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United States v. Ceron

United States District Court, D. North Dakota

May 20, 2019

United States of America, Plaintiff,
v.
Daniel Vivas Ceron, Defendant.

          REPORT AND RECOMMENDATION ON MOTION TO SUPPRESS

          ALICE R. SENECHAL UNITED STATES MAGISTRATE JUDGE.

         Daniel Vivas Ceron moves to suppress statements he made to law enforcement agents on July 17, 2015, contending his statements were not voluntary within the meaning of Miranda v. Arizona, 384 U.S. 436 (1966). At the request of the presiding judge, this court held an evidentiary hearing on Ceron's motion on April 16, 2019.[1]

         Ceron is charged with conspiracy to distribute fentanyl resulting in serious injuries to multiple people, and resulting in multiple deaths. The criminal activity is alleged to have occurred while Ceron was serving a sentence at a Canadian prison. After he had completed the Canadian criminal sentence, Ceron was to be deported from Canada to his native country-Colombia. On July 17, 2015, Canadian officers escorted Ceron on a commercial flight originating from Montreal, Quebec, Canada, which Ceron understood was bound for Bogotá, Colombia.

         But, in the months prior to July 2015, agents of the United States Department of Homeland Security-Homeland Security Investigations (HSI) made arrangements with law enforcement agencies in Canada and Panama, so that Ceron would be transferred to Panamanian custody when the plane had a layover at Tocumen International Airport (TIA), in Panama City, Panama. During the layover, Canadian officers escorted Ceron off the plane and into the airport terminal. Inside the terminal, Panamanian police officers took custody of Ceron pursuant to a provisional arrest warrant based on the Indictment in this case.

         After he was transferred to Panamanian custody, Ceron was taken to a secure room in the airport terminal where he was questioned by an agent of the United States Drug Enforcement Agency (DEA) and an agent of HSI. Ceron's motion asserts his statements to those agents were not made voluntarily, contending he was “coerced, threatened and intimidated into waiving his rights and speaking with agents.” (Doc. 63, p. 2).

         At the suppression hearing, the United States presented testimony of four law enforcement agents: (1) DEA Agent Michael Buemi, who interrogated Ceron at TIA; (2) HSI Agent Brian Black, who was present in the room throughout Agent Buemi's interrogation of Ceron and who took notes and prepared a report of the interrogation; (3) Corporal Dany Turcot of the Royal Canadian Mounted Police (RCMP), who questioned Ceron's girlfriend-Marie Um-in Montreal at the same time Ceron was being interrogated at TIA[2]; and (4) HSI Agent Jeremy Grube, the case agent, who was present in Montreal and observed Corporal Turcot's interview of Um.

         Several documents were received in evidence at the hearing-two Advice of Rights forms, (Doc. 90-1), and two reports prepared by Agent Black, (Doc. 90-2; Doc. 90-3). Following the hearing, the parties stipulated to admission of additional documents: a recording and transcript of a portion of a phone call that took place during the course of the interrogation, emails and reports concerning the recording of that phone call, and post-hearing emails from agents of the Canadian Border Services Agency (CBSA). (Doc. 90-4 to -7).

         Subsequent to the suppression hearing, Ceron filed two pro se motions. One is captioned Request to Subpoena Witness and Evidence on My Behalf for Motion to Suppress Statement, (Doc. 93) (spelling and capitalization altered), and the other is captioned Motion to Sup[p]ress Statement Request for Court to Intervene, (Doc. 94). To the extent the pro se motions assert Ceron's interpretation of the evidence, the pro se motions are incorporated into the Law and Discussion section below.

         Summary of Evidence

         1. Ceron's Sworn Statement

         In connection with an earlier motion to dismiss the Indictment, Ceron submitted a lengthy sworn statement. (Doc. 60-1). The following is a summary of that portion of the sworn statement which pertains to the issues presented in this motion.

         Ceron states it was “clear in [his] mind” that he “best never set foot in Panama” because of his previous experience with the Panamanian criminal justice system. Id. at 5. He states that, prior to July 17, 2015, Canadian immigration officials and his Canadian parole officer repeatedly told him the flight path for his deportation would be direct from Montreal to Bogotá, and that he would arrive in Bogotá at 3:20 p.m. local time the same day. Id. at 9, 13. He also states he was told there were no foreign warrants on file for him. Id. at 10.

         CBSA agents escorted Ceron on the flight. According to his statement, after the plane departed Montreal, one of the CBSA agents told Ceron the plane would be landing at TIA but the stop was only for refueling. Id. at 16. Ceron states that, after the plane landed at TIA and the other passengers had exited the plane, one of the CBSA agents told him he needed to exit the plane because Panamanian police “wanted to have a word with [him]” in regard to the reason for his deportation from Canada. Id.

         As to whether he cooperated in exiting the plane and walking into the TIA terminal, Ceron's statement is somewhat contradictory: he implies he did not physically resist the agents' directions, id. at 17, but also refers to being forced off the plane, id. at 110. He states he had a well-founded fear of being in Panama because of his past experience in that country. Id. at 14-15. He asserts he was transported on a commercial flight, rather than a government plane, because the presence of civilian passengers would act as a “human shield” to persuade him not to fight getting off the plane in Panama. Id. at 139.

         Ceron describes that, after he was escorted inside the TIA terminal, he was taken to a room which was “immediately” filled with thirteen to fourteen people. Id. at 18. In his sworn statement, Ceron included a drawing of the layout of the room where he was taken, which identified positions of the various law enforcement agents inside the room. He states the Panamanian police officers in the room were armed with guns and wooden batons, held “as if they [were] ready to beat [him].” Id. He states he was never formally arrested. Id. at 19.

         Ceron states Agents Buemi and Black introduced themselves but the other law enforcement agents did not do so. Id. at 19. Ceron states only Agents Buemi and Black spoke to him and they spoke to him only in English. Id. Further, Ceron wrote the agents told him they “had people” standing by his mother at the Bogotá airport, had his girlfriend in a room in Canada, and had people standing by his girlfriend's family. Id. at 20. He states he was told that, if he did not plead guilty to “whatever [the agents] say, ” his family would suffer severe physical harm or death. Id. Ceron describes his perception of the body language of the various law enforcement officers as a “hostage taking situation” in which he was to trade his life and freedom for the safety and lives of his family. Id. at 21. He states Agent Buemi showed him a video of Um, sitting in a room, in a “hostage taking situation.” Id.

         Ceron states he told Agent Buemi, “Okay, I'm guilty of what ever you say, just don't hurt my family, ” and after he said that, everyone in the room relaxed and the Panamanian police officers lowered their “sticks to the ground.” Id. at 22. Ceron states, “the entire torture, hostage taking negotiation lasted 10 minutes I'm pretty sure, every thing went fast.” Id. at 28. Although not clear from the statement, it appears Ceron's reference to the “hostage taking negotiation last[ing] ten minutes” refers to the time between entering the secure room and his statement that he was “guilty of what ever you say.”

         Ceron's statement implies it was not until after he said he was “guilty of what ever you say” that Agent Black gave him a “waiver type form” and told him to sign it, id. at 26, though later in his statement Ceron states his rights were never read to him, id. at 214. He states that he did not read all of the form at the time. Ceron states he signed the form because he was still under the threat of harm to his family, “but a small note in French gave understanding on which grounds” he signed the form. Id. at 26. The meaning of his reference to a “small note in French” is not clear; there is no note in the French language on the form Ceron signed.

         According to Ceron's statement, as Agent Buemi began to question him, Canadian officials removed their handcuffs from him, and Agent Buemi put his handcuffs on him. Id. at 23. He describes that, after the handcuff exchange, he was brought to a second room and seated in a chair in the middle of that room. He describes the second room as dark, with the only light coming from a large window, but describes it as being “bright outside.” Id. at 24.

         Ceron describes requesting, and the agents arranging, a phone call between Ceron and Um. Id. He states that soon after he asked the agents if he could speak with Um, Agent Buemi passed his phone to him and Um was on the line. He states he told Um he would “make [him]self guilty” so she would not be hurt. Id. Ceron describes only Agent Buemi being in the room while he spoke with Um. Id. In the first pro se motion, Ceron refers to a recording of his conversation with Um having been “retouch[ed] and cut.”[3] (Doc. 93, p. 1).

         Ceron states that, at some point during the interrogation, a Canadian man came into the room, Agent Buemi asked Ceron if he wanted to speak with a lawyer, and Agent Buemi told Ceron the Canadian man was a lawyer. (Doc. 60-1, p. 24). Ceron states that, though he did not realize it at the time, he later realized the man Agent Buemi said was a lawyer was actually a Canadian police officer who had been involved in Ceron's Canadian criminal case and who was present at TIA to identify Ceron. Id. at 25.

         The same day Ceron was interrogated at TIA, his mother, Maria Elena Ceron Escobar, was interviewed at the Bogotá airport by U.S. law enforcement agents. Id. at 52. In his sworn statement, Ceron states his mother has told him two individuals who identified themselves as United States agents approached her at the Bogotá airport, told her he had been arrested in Panama for U.S. drug charges, and questioned her about “money and crim[inal] activity.” Id.

         Ceron states the “U.S. embassy was typing really fast” on a smart phone during the interrogation and a couple of Panamanian police officers may have also had smart phones. Id. at 21. He states there were “videos, notes, U.S. Embassy communiques, or recordings” of the July 17, 2015 events at TIA. Id. at 26.

         Ceron states he asked the DEA and HSI agents if they were coming for him soon and was told it would be two weeks, which “actually became 18 months.” Id. at 30. After the interrogation was completed, Ceron describes the Panamanian police grabbing him and taking him out of the TIA terminal. Id. at 29. Ceron describes the Panamanian police officers having “pull[ed] on [his personal] property like crabs on dead fish.” Id.

         Ceron was transported from Panama to the United States in January, 2017. Id. at 56. In his sworn statement he states it was not until the date he was transported to this country that he was “registered to be in Panama by customs” and that his passport was never stamped to indicate he had entered Panama on July 17, 2015. Id. at 57.

         The rest of Ceron's sworn statement describes the conditions in the Panamanian jail in which he was held, his appearances in Panamanian courts in connection with his extradition, and his position that the process of his extradition did not comport with international law.

         2. Law Enforcement Agents' Testimony

         Agents Black, Buemi, and Grube testified that HSI, through its Panama Transnational Criminal Investigative Unit, coordinated advance arrangements for Ceron's interrogation in Panama. Agent Black testified coordination meetings in the months prior to July 2015 involved HSI, DEA, RCMP, and Panamanian authorities. All three U.S. agents testified they were told during the coordination meetings that Panamanian law prohibited recording of the interrogation. Agent Grube testified they were advised Article 29 of Panama's constitution prohibited recording, [4] unless a search warrant was obtained prior to an arrest. The agents also testified that, when advance arrangements were made, Panamanian authorities advised they generally did not work after 5:00 p.m. on Fridays.

         Agent Black testified he and other agents traditionally did not “fly armed” to any foreign country, and both he and Agent Buemi testified they had no firearms with them while in Panama. Agent Grube testified he was told that agents could bring firearms to Panama if they came on a government plane and if the firearms were secured while they were in Panama, but that agents absolutely could not have firearms with them outside the airplane.

         Agents Black and Buemi both testified that they were waiting for Ceron at a passenger gate in the TIA terminal and that Ceron was the last passenger to exit the plane. Both testified that Ceron's transfer from Canadian to Panamanian custody was marked by the Canadian officers removing their handcuffs from him and the Panamanian police officers placing their handcuffs on him, in the front. Agent Black's supplemental report states three Panamanian police officers were present during Ceron's arrest and none of them wore firearms in the TIA terminal. (Doc. 90-3, p. 2). Agent Black testified there was a photograph taken of Ceron soon after he exited the plane, but there are no photographs in evidence.

         A. ...


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