The opinion of the court was delivered by: Thomas A. Varlan United States District Judge
Defendant, Francisco Morales Angeles ("Angeles"), also referred to as Juan Gonzales, is charged with Counts One through Nine listed in the First Superseding Indictment [Doc. 49], and defendant, Jose Sanchez ("Sanchez"), is charged with Counts One through Eight listed in the First Superseding Indictment [Doc. 49], in connection with the kidnaping and carjacking of Jose Garcia. Sanchez filed a motion to suppress [Doc. 22] in which he requests that the Court enter an order suppressing statements he made to agents of the Federal Bureau of Investigation ("FBI") on July 14, 2007 on the grounds that the statements were obtained in violation of his rights under the Fourth and Fifth Amendments of the United States Constitution. Angeles filed a motion to suppress [Doc. 38] in which he requests that the Court enter an order suppressing all oral, written, or recorded statements he made, before or after his arrest, to any government agent on the grounds that the statements were obtained in violation of his rights under the Fourth and Fifth Amendments of the United States Constitution and Section 7, Article I of the Tennessee Constitution.
Following an evidentiary hearing on the motion to suppress on November 19, 2007, Magistrate Judge C. Clifford Shirley filed a report and recommendation ("R&R") [Doc. 59], in which he recommended that both motions to suppress be denied. This matter is before the Court on defendant Angeles's objection [Doc. 60], and defendant Sanchez's objection [Doc. 61], to the R&R.
As required by 28 U.S.C. § 636(b)(1), the Court has undertaken a de novo review of those portions of the R&R to which defendants object. In doing so, the Court has carefully considered Judge Shirley's R&R [Doc. 59], the underlying briefs [Docs. 22; 23; 38; 45; 48; 52; 56; 57], and briefs regarding the pending objections [Docs. 60; 61]. The government has not responded to defendants' objections and the time for doing so has passed. See L.R. 7.1(a), 7.2. The Court observes that the record contains no transcript of the hearing before Judge Shirley and the Court therefore accepts Judge Shirley's recitation of the evidence and findings of facts as true and correct. For the reasons set forth herein, the Court will overrule defendants' objections, and the motions to suppress [Docs. 22; 38] will be denied.
A. Waiver of Privilege Against Self-Incrimination and Right to Counsel
Both defendants argue that their statements should be suppressed because they did not knowingly and intelligently waive their right to remain silent and right to counsel. A statement by a defendant during a custodial interrogation without counsel present may only be introduced at trial if the defendant "knowingly, and intelligently waived his privilege against self incrimination and his right to retained or appointed counsel." Miranda v. Arizona, 384 U.S. 436, 475 (1966) (citation omitted). There is a presumption against waiver and thus the government bears the burden of proving that any waiver was voluntarily, knowingly, and intelligently given. North Carolina v. Butler, 441 U.S. 369, 373 (1979). The government must establish that the defendant was aware of "the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412, 421 (1986).
Whether a defendant's waiver of his rights was given voluntarily, knowingly, and intelligently is a question that must be decided based upon the totality of the circumstances surrounding the statement in question. Schneckloth v. Bustamonte, 412 U.S. 218, 226-27 (1973); Garner v. Mitchell, 502 F.3d 394, 408 (6th Cir. 2007). The court must consider the defendant's "age, experience, education, background, and intelligence, and  whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights." Garner, 502 F.3d at 408 (quoting Fare v. Michael C., 442 U.S. 707, 725 (1979)). An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. Butler, 441 U.S. at 373.
Defendant Sanchez objects to Judge Shirley's conclusion that Sanchez's statements to FBI Special Agent Glenn Gregory should not be suppressed because Sanchez fully understood the waiver of his constitutional rights. Sanchez also objects to the use of Agent Gregory's typed summary of Sanchez's statements which was not transcribed until four days after Sanchez made the statements. Upon careful review of the record and controlling law, the Court agrees with Judge Shirley's conclusion that Sanchez fully understood his rights and the meaning of a waiver of those rights, and accordingly concludes that his waiver was made knowingly and intelligently.
The government does not dispute that Sanchez had a right to remain silent and a right to have counsel present at the time he made the statements he wishes to have suppressed. The issue is whether Sanchez properly waived these rights. Sanchez argues that his English language skills are insufficient to have permitted him to make a knowing and intelligent waiver of his constitutional rights. The Court does not agree. Sanchez made the statements at the FBI field office in Houston in English after Agent Gregory explained the charges against Sanchez and asked Sanchez, in English, if he wanted to give a statement. When Sanchez indicated that he did want to speak, Agent Gregory provided him with an advice of rights form, written in English. Agent Gregory stated that Spanish advice of rights forms were available but he did not give one to Sanchez because he determined that Sanchez could speak and understand English. Agent Gregory testified that he watched Sanchez initial next to each right indicating that he understood it and sign the form indicating that he was waiving his rights. Agent Gregory had Sanchez read the form aloud and Agent Gregory testified that Sanchez had no trouble doing so other than not being able to pronounce or understand the word "coercion."
Sanchez relies heavily on his lack of familiarity with the word coercion to support his argument for lack of understanding. The Court agrees with Judge Shirley's determination that Sanchez's difficulty with the word coercion does not lead to the conclusion that his waiver was not made knowingly or intelligently. The sentence in the waiver that included the word coercion reads: "No promises or threats have been made to me and no pressure or coercion of any kind has been used against me." [Doc. 45.] The sentence has the same meaning and can be properly understood with or without the word coercion. To ensure that Sanchez understood all of the language in the waiver, Agent Gregory explained that the word coercion meant "to feel forced to speak to myself and Sergeant Clark" [Doc. 59]. Sanchez then stated that he understood the word and the waiver as a whole.
Sanchez's motion for suppression suggests that Agent Gregory's assessment of Sanchez's understanding of the English language was based upon an "if you can pronounce it you can understand it" test. This is not the case. Agent Gregory testified that he based his conclusion that Sanchez spoke English on his observation of Sanchez's English skills at the scene of his arrest, during the booking process, throughout his two-hour interview with Sanchez, and from information received from the Knoxville FBI office, which indicated that Sanchez speaks English. The only trouble Sanchez had with communicating in English was his lack of familiarity with the word coercion and some trouble writing in English. In attempting to label a photograph for identification, Sanchez indicated that did not know how to write "Paco's girlfriend" in English and Agent Gregory permitted him to write it in Spanish. ...