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United States v. Gualtero

United States District Court, E.D. Virginia, Alexandria Division

November 24, 2014

UNITED STATES OF AMERICA,
v.
OMAR FABIAN VALDES GUALTERO, Defendant

For Omar Fabian Valdes Gualtero, also known as Gordo, Defendant: Donald Edwin Harris, LEAD ATTORNEY, Harris Law Firm, Alexandria, VA; Jonathan Ashley Simms, The Simms Firm PLC, Fairfax, VA.

For USA, Plaintiff: Michael Ben'Ary, Stacey K. Luck, LEAD ATTORNEYS, U.S. Attorney's Office (Alexandria-NA), Alexandria, VA.

Page 480

MEMORANDUM OPINION AND ORDER

Gerald Bruce Lee, United States District Judge.

This matter is before the Court on Defendant Omar Fabian Valdes Gualtero's Motion to Suppress Statements (" Motion to Suppress" ) (Doc. 106). On July 18, 2013, a federal grand jury returned an indictment charging Defendant Gualtero and five of his co-defendants with (1) murder of an internationally protected person and aiding and abetting that murder in violation of 18 U.S.C. § § 2, 1116(a), (c); (2) conspiracy to kidnap an internationally protected person in violation of 18 U.S.C. § 1201(c); and (3) kidnapping an internationally protected person and aiding and abetting that kidnapping in violation of 18 U.S.C. § § 2, 1201. A seventh co-defendant was charged with obstructing an official proceeding in violation of 18 U.S.C. § 1512(c). See Doc. 15.

Defendant moves to suppress his pre-arrest and post-arrest statements because he alleges his statements were made involuntarily, without a knowing and intelligent

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waiver of his Miranda rights, and because the United States law enforcement officials failed to create a contemporaneous video or tape recording of his statements when recording equipment was easily accessible to them (Doc. 106).

The first issue before the Court is whether Defendant made a knowing, voluntary and intelligent waiver of his Miranda rights where he signed the Spanish language Miranda rights waiver forms. The second issue is whether Defendant's constitutional rights were violated when the United States law enforcement agents failed to record Defendant's pre-arrest and post-arrest statements.

The Court denies Defendant's Motion to Suppress because the Government has demonstrated, by a preponderance of evidence, that Defendant's post-arrest statements were made voluntarily, after a knowing and intelligent waiver of his Miranda rights which is demonstrated by testimony and by Defendant's signature at the bottom of the waiver forms. Additionally, Defendant's constitutional rights were not violated when the United States law enforcement agents failed to make a contemporaneously recording of his pre-arrest and post-arrest statements because a video or tape recording of Defendant's interrogation and statements is not constitutionally required.

I. Background[1]

The indictment alleges the following: Defendant along with five of his co-defendants were involved in a scheme to commit " millionaire's rides" in Bogotaá, Colombia. On June 20, 2013, defendants targeted DEA Special Agent James Terry Watson (" SA Watson" ). At approximately 11:00 p.m., SA Watson left a restaurant in Bogota, where he had been dining with Drug Enforcement Agency (" DEA" ) and international law enforcement colleagues. SA Watson hailed a taxi (" Taxi #1" ) in the Parque 93 area of Bogota, a popular and affluent neighborhood known for high-end dining and shopping establishments. Defendant Garcia Ramirez drove Taxi #1. Once SA Watson entered Taxi #1, Garcia Ramirez engaged SA Watson in conversation in Spanish and determined that SA Watson was seeking a ride to the Marriott Hotel in Bogota. As soon as Taxi #1 began to travel, a second taxi (" Taxi #2" ), driven by Defendant Lopez, pulled up behind Taxi #1. Defendants Figueroa Sepulveda, Bello-Murillo, and Gualtero were riding in Taxi #2. A third taxi (" Taxi #3" ) was originally part of the robbery crew, but the taxi encountered mechanical problems shortly before Taxi #1 picked up SA Watson. The defendants intended for the driver of Taxi #3 to obtain the victim's automatic teller machine (" ATM" ) and credit cards, and take them to the ATM to withdraw cash from the victim's bank accounts using Personal Identification Numbers (PINs).

After a short drive, Defendant Garcia Ramirez alerted the other defendants that SA Watson would their next robbery victim. Using a previously agreed upon signal, Defendant Garcia Ramirez alerted his co-defendants by pumping the brakes of his taxi to act as if it were experiencing engine trouble. Defendant Lopez confirmed his understanding of the plan by flashing the headlights of his car. Taxi #1 then came to a stop, and Taxi #2 pulled up directly behind it. Defendants Figueroa Sepulveda and Bello-Murillo got out of the back seat of Taxi #2 and got into the back seat of Taxi #1, one on each

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side of SA Watson. Defendant Figueroa Sepulveda used a stun gun in an attempt to incapacitate SA Watson, and SA Watson struggled. During the fracas, Defendant Bello-Murillo stabbed SA Watson several times with a knife.

SA Watson was able to break free but collapsed a short distance later. Colombian National Police officers arrived soon thereafter and placed SA Watson in their vehicle. They took him to the hospital, where he was pronounced dead shortly thereafter. The cause of SA Watson's death was blood loss as a result of multiple stab wounds.

II. Standard of Review

The legal standards governing a motion to suppress are clear. The burden of proof is on the party who seeks to suppress the evidence. United States v. Dickerson, 655 F.2d 559, 561 (4th Cir. 1981). Once the defendant establishes a basis for his motion to suppress, the burden shifts to the government to prove the admissibility of the challenged evidence by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177 n. 14, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (" [T]he controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence." ). Where a defendant seeks to suppress a statement under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the government bears the burden of establishing by a preponderance of the evidence that the ...


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