviewing a Magistrate Judge's R&R, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). "Parties filing objections to a magistrate's report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court." United States v. Schultz, 565 F.3d 1353, 1361 (11th Cir. 2009) (quoting Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)). If there are no specific objections to factual findings made by the Magistrate Judge, there is no requirement that those findings be reviewed de novo. Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993) (citations omitted). Absent objection, the district court judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge," 28 U.S.C. § 636(b)(1), and may accept the recommendation if it is not clearly erroneous or contrary to the law. Fed. R. Crim. P. 59(a). In accordance with 28 U.S.C. § 636(b)(1) and Rule 59 of the Federal Rules of Criminal Procedure, the Court has conducted a de novo review of those portions of the R&R to which Defendant objects and has reviewed the remainder of the R&R for plain error. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).

         II. DISCUSSION

         A. Motions to Suppress Statements and Evidence Taken in Switzerland

         It is undisputed that at the time of their arrests by Swiss authorities in August 2016 on attempted trafficking of cocaine, Defendants were citizens and residents of Guatemala and had no attachment to the United States. Defendants contend that they nevertheless have standing to object to the search, seizure, and taking of statements by Swiss authorities because agents of the United States "were substantially involved so as to convert the seizure and search into a joint United States/Switzerland law enforcement venture." Defs.' Objs. at 3. The Magistrate Judge concluded that: (1) because the Fourth Amendment does not apply to searches conducted outside the United States where the person has no significant connection to the United States, Defendants have no standing under the Fourth Amendment to challenge the admission of evidence gathered by Swiss law enforcement officers after their arrest in Switzerland; (2) even if Defendants had standing to challenge the evidence seized by Swiss authorities, the Fourth Amendment's exclusionary rule would not apply to the arrests and searches made by Swiss law enforcement officers in Switzerland; and (3) Defendants have made no showing that the facts in this case shock the conscience or that the United States and Switzerland participated in a "joint venture," such that a Fourth Amendment challenge would lie. R&Rat8-10.

         In their objections, Defendants maintain they have standing to challenge the search and seizure undertaken by Swiss authorities because "[i]t is hard to believe" that those authorities were not acting "jointly with and under the direction of United States Homeland Security ("HSI") agents. Defs.' Objs. at 3-4. Defendants also complain that the Magistrate Judge improperly denied them an evidentiary hearing on their motions to suppress. Id. at 2.

         The Supreme Court has held that the Fourth Amendment does not apply to searches of a nonresident alien conducted outside the United States where the person has no voluntary attachment to the United States. United States v. Verdugo-Urquidez, 494 U.S. 259. 274-275 (1990). See also United States v. Rosenthal, 793 F.2d 1214, 1230-1231 (11th Cir. 1986) ("Evidence obtained by foreign police officers from searches carried out in their own countries is generally admissible in American courts regardless of whether the search complied with the Fourth Amendment.")- Consequently, the Magistrate Judge's determination that Defendants have no standing to challenge the search and seizure of evidence by Swiss authorities in Zurich, Switzerland is correct.

         There are two exceptions recognized by the Eleventh Circuit where this Court could apply the Fourth Amendment exclusionary rule to foreign searches: "(1) if the foreign officers' conduct shocks the conscience of the American court and (2) if American officials participated in the foreign interrogation, or if the foreign authorities were acting as agents for their American counterparts, also known as the joint venture doctrine." United States v. Frank, 599 F.3d 1221, 1228-1229 (11th Cir. 2010) (internal punctuation and citations omitted). The first "exception is based on a federal court's inherent supervisory powers over the administration of federal justice." United States v. Emmanuel 565 F.3d 1324, 1330 (11th Cir. 2009) (internal quotation and citations omitted). The second exception "is based on a defendant's Fourth Amendment rights." Id.

         Defendants contend that both exceptions apply. Defs.' Objs. at 3-5. First, Defendants summarily conclude that "[i]t shocks the conscience to subject foreign nationals to extreme punishments for alleged violations of U.S. drug laws" which is akin to "taxation without representation." Id. at 5. However, in this case, it is undisputed that, when Defendants arrived at the Zurich airport, Swiss police officials determined that Defendants were carrying narcotics inside their bodies based upon field interviews and a body scan, and that Defendants later passed "approximately fifty (50) capsules each that was field tested positive for cocaine." HSI Report of Investigation [Doc. 188-2]. This Court agrees with the Magistrate Judge that "there is nothing shocking about Swiss officials arresting narcotics traffickers carrying cocaine in their bodies" or "examin[ing] people in the airport for narcotics." R&R at 9.

         Second, Defendants assert that HSI agents "were substantially involved" in the search and seizure by Swiss officials based solely upon an email that was sent by a HSI special agent to the Swiss police alerting them to the fact that Defendants would be arriving that day at the Zurich airport and might be carrying cocaine. Defs.' Objs. at 3-4. Although there is some evidence to indicate that Swiss officials never received this email "tip" because it got caught in a spam email box, see HSI Report of Investigation, the tip, even if received, would not constitute American officials becoming "substantial participants" in the search or that the Swiss authorities were "acting as agents" of the HSI. Rosenthal, 793 F.2d at 1231; see also United States v. Behety, 32 F.3d 503, 511 (11th Cir. 1994) ("Agent Von Bresen's communication to Guatemalan authorities regarding [the defendants' arrival on a yacht] and plans to export cocaine is insufficient to bring the search within the [joint venture] exception."); United States v. Hawkins, 661 F.2d 436, 455-56 (5th Cir. 1981) (finding that DEA's notice to Panamanian authorities regarding the suspected crash of an airplane carrying cocaine is insufficient to trigger Fourth Amendment protections); United States v. Heller, 625 F.2d 594, 599-600 (5th Cir. 1980)[1] (finding that a tip from United States officials to British police regarding the defendant was "peripheral at most" to the defendant's arrest and search); United States v. Morrow, 537 F.2d 120, 140 (5th Cir. 1976) ("Normal lines of communication between the law enforcement agencies of different countries are beneficial without question and are to be encouraged. Criminal conspiracies, as this case amply demonstrates, are sometimes international in scope, and the routine transmittal of the name and telephone number of a possibly valuable informant across national borders clearly is permissible under the fourth amendment.").

         Consequently, Defendants' objections to the Magistrate Judge's recommendation regarding the requested suppression of statements and evidence ...


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