Opinion
4:22-cr-00370-RM-BGM-1
06-21-2023
United States of America, Plaintiff, v. Nathaniel Taylor, Defendant.
REPORT AND RECOMMENDATION RE:
DEFENDANT'S MOTION TO PRECLUDE STATEMENTS (DOC. 84)
HONORABLE BRUCE G. MACDONALD, UNITED STATES MAGISTRATE JUDGE
Currently pending before the Court is Defendant Nathaniel Taylor's (“Defendant's”) Motion to Preclude Statements (Doc. 84). The Government has filed its response. See Govt.'s Response to Mot. To Preclude Statements (“Response”) (Doc. 90). The Government's Response indicated it would not be introducing statements made by Jose Gonzelez-Sotelo, Pedro Lucas-Lucas, or Miguel Luna-Mendez during its case-in-chief. No reply was filed. Pursuant to LRCrim 5.1, this matter came before the Court for a hearing and a report and recommendation. (Doc. 5.) On May 17, 2023, an evidentiary hearing was held by Magistrate Judge Macdonald and the matter taken under advisement. See ME 05/17/23; (Docs. 95.) The Magistrate Judge recommends that the District Court, after its independent review, deny Defendant's Motion (Doc. 84).
Also pending before the Court are Defendant's Motion to Preclude Other Acts Evidence Under 404(b) (Doc. 85); Defendant's Motion to Preclude Expert (Doc. 86); and Defendant's Motion to Suppress Evidence (Illegal Arrest) (Doc. 87). At the hearing held May 17, 2023, Defendant withdrew his Motion to Suppress Evidence (No Reasonable Suspicion to Stop) (Doc. 83). See ME 05/17/23 (Doc. 95)
I. FACTS
The Defendant submits the following facts:
Taylor was charged with two Counts; to wit: Conspiracy to Transport Illegal Aliens and Transportation of Illegal Aliens. The illegal alien named in the indictment for both counts is Manuel Jimenez-Entzin.
According to the disclosure, on December 14, 2021, Border Patrol Agents were briefed about a “suspicious black Ford Edge sport-utility vehicle” with Washington license plates. The vehicle was stopped earlier in the day and Taylor was identified as the driver. Agents were also told that Taylor was previously arrested for alien smuggling on December 6, 2021. According to disclosure, Taylor was in a “popular location for human smuggling load ups . . .”
At approximately 6:40 p.m., Agents monitoring a camera saw a Ford vehicle park next to a local landmark in Lochiel, Arizona. The vehicle left its location approximately 20 minutes later traveling westbound on FSR 61 which is also “a common smuggling route.” The vehicle was later observed turning around and heading back in the direction of Lochiel. Camera operators also saw a group of suspected illegal aliens walking toward the Lochiel area. At 7:30 p.m., camera operators saw the Ford leaving the Lochiel area at a “high rate of speed.” The camera operators continued to follow it and located it traveling on Duquesne Road. The camera operators saw the vehicle stop, several people exited and the Ford continued traveling west for approximately .5 miles. At 7:55 p.m., the Ford passed Santa Cruz County Sheriff Gonzalez's location on Duquesne Road. Sheriff Gonzalez pulled out in an attempt to follow the vehicle. The Sheriff saw the Ford stop and people exiting running northbound. The Ford stopped next to a tree and the driver ran northbound.
The Agents later identified four illegal aliens in the desert. Agents interviewed Jose Gonzalez-Sotelo, Manuel Jimenez-Entin, Pedro Lucas-Lucas, Miguel Luna-Mendez. In a photo lineup, Luna-Mendez, Lucas-Lucas
and Jimenez-Entzin identified Taylor's photo and Gonzalez-Sotelo identified another photo as a driver. At 10:40 p.m., Taylor was found walking along SR82 and arrested.
The Government disclosed to the defense police reports from one case allegedly involving Taylor that occurred on December 6, 2021. According to the reports, Taylor was driving a 2019 Toyota Corolla with false Arizona license plates. He stopped at the immigration checkpoint on SR286. Agents located one suspected illegal alien in the trunk. A firearm was located inside Taylor's waistband.See Defendant's Motion to Preclude Other Acts Evidence Under 404(b) (Doc. 85 at 2-3); see also Motion to Preclude Statements (Doc. 84 at 2) (“Taylor hereby incorporates the relevant facts set forth in his Motion to Preclude Other Acts Evidence Under 404(b) filed on April 17, 2023.”)
Count I pursuant to 8 U.S.C. § 1324(a)(1)(A)(v)(I) (“conspiracy”); 8 U.S.C. § 1324(a)(1)(A)(ii) (“transports” or “moves”); 8 U.S.C. § 1324(a)(1)(B)(i) (if (v)(I) or (A)(ii) for purpose of “commercial advantage” or “private financial gain”). Count II pursuant to 8 U.S.C. § 1324(a)(1)(A)(ii) (“transports” or “move”); 8 U.S.C. § 1324(a)(1)(B)(ii).
The Court notes that Count I of the Indictment (Doc. 28) states “Nathaniel Dijon Taylor, did knowingly and intentionally . . . transport and move illegal aliens, including Manuel Jimenez-Entzin ....” (emphasis added); and Count II is limited to Manuel Jimenez-Entzin. See Indictment (Doc. 28).
“The government agrees with the facts as laid out in defendant's Motion to Preclude Other Acts Evidence Under 404(b) (Dkt. 85), with the following additional facts.”
On January 4, 2022, a status conference was held. The defendant signed and filed a written stipulation to facts and release of the material witness. (Dkt. 17.) Mr. Taylor stipulated that he was the driver in the vehicle that transported the material witness. (Dkt. 17, ¶ 3.) The defendant stipulated that the material witness would be returned to his country of origin and would be unavailable pursuant to federal Rule of Evidence 804. (Dkt. 17, ¶ 4.). Finally, the defendant stipulated that “the government may elicit hearsay testimony from any agent regarding any statements made by the above mentioned material witness contained in the disclosure, and such testimony shall be admitted as substantive evidence in any hearing or trial in the above captioned matter." The stipulations were signed by defendant, his current defense counsel, and the assigned AUSA. As a result of the stipulation, the magistrate judge released the material witness. (Dkt. 18.).
Despite his stipulation, Taylor filed a motion to suppress the material witness Jimenez-Etzin's identification of him as the driver of the vehicle. (Dkt. 84.)See Government's Response to Motion to Preclude Statements (Doc. 90 at 1-2.)
II. RELEVANT PROCEDURAL HISTORY
On December 20, 2021, the Government filed its First Motion for Status Conference regarding the terms of the pre-indictment plea offer and its requirement of a change of plea hearing to be conducted two days before the Video Deposition. See First Motion for Status Conf. (Doc. 9); see also Notice of Video Deposition Hearing as to Date, Time and Location (Doc. 6) (“video deposition of Manuel Jimenez-Entzin, is currently scheduled for Friday, January 7, 2022 at 1:00 p.m[.]”); see also Order (Doc. 10) (setting Status Conf. 01/04/22). An initial appearance for the material witness Manuel Jimenez-Entzin was held on December 21, 2021. (Doc. 21.) On December 23, 2021, counsel for material witness Manuel Jimenez-Entzin filed Counsel for Material Witness Notice re: Schedule Conflict with Video Deposition Date and Time (Doc. 12), as he was double booked.
On January 3, 2022, Defendant through counsel, lodged a fully executed proposed Plea Agreement, Consent to Magistrate Judge jurisdiction, and Information (Doc. 13), to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted.
On January 4, 2022, the parties filed a Stipulation and Joint Motion for Release of Material Witness Without Taking Video Deposition (“Stipulation and Joint Motion for Release of Material Witness”). (Doc. 17.) Also, on January 4, 2022, the Government filed its proposed Information (Doc. 14) (“Notice of Assignment”) along with a Waiver of Indictment (Doc. 14-1), unsigned. Defendant through counsel, also filed on January 4, 2022, a Notice of Change of Plea Hearing (Doc. 15), setting a change of plea hearing for January 11, 2022.
The Stipulation and Joint Motion for Release of Material Witness states, in pertinent part, the following:
1. Manuel Jimenez-Entzin (hereinafter referred to as the “material witness”), is not a natural born or naturalize citizen, legal permanent resident, or national of the United States;
2. The material witness entered the United States illegally on or about December 14, 2021;
3. The material witness was transported in the vehicle where defendant Nathaniel Dijon Taylor was the driver;
4. The parties also jointly agree that as a result of this stipulation, the material witness will be returned to their country of origin and thus unavailable as defined in Fed.R.Evid. 804.
5. Therefore, the parties agree that the government may elicit hearsay testimony from any agent regarding any statements made by the above-referenced material witness contained in the disclosure, and such testimony shall be admitted as substantive evidence in any hearing or trial in the above captioned matter.See Stipulation and Joint Motion for Release of Material Witness (Doc. 17 at 1-2.).
At the Status Conference held January 4, 2022, regarding the Stipulation and Joint Motion for Release of Material Witness (Doc. 17), Defendant was represented by defense counsel, Henry L. Jacobs, Esq. After the clerk called the case, Counsel Jacobs, first, notified the Court and put on the record that Defendant Taylor had contacted counsel's office that morning and thought he wanted a new lawyer and after counsel Jacobs counseled him, Defendant indicated he wanted to stay with counsel Jacobs. See CourtSmart dated January 4, 2022 at 10:13:30. When questioned by the judge as to whether Defendant Taylor wanted to continue representation by current counsel, Defendant Taylor responded “yes.” See Courtsmart Recording January 4, 2022 at 10:14:00; see also ME dated 01/04/22; see also Order for Release of Material Witness (Doc. 18.). Also at the Status Conference, Defendant Taylor was questioned by the judge, regarding the Stipulation and Joint Motion for Release of Material Witness (Doc. 17), as follows:
[I]n this district what we do instead of holding the material witness until the case goes to trial, which can be many months, we scheduled the videotaped deposition of the material witness, and that testimony is in lieu of the testimony of that individual at trial. If we release the material witness, Mr. Taylor you are going to lose your right, which you have, to sit down with the help of Mr. Jacobs and confront that witness, ask questions of that witness, just like you would at trial, and if we release the witness in all likelihood the witness is not going to be available at trial and you are going to lose your opportunity to question that individual about any of the circumstances surrounding your case, do you understand that[?]
Mr. Taylor responded “Yes.”See Courtsmart Recording January 4, 2022 at 10:15:00. The judge also asked:
And you agree that we should go ahead and release the material witness, is that correct(?)
Mr. Taylor responded “Yes.”See Courtsmart Recording January 4, 2022 at 10:15:40. Lastly, the judge indicated:
We will go ahead and sign the order for release of material witness and vacate 01/07/22 deposition. I know there was Plea agreement/Consent/information-not able to move forward for a change of plea today-I don't think we were able to get a “WI” number so we are not able to move forward with a change of plea today-but we could set it today for a change of plea.See Courtsmart Recording January 4, 2022 at 10:15:45. Notably, the Court's associated Order (Doc. 18) entitled “Order for Release of Material Witness” states the following:
Upon joint motion of the parties to this action, and for good cause shown,
IT IS ORDERED directing the United States Marshal to release the material witness, Manuel Jimenez-Entzin, in this action, to the Department of Homeland Security for return to his country of origin.See Order dated January 4, 2022 (Doc. 18.)
On January 13, 2022, Defendant Taylor through counsel filed a Notice of Request for New Indigent Counsel (Doc. 25). At a status conference held January 18, 2022, the judge appointed new counsel, Natalie Haywood, Esq., to represent Defendant. See CourtSmart Recording dated January 18, 2022; see also ME 01/18/22.
On July 21, 2022, Defendant through Counsel Haywood, filed a Motion to Withdraw as Attorney of Record (Doc. 37), due to a breakdown in communication. On July 22, 2022, the Court granted Defendant's Motion (Doc. 37), and appointed Stephanie Bond, Esq., from the Criminal Justice Act Panel, to represent Defendant Taylor. (Doc. 38.) Ms. Bond is Defendant Taylor's current counsel.
On March 9, 2022, the Grand Jury Indictment (Doc. 28) charged Defendant with:
COUNT I:
8 U.S.C. § 1324(a)(1)(A)(v)(I)
8 U.S.C. § 1324(a)(1)(A)(ii)
8 U.S.C. § 1324(a)(1)(B)(i)
(Conspiracy to Transport Illegal Aliens)
COUNT II:
8 U.S.C. § 1324(a)(1)(A)(ii)
8 U.S.C. § 1324(a)(1)(B)(ii)
(Transportation of Illegal Aliens)See Indictment filed March 9, 2022 (Doc. 28).
Subsection (B)(i) provides, in pertinent part, “in the case of a violation of subparagraph . . . (v)(I) . . . [or] (A)(ii) . . . in which the offense was done for the purpose of commercial advantage or private financial gain ....” 8 U.S.C. § 1324(a)(1)(B)(i).
Subsection (B)(ii) provides, in pertinent part, “in the case of a violation of subparagraph (A)(ii) ....” 8 U.S.C. § 1324(a)(1)(B)(ii).
On March 28, 2022, the Government provided notice pursuant to Local Rule 16.1, that all confessions, admissions, and statements provided in government disclosure will be introduced into evidence by the government at the trial in this matter citing to United States v. Hall, 742 F.2d 1153, 1156 (9th Cir. 1984). See Doc. 74.
At the evidentiary hearing held May 17, 2023, the Court first, heard arguments and received evidence addressing Defendant's pending Motion to Suppress Evidence (Illegal Arrest) (Doc. 87); and secondly, addressed Defendant's Motion to Preclude Statements (Doc. 84), taking both matters under advisement while reserving for the District Judge the other two pending motions, i.e., Defendant's Motion to Preclude Other Acts Evidence Under 404(b) (Doc. 85) and Defendant's Motion to Preclude Expert (Doc. 86).
Regarding the subject motion, i.e., Defendant's Motion to Preclude Statements (Doc. 84), the Court noted for hearing purposes, that although the motion moves the Court-“for an order precluding any out-of-court statements made by Jose Gonzalez-Sotelo, Manuel Jimenez-Entin, Pedro Lucas-Lucas, and Miguel Luna-Mendez implicating the Defendants [sic] in this matter[,]”-the Court noted that in the Government's response, and as indicated on the record, only the statement[s] of Manuel Jimenez-Entzin would be used in the Government's case-in-chief. See Motion to Preclude Statements (Doc. 84 at 1); see also Response (Doc. 90 at 1.). Accordingly, the Court rendered Defendant's Motion to Preclude Statements as to witnesses Jose Gonzalez-Sotelo, Pedro Lucas-Lucas, and Miguel Luna-Mendez, moot, for purposes of the hearing.
At the hearing on May 17, 2023, as to material witness, Manuel Jimenez-Entzin, Defense Counsel raised five issues regarding the Stipulation and Joint Motion for Release of Material Witness (Doc. 17):
1) “I understand that the Government is saying that Mr. Taylor entered into an agreement with them that he signed, his prior attorney signed, agreeing that these statements can come in” . . . “[t]he problem is, I don't have any firsthand knowledge of that because I wasn't his attorney at the time.” Hr'g Tr. 5/17/23 (Doc. 100) at 43:11-16.
2) “[T]he Stipulation isn't our normal one, the stipulation has him admitting that he was the driver . . . I was looking back at a couple of mine and that - I've never had that before.” Id. at 45:11-15.
3) “[I]t's not just I'm going to allow you to release these material witnesses and I understand that what they say might be used against me. There was actually an admission made -” Id. at 45:17-21.
4) “[I]t appears that there was some issue at the time as to whether or not there was going to be a change of counsel, and . . . the reason why I filed this, is because . . . that's a pretty big thing to have somebody admit that they were the driver of a vehicle.” Id. at 46:5-10.
5) “So that is the reason why I felt there was a need to have you at least look into it and make sure that you felt like it was knowing and voluntary at the hearing.” Id. at 46:13-16.
The Government responded to defense counsel's argument, as follows, “[i]t's hard for me to imagine that the Court would have evidence to make a finding of involuntariness without testimony by the accused as to what happened there. And . . . with the record being a signed stipulation and some sort of minute entry saying that he was advised in open court of X, Y, and Z, I'm not sure there's anything exigent that would support that.” Hr'g Tr. 5/17/23 (Doc. 100) at 46:22-47:3.
At the time Defendant signed the Stipulation and Joint Motion For Release of Material Witness (Doc. 17), counsel Bond was not representing Defendant, rather Defendant's counsel was Henry L. Jacobs, Esq.
Paragraph 3 of the Stipulation (Doc. 17), states as follows:
3. The material witness was transported in the vehicle where defendant Nathaniel Dijon Taylor was the driver[.]See Stipulation (Doc. 17 at 1, ¶ 3).
III. VALIDITY OF STIPULATION
“The test regarding the validity of a stipulation is voluntariness.” United States v. Molina, 596 F.3d 1166, 1168-69 (9th Cir. 2010). “[Stipulations serve both judicial economy and the convenience of the parties, [and] courts will enforce them absent indications of involuntary or uninformed consent.” United States v. Molina, 596 F.3d 1166, 1169 (9th Cir. 2010) citing CDN Inc. v. Kapes, 197 F.3d 1256, 1258 (9th Cir.1999). “A ‘defendant who has stipulated to the admission of evidence cannot later complain about its admissibility' unless he can show that the stipulation was involuntary.” Molina, 596 F.3d at 1169 citing United States v. Technic Servs., Inc., 314 F.3d 1031, 1045 (9th Cir.2002). “A stipulation is valid and binding if the defendant understands the contents of the stipulation, the nature of the stipulated-facts trial, and the likelihood of a guilty finding.” Adams v. Peterson, 968 F.2d 835, 844 (9th Cir. 1992).
IV. ANALYSIS
Defendant appeared telephonically at the May 17, 2023 evidentiary hearing, and did not testify. Regarding any alleged involuntariness of Defendant's decision to sign the Stipulation (Doc. 17), the Court heard no testimony from the Defendant, and received no evidence, regarding involuntariness, or Defendant questioning the validity of the Stipulation he signed. “[A]rguments and statements of counsel are not evidence.” See Wood v. Stratos Prod. Dev., LLC (In re Ahaza Sys.), 482 F.3d 1118, 1122 n.1 (9th Cir. 2007); see also Barcamerica Int'l USA Trust v. Tyfield Importers, Inc., 289 F.3d 589, 593 n.4 (9th Cir. 2002).
V. CONCLUSION
Based on the totality of the circumstances, the Court concludes the evidence adduced during the suppression hearing demonstrated counsel for Defendant was not Defendant's counsel at the time of Defendant signing the Stipulation and Joint Motion for Release of Material Witness (Doc. 17), and the Court received no evidence, testimony or otherwise, challenging the validity of the Stipulation.
VI. RECOMMENDATION
For the reasons stated above, the Court recommends that the District Court deny Defendant's Motion to Preclude Statements (Doc. 84).
Pursuant to 28 U.S.C. §636(b) and Federal Rules of Criminal Procedure, Rule 59(b)(2), any party may serve and file written objections within fourteen (14) days of being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within fourteen days. If any objections are filed, the parties should use the following case number: CR-22-00370-TUC-RM-1. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See Fed. R. Crim. P., Rule 59.