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United States v. Ramos-Burciaga

United States District Court, D. New Mexico

May 15, 2019

UNITED STATES OF AMERICA Plaintiff,
v.
DULCE ISABEL RAMOS-BURCIAGA, Defendant.

          MEMORANDUM OPINION AND ORDER MAKING SUPPLEMENTAL FINDINGS ON SPECIAL AGENT PERRY'S CREDIBILITY AT REOPENED SUPPRESSION HEARING

          WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on a reopened suppression hearing, to give the Defendant a further opportunity to cross-examine Special Agent Jarrell Perry and address his credibility. Considering the evidence at both suppression hearings, the transcripts, and the written argument of counsel, the Court continues to find SA Perry's testimony to be credible, and the Motion to Suppress (Doc. 58) remains DENIED.

         BACKGROUND

         The extensive history of this case is detailed most recently in the Government's Motion to Reconsider reopening the suppression hearing (Doc. 100), and the Court's order denying the Government's motion to reconsider (Doc. 105). Although the Court denied the Government's motion to reconsider reopening the suppression hearing, the Court agrees with the Government's lengthy recitation of the procedural history of this case. The Court will not repeat it here. See Doc. 100, p. 1-16.

         In short, this matter arises out of disputes over SA Perry's testimony at a suppression hearing and the production in discovery of a passenger list. SA Perry testified at the August 2018 suppression hearing that he had consulted a passenger list given to him by a confidential informant prior to his encounter with Defendant. This list had not been produced by the Government in discovery. The Court denied Defendant's Motion to Suppress (Doc. 58), concluding that Defendant's encounter with SA Perry was voluntary and consensual, and she was not unlawfully seized. Doc. 87. In making that determination, the Court found that SA Perry's testimony was credible. Doc. 87, p. 4. The Court subsequently granted Defendant's motion to reopen the suppression hearing. Doc. 92. The Court held a limited reopened suppression hearing to allow Defendant (1) to cross-examine SA Perry about how he used the passenger list in his investigation and (2) to cross-examine SA Perry about his role in the production of the passenger list. Doc. 105.

         DISCUSSION

         I. SA Perry's statements at the two suppression hearings were consistent.

         Defendant admits that SA Perry's testimony was largely “truthful and accurate” but argues that SA Perry's testimony is “riddled” by material omissions which undermines his credibility. The Court disagrees. None of the alleged omissions negatively impact his credibility. Rather, the alleged omissions or inconsistencies in his testimony are largely a product of different and more in-depth questioning at the reopened suppression hearing. This is to be expected, as at the August 2018 suppression hearing, Defendant did not have the passenger list in her possession and did not extensively question SA Perry about the passenger list.

         Defendant also argues that SA Perry intentionally omitted from the first suppression hearing that the confidential informant made handwritten annotations on the passenger list. But nothing in the first suppression hearing would have prompted SA Perry to state that there were handwritten annotations. SA Perry was asked what he obtained from the confidential informant. He said he obtained the passenger list. SA Perry was not asked questions about what the list contained.

         Moreover, Defendant argues that SA Perry hid the existence of the passenger list or disobeyed a Court order. As explained below, the Court disagrees. The Government has already extensively explained in detail why the failure to produce the passenger list was a mistake, and not intentional. Doc. 100. The Court found that explanation persuasive. Doc. 105. Additionally, the Court gave Defendant the opportunity to question SA Perry about the production of the passenger list. The Court finds his testimony credible that he did not possess the passenger list and did not hide the existence of the passenger list from the Government. In other words, the Court finds no misconduct on either SA Perry's or the Government's part.[1]

         Therefore, the Court finds SA Perry's testimony at both suppression hearings to be credible, and no alleged omissions negatively affect his credibility.

         II. SA Perry was consistent in his testimony that he did not know who Defendant was prior to asking her name.

         Defendant also argues that SA Perry lied at the August 2018 suppression hearing when he said he did not know who Defendant was prior to approaching her and asking her name. At the August 2018 suppression hearing, SA Perry stated “until I asked her for her ticket and her identification, I had no idea what her name was.” Doc. 80, p. 39. Defendant argues that SA Perry knew who she was either based on the passenger list or a prior, undisclosed investigation, and the encounter was not random. As explained below, the Court disagrees.

         SA Perry testified that he looks at passenger lists and examines several factors that may be consistent with drug trafficking, including whether passengers checked a bag, whether they paid in cash, approximately when they bought their ticket, whether they had their ticket reissued, where they're coming from, and where they're going. Based on those factors, he knows that he may wish to speak with certain passengers. Based on his examination of the passenger list, he wanted to speak with Defendant. However, there is nothing in ...


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