United States District Court, D. North Dakota
REPORT AND RECOMMENDATION ON MOTION TO
R. SENECHAL UNITED STATES MAGISTRATE JUDGE.
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,
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.
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.
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).
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; and (4) HSI Agent Jeremy
Grube, the case agent, who was present in Montreal and
observed Corporal Turcot's interview of Um.
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).
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
Ceron's Sworn Statement
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.
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.
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.
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.
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.
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
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.”
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
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.
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.” (Doc. 93, p. 1).
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.
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]
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.
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.
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.
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.
Law Enforcement Agents' Testimony
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,  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
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.
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.