USA v. Ceron

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America,
Plaintiff,
vs.
Daniel Vivas Ceron,
Defendant.
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Case No. 2:15-cr-55
REPORT AND RECOMMENDATION
ON MOTION TO SUPPRESS
Daniel 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, 2019. 1
Ceron 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.
But, in 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
1 In addition to the court reporter’s record, a digital recording of the hearing is
available through the court’s computer system.
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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.
After 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).
At the 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 2
; and (4) HSI Agent Jeremy Grube, the case agent, who was
present in Montreal and observed Corporal Turcot’s interview of Um.
2 Corporal Turcot testified via video from Montreal. At the hearing, Ceron,
through counsel, verified he did not object to use of video for the testimony. In a pro se
motion, Ceron refers to Corporal Turcot not having sworn before a Canadian court,
asserting no action could therefore be taken against Corporal Turcot if he lied under
oath. (Doc. 93, p. 2).
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Several 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).
Subsequent 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 below.
Summary of Evidence
1. 	Ceron’s Sworn Statement
In 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.
Ceron 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
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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.
CBSA 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.
As to 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.
Ceron 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.
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Ceron 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 situation.” Id.
Ceron 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.”
Ceron’s 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
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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 Ceron signed.
According 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.
Ceron 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.”3 (Doc. 93, p. 1).
Ceron 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
3 As discussed later in this opinion, the recording in evidence is of only a portion
of the Um/Ceron phone conversation.
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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.
The 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] activity.” Id.
Ceron 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.
Ceron 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.
Ceron 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. at 57.
The 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
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extradition, and his position that the process of his extradition did not comport with
international law.
2. 	Law Enforcement Agents’ Testimony
Agents 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, 4 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 Fridays.
Agent 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.
Agents Black and Buemi both testified that they were waiting for Ceron at a
4 Article 29 of the Constitution of Panama provides, “All private communications
are inviolable and may not be intercepted or recorded unless authorized by judicial
warrant.”
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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.
A. 	Interrogation Environment
Agents Black and Buemi described the area where Ceron’s interrogation took
place: an anteroom, approximately ten by twelve feet, with a smaller adjoining room
where the interrogation took place. Agent Black described the smaller room as well-lit
with a large exterior window. A door to the larger anteroom was left open during the
interrogation because there was not air conditioning in the smaller room. Agent Black
testified there were “about five” other law enforcement agents in the anteroom during
the interrogation.
Two chairs faced each other inside the smaller room. Agent Buemi sat in one
chair, and Ceron sat in the other. Agent Buemi said there was a “comfortable space”
between him and Ceron. Ceron faced the window, across from Agent Buemi. Agent
Black stood between Agent Buemi and the window and took notes during the interview.
Agents Black and Buemi testified the questioning of Ceron began at approximately 2:50
p.m., Eastern Time, thirty to forty minutes after the plane on which Ceron arrived
landed at TIA.
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Agents Black and Buemi both testified they were unarmed during the
interrogation. Both agents also testified they saw none of the Canadian or Panamanian
police officers in possession of any firearms, batons, or other implements of force. Agent
Black testified he did not see any of the Panamanian police officers wearing duty belts.
Agent Buemi testified he and Agent Black wore “laid back” clothing during the
interrogation.
B. 	Miranda Warning
Agent Black testified he and Agent Buemi showed Ceron their credentials after
they entered the smaller room. Agent Black testified Ceron had wanted to talk to the
agents even before he was given a Miranda warning, but Agent Black and Agent Buemi
told him they could not talk with him until they explained his rights to him.
Agent Buemi testified that he read the Miranda warning to Ceron in the English
language after they entered the smaller room, that he presented Ceron with two written
Advice of Rights forms—one in English and one in Spanish—and that he allowed Ceron
to read both forms himself. Ceron initialed each item on the Spanish language form, and
he and Agent Buemi signed the Spanish language form. Agent Buemi indicated on the
form that it was signed at 2:50 p.m. (Doc. 90-1).
Agent Black testified that, while the Miranda warning was being read to him,
Ceron asked about getting a lawyer and that he was told a lawyer could not be arranged
in Panama but one could be arranged once he got to the United States. Agent Black
testified Ceron did not actually say he wanted a lawyer but only asked about the process
of getting a lawyer. Agent Black testified Ceron agreed to talk with him and Agent Buemi
and “never said he didn’t want to talk.” Agent Black testified Ceron did not raise the
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question of speaking with a lawyer at any point later in the interrogation. Agent Buemi
testified he did not remember Ceron asking questions about getting a lawyer. Agent
Buemi testified Ceron asked no other questions about his rights; both agents testified
Ceron confirmed his understanding of his rights and stated he was willing to answer
their questions.
C. 	Interview Process
Agent Black testified he and Agent Buemi advised Ceron of the charges in the
Indictment after giving Ceron the Miranda warning. Agent Black described Ceron as
appearing curious, attentive, cordial, agreeable, and very intelligent throughout the
interrogation. He testified that Ceron answered questions without hesitancy, that Ceron
was “eager to know what we knew” throughout the interrogation, and that Ceron did not
decline to answer any questions during the interrogation. Agent Buemi described
Ceron’s demeanor as relaxed and observant.
During cross-examination, Agent Black testified he had his notes of the
interrogation when he prepared his report five to seven days after the interrogation but
he could no longer find those notes. He also testified he did not have the text messages
he and Agent Grube had exchanged that day, since the text messages were not saved
when the cell phone he had in Panama was replaced.
Agent Buemi conducted his questioning in English, which Agent Black testified
was Ceron’s stated preference. Agents Buemi and Black both testified that Ceron spoke
fluent English throughout the interrogation and that he gave no indication of not
understanding the English language at any point during the interrogation.
Agent Black testified that Ceron asked if the agents wanted him to “write a blank
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check” but he did not know what Ceron meant by that statement and that they told him
they just wanted the truth. Agent Black described Agent Buemi’s interrogation as
outlining the government’s evidence to Ceron and seeking Ceron’s confirmation of that
evidence.
Agent Buemi testified he played a recorded conversation—between Ceron and an
undercover agent—to Ceron early in the interrogation and Ceron asked whether it was
Agent Buemi with whom he had spoken during that conversation. Agent Buemi testified
he then presented Ceron with surveillance photographs of Ceron’s girlfriend—Um—
receiving packages containing drugs and photographs of Ceron’s mother receiving
packages containing payments for drugs. Agent Buemi testified he perceived that after
he presented those photographs, Ceron began to speak more freely in response to his
questions.
Agents Buemi and Black both testified Ceron confirmed evidence presented to
him, including: (1) various online user names alleged to have been used in the course of
fentanyl distribution, (2) other individuals’ involvement in distribution of fentanyl, (3)
Ceron’s familiarity with types and forms of fentanyl, and (4) Ceron’s purchase of
fentanyl directly from China. Agent Black testified Ceron said the deaths and serious
injuries charged in the Indictment had not resulted from “his product” because his
product was not strong enough to cause the alleged overdoses. Agent Black testified
Ceron talked about involvement of others in the distribution of fentanyl and
acknowledged he had supplied fentanyl to several of those individuals. Agent Buemi
testified Ceron’s responses corroborated evidence compiled in the investigation and said
Ceron’s responses “filled in the gaps.” Agents Buemi and Black testified the Panamanian
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police officers stepped into the smaller room five or six times to check on progress of the
interrogation but had no interaction with Ceron when they did so.
Agent Buemi testified he advised Ceron that his mother would be interviewed in
Bogotá the same day. Agent Grube testified he asked an HSI agent in Bogotá to conduct
a “consensual interview” of Ceron’s mother at the Bogotá airport and described Ceron’s
mother as a “person of interest” in the case. An investigation report in the docket states
HSI agents first had contact with Ceron’s mother at 5:35 p.m. on July 17, 2015, though
no time zone is indicated. (Doc. 80, p. 3). Agent Grube testified the HSI agents’ contact
with Ceron’s mother did not occur until after the interrogation of Ceron had been
completed. Agent Grube also testified he was informed the encounter between Ceron’s
mother and the HSI agents was “very cordial.”
D. 	Ceron/Um Phone Call
Agent Black testified Ceron became very upset and agitated when presented with
evidence about involvement of Um and Ceron’s mother. Agent Black testified Ceron said
that Um and his mother had no knowledge of the contents of the packages and that they
“didn’t know shit” about fentanyl distribution.
While Agents Black and Buemi were interrogating Ceron, Corporal Turcot, of the
RCMP drug investigations unit, was interviewing Um in Montreal. Corporal Turcot
testified he arrested Um the morning of July 17, 2015, and took her to RCMP
headquarters, where he interviewed her. Corporal Turcot testified he had minimal
involvement in the investigation of Um and limited information regarding the
investigation of Ceron, prior to July 17, 2015.
Agent Grube was also in Montreal and observed Corporal Turcot’s interview of
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Um from a monitoring room. Agent Grube testified he knew Canadian authorities
planned to make contact with at least five individuals alleged to be involved in the
conspiracy that day and he felt it would be best that he be present in Montreal because
of his extensive knowledge of the case.
Corporal Turcot testified that his interview of Um began at 1500 hours, or 3:00
p.m, that the interview was recorded via video and audio, that he was the only person in
the interview room with Um, and that two U.S. agents were present in the monitoring
room during the interview. Corporal Turcot testified Um was not handcuffed during the
interview and was relaxed and cooperative during the interview but was unwilling to
answer any questions about the investigation. He said that Um had spoken with a “duty
lawyer” twice during the interview process at her request. Corporal Turcot testified he
left the interview room a few times during the interview to consult with the U.S. agents
who were in the monitoring room and the U.S. agents sometimes presented him with
evidence he might use to question Um.
Corporal Turcot interviewed Um in French, a language which Agent Grube did
not understand. Agent Grube testified that, although he did not understand the content
of the interview, it appeared to him the interaction between Corporal Turcot and Um
was cordial, that she was not handcuffed during the interview, and that she appeared to
be communicative with Corporal Turcot. When Corporal Turcot came to the monitoring
room during the Um interview, he reported to Agent Grube that Um was not answering
questions related to the investigation.
Agent Grube testified he communicated with Agent Black via text message and
phone while the Um interview was in progress and Agent Black reported to him that
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Ceron was cooperating with the interrogation. Agents Grube and Black testified they
then arranged a phone call between Ceron and Um, using Agent Grube’s cell phone, in
hopes it would prompt Um’s cooperation. Agent Black testified the phone call was made
“about halfway through” the Ceron interrogation but also estimated it was about 1 ½
hours after the interrogation began. Agent Buemi estimated the phone call was made
about one hour after the interrogation began. A transcript of a partial recording of the
call identifies the time of the call as 2:05 p.m., without any indication of time zone.
Agent Grube testified the call took place in a hallway outside the interview room,
because cell service was poor inside the interview room. He testified HSI Agent Guy
Gino, Corporal Turcot, and Um, were present with him in the hallway during the call.
Agent Grube testified that Um’s demeanor was “fine” during the call and that Ceron did
most of the speaking during the call. Agent Black testified Ceron “teared up” during the
phone conversation with Um but otherwise showed no signs of distress during the
interview. Agent Buemi described Ceron as being “very emotional” during the phone
call.
According to Agents Buemi and Black, Ceron and Um spoke via phone for five to
fifteen minutes in the French language. Corporal Turcot testified the phone call between
Ceron and Um occurred right after 5:00 p.m. Eastern Time and lasted four to five
minutes. Corporal Turcot and Agent Grube listened to the Ceron/Um phone
conversation via speaker phone. Agent Grube learned of the content of the conversation
only through Corporal Turcot, since Agent Grube understood no French. Following the
call, Corporal Turcot told Agent Grube that Ceron had directed Um to be cooperative.
Corporal Turcot testified Um’s demeanor during the phone call was relaxed and she
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listened more than talked. Corporal Turcot testified Ceron gave Um instructions about
what to say and what not to say, told Um to “tell them everything,” and told her he
would “put all the blame on himself.” He testified that neither Ceron nor Um referred to
having been threatened during the phone call. In the partial transcript of the Ceron/Um
call now in evidence, Ceron referred to “giving a discharge” to Um and to his mother.
The transcript shows Ceron told Um not to worry about him several times. Um told
Ceron she was going to wait for her lawyer. (Doc. 90-5).
Corporal Turcot testified Um was no more cooperative after the Ceron/Um phone
call than she had been before the call. Agent Grube testified Corporal Turcot reported to
him that Um had not answered questions about the investigation after the phone call.
Corporal Turcot testified he did not know whether the phone conversation had
been recorded. Corporal Turcot testified about notes he had taken about the phone call,
which he wrote about two hours after the interview. Agent Grube testified he did not
know whether he recorded the phone conversation. Agent Grube was cross-examined
about an audio recording of the call having been sent to a law enforcement agent in
Bogotá, Colombia, and Agent Grube testified he contacted HSI information technology
staff prior to the suppression hearing to attempt to locate any recording but had not
been able to locate any recording. After local media reported on the suppression
hearing, Agent Gino—who was also present in Montreal—contacted Agent Grube,
advised he had recorded a portion of the Ceron/Um conversation on his cell phone and
had located that recording. The parties then contacted the court to request the record be
left open for possible submission of a translated transcript of the recording. Pursuant to
the parties’ stipulation, that transcript is now in evidence as Exhibit 5. (Doc. 90-5).
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Exhibit 5 confirms that the recording of the call was sent to agents who were
interviewing Ceron’s mother in Bogotá on the same day Ceron was interrogated.
E. 	Ceron’s Luggage
The questioning of Ceron took place on a Friday afternoon. Agent Black testified
Ceron’s luggage was left with the Panamanian police officers in the anteroom until near
the end of the interrogation when the officers brought it into the smaller room. Agent
Black testified he interpreted the officers bringing the luggage into the smaller room as a
signal that it was time to finish the interrogation, since Panamanian police officers
generally did not work after hours on Fridays.
Agent Black testified that after Ceron’s luggage was brought into the smaller
room, Ceron asked to retrieve some papers from his luggage. Agent Buemi testified
Ceron asked to look at the papers so that he could provide more detail about accounts
and phone numbers used in the alleged conspiracy. Because Ceron was handcuffed,
Agent Buemi assisted him in opening his luggage. Agent Black described Ceron
retrieving a list of user names from his luggage and explaining those user names to the
agents “without prompting.” Agent Black said the papers were the same as those seized
from Ceron’s Canadian prison cell on June 3, 2015. Agent Buemi testified the
Panamanian police officers ended the interrogation time while he was still reviewing
Ceron’s papers with him and Ceron’s papers were then returned to him.
F. 	Conclusion of Interrogation
Agents Black and Buemi testified the interrogation of Ceron ended at
approximately 4:45 p.m., a little less than two hours after it began. Agent Black testified
of his impression that Ceron “wanted to keep talking” at the time the interrogation
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ended. He also testified Ceron wanted to come to the United States with the agents at
the end of the interrogation. Agent Buemi testified it was his impression at the end of
the interrogation that Ceron would continue to cooperate. Agent Black said that, after
the interrogation ended, Ceron volunteered that he preferred to buy fentanyl from China
over heroin from the Middle East because he did not want to “fund the Arabs” and it was
better for the money go to China rather than to the Middle East.
Agents Black and Buemi testified that they made no threats or promises to Ceron
at any time during the interrogation, that no physical force was used against him, and
that there had been no threats made toward Um or Ceron’s mother at any point during
Ceron’s interrogation. Agent Black testified no voices were raised, there was no shouting
during the interrogation, and the only time Ceron exhibited any heightened emotion
was during his phone conversation with Um. Agent Buemi testified he witnessed no
threats made to Ceron by any of the Canadian or Panamanian law enforcement
personnel.
Post-hearing evidence included translations of emails from two CBSA agents who
escorted Ceron from Montreal to TIA. One agent stated he was not made aware of any
threats or acts of violence toward Ceron during Ceron’s transit in Panama, and the other
agent stated she did not witness or hear any threats made toward Ceron during his
transit in Panama. (Doc. 90-6, p. 5).
G. 	Ceron’s Transfer to United States
Ceron contested his deportation in the Panamanian courts. In January 2017,
Agents Buemi and Grube and another DEA agent transported Ceron from Panama to
North Dakota via a DEA plane. Agent Buemi testified Panamanian authorities brought
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Ceron to the airport and transferred Ceron to custody of the United States. Agent Grube
testified he completed transfer paperwork required by the Panamanian authorities, and
the agents and Ceron then boarded the plane. Agent Grube testified he advised Ceron of
the Indictment and of his rights after they boarded the plane, before the plane took off,
and advised Ceron that they did not want to talk with him about the case at that time.
He testified that Ceron said nothing about the TIA interrogation during the flight.
Agents Buemi and Grube testified Ceron was polite throughout the seven to eight
hour flight from Panama to North Dakota. The plane stopped in Texas for
approximately thirty minutes, to complete “parole paperwork” and entry paperwork.
The agents allowed Ceron a restroom break and provided a meal for him during the stop
in Texas. Agent Grube testified Ceron engaged in “general conversation” with them
during the flight. Agent Buemi said he purposely did not talk with Ceron about the case
during the flight. Both agents testified Ceron asked “what it would look like to
cooperate.” Agents Grube and Buemi testified Ceron mentioned nothing about any
threats made during the July 2015 interrogation during the January 2017 flight. Agent
Grube also testified it was his impression that Ceron would cooperate in the
investigation when they arrived in North Dakota.
Law and Discussion
The government bears the burden to show knowing, intelligent, and voluntary
waiver of rights under Miranda. Berghuis v. Thompkins, 560 U.S. 370, 383-84 (2010).
“The Fifth Amendment guarantees that no person shall be compelled to give
evidence against himself, and so is violated whenever a truly coerced confession is
introduced at trial.” Kansas v. Ventris, 556 U.S. 586, 590 (2009). “A statement is
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voluntary if it is ‘the product of an essentially free and unconstrained choice by its
maker.’” United States v. Daye, No. 16-CR-0088-LRR, 2017 WL 499681, at *4 (N.D.
Iowa Feb. 7, 2017) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)). “A
statement is involuntary when it [is] extracted by threats, violence or express or implied
promises sufficient to overbear the [suspect’s] will and critically impair his capacity for
self-determination.” United States v. LeBrun, 363 F.3d 715, 724 (8th Cir. 2004)
(internal quotation marks and citation omitted).
Whether a confession is the involuntary product of coercion is judged by the
totality of the circumstances—including an examination of both the conduct
of the officers and the characteristics of the accused. The Supreme Court has
long indicated that one of the key concerns in judging whether confessions
were involuntary, or the product of coercion, was the intelligence, mental
state, or any other factors possessed by the defendant that might make him
particularly suggestible, and susceptible to having his will overborne.
Wilson v. Lawrence Cty., 260 F.3d 946, 952 (8th Cir. 2001) (citations omitted); see also
Moran v. Burbine, 475 U.S. 412, 421 (1986) (“Only if the ‘totality of the circumstances
surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of
comprehension may a court properly conclude that the Miranda rights have been
waived.”). “Coercive official activity is a necessary predicate to a finding that a statement
is not voluntary. The [F]ifth [A]mendment privilege against self-incrimination is not
concerned with other types of psychological pressures. An incriminating statement is
not involuntary unless extorted from the accused by means of coercive activity.” United
States v. Goudreau, 854 F.2d 1097, 1099 (8th Cir. 1988) (citation omitted).
As in determining waiver of Miranda rights, the government likewise bears the
burden to show voluntariness of a confession: “[W]hen a confession challenged as
involuntary is sought to be used against a criminal defendant at his trial, he is entitled to
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a reliable and clear-cut determination that the confession was in fact voluntarily
rendered. Thus, the prosecution must prove at least by a preponderance of the evidence
that the confession was voluntary.” Lego v. Twomey, 404 U.S. 477, 489 (1972). The
Supreme Court has made clear the consequences of conviction on the basis of an
involuntary confession: “[A] defendant in a criminal case is deprived of due process of
law if his conviction is founded, in whole or in part, upon an involuntary confession,
without regard for the truth of falsity of the confession and even though there is ample
evidence aside from the confession to support the conviction.” Jackson v. Denno, 378
U.S. 368, 376 (1964).
“If an individual's ‘will was overborne’ or if his confession was not ‘the product of
a rational intellect and a free will,’ his confession is inadmissible because coerced. These
standards are applicable whether a confession is the product of physical intimidation or
psychological pressure.” Townsend v. Sain, 372 U.S. 293, 307 (1963), overruled in part
on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1, 5-6 (1992) (citations and
footnotes omitted). In LeBrun, 363 F.3d at 725-26, the Eighth Circuit cited to a number
of cases in which the court concluded a defendant’s confession was voluntary
considering the totality of the circumstances: a defendant’s mistaken belief that officers
promised leniency in exchange for his confession, United States v. Kilgore, 58 F.3d 350,
353 (8th Cir 1995); officers encouraging a defendant to talk even though the knew of the
defendant’s erroneous belief that an accidental shooting would negate an element of a
murder charge, Winfrey v. Wyrick, 836 F.2d 406, 411-412 (8th Cir. 1987); a confession
to a felony induced by a promise that the defendant would not be prosecuted for a
separate offense involving a drive-by shooting, United States v. Larry, 126 F.3d 1077,
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1079 (8th Cir. 1997); and a confession by a defendant of average intelligence who had
prior contact with law enforcement, United States v. Gallardo-Marquez, 253 F.3d 1121,
1123-24 (8th Cir. 2001).
At the suppression hearing, Ceron asserted him giving a voluntary statement,
without any conditions, would be inconsistent with his history of non-cooperation with
law enforcement on prior criminal charges, inconsistent with him strenuously
contesting extradition in the Panamanian courts, and inconsistent with the vigorous
defense he has mounted since his January 2017 transfer to custody of the United States.
In his first pro se motion, Ceron similarly asserted it would have been illogical for him to
make a voluntary statement. (Doc. 93, pp. 3-4). Agents Buemi and Black testified that it
was not until after they presented Ceron with evidence implicating his mother and Um
that he began to cooperate in the interrogation. Ceron asserts the fact he did not begin
to cooperate until the agents talked about evidence against his mother and his girlfriend
shows his statements were coerced by the threat of harm to his mother and to Um.
Ceron asserts the government’s failure to preserve certain evidence supports his
position. Agent Black testified his interview notes existed at the time he prepared his
report but that he can no longer find the notes. And it appears to be a common practice
that records of agents’ text messages and cell phone calls are not preserved when cell
phones are replaced. Additionally, the agents acknowledged on cross-examination that
there was no prohibition on taking photos during the interrogation in Panama. Photos
could help to confirm the description of the interrogation room and to confirm the
presence or absence of firearms.
There is no dispute that Ceron inquired about having a lawyer when the Advice of
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Rights forms were presented to him. But nowhere in his sworn statement does he state
that he actually requested a lawyer or that he stated he wanted to speak with a lawyer
before answering questions.
There are inconsistencies in the evidence concerning the time of the Ceron/Um
phone call. Corporal Turcot testified the call was made shortly after 5:00 p.m., Eastern
Time, but according to testimony of Agents Black and Buemi, the call began at least an
hour after 2:50 p.m. (the time at which the interrogation of Ceron began) or
approximately 3:50 p.m. The partial translated transcript lists a time of 2:05 p.m. And it
appears only a portion of the phone call was recorded, since the transcript does not
appear to include all of the statements of Corporal Turcot. The discrepancies in timing
may be related to time zone differences. The court’s research shows Panama does not
observe Daylight Savings Time. Timeanddate.com,
https://www.timeanddate.com/worldclock/panama (last visited May 17, 2019).
Agent Black’s testimony was consistent with the contents of his report, which he
prepared within seven days after the interrogation. The testimony among the four
agents is largely consistent, and each was subject to cross-examination. Ceron does not
counter the agents’ testimony that Panamanian authorities did not allow the agents to
carry firearms while in Panama. Ceron presents no law countering the government’s
position that recording of the interrogation was prohibited by Panama’s constitution.
In his pro se motion, Ceron states that he had no way of knowing whether
Panama allowed recording and that he thought the interrogation was being recorded:
Again I could not have made up the hostage threat against my family,
unless they actually said it, because, I see smart phones, I don’t know if
Panama doesn’t allow interrogations to be recorded, that’s very exclusive
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intel, I can’t know that! Say such [a] thing and it not be [the] truth after
having give any type of statement and then pull back, with reason of the
accusation I bring forward, will be stupid from me and counterproductive if
I was looking for a deal then.
That will be as easy as to government say, here are recordings and
make me look like a liar right at the start.
(Doc. 93, p. 3) (spelling, punctuation, and capitalization altered).
In Ceron’s view, the implication of adverse consequences to his family was
psychological pressure sufficient to overbear his will and coerce his confession and to
elicit his cooperation. However,
“The mere fact that an officer may have elicited a confession through a variety
of tactics, including . . . playing on a suspect’s emotions, using his respect for
his family against him, deceiving the suspect, conveying sympathy, and even
using raised voices, does not render a confession involuntary unless the
overall impact of the interrogation caused the defendant’s will to be
overborne.”
United States v. Boslau, 632 F.3d 422, 428 (8th Cir. 2011) (internal citations and
quotation marks omitted); see also Wilson v. Lawrence Cty., 260 F.3d 946, 952 (8th Cir.
2001) (“Whether a confession is the involuntary product of coercion is judged by the
totality of the circumstances—including an examination of both the conduct of the
officers and the characteristics of the accused.”). Although Ceron doubtlessly perceived
some level of pressure from the coordinated interrogations, the other attendant facts
comprising the totality of the circumstances show his statement was, in fact, voluntary.
Though the evidence shows Ceron’s cooperation was motivated by his desire to save Um
and his mother from criminal charges, based on the evidence of record, none of the law
enforcement agents used improper interrogation tactics. See Colorado v. Connelly, 479
U.S. 157, 167 (1986) (“[C]oercive police activity is a necessary predicate to the finding
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that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the
Fourteenth Amendment.”) Ceron initialed and signed a Spanish language Advice of
Rights form, and apart from questions about the process for obtaining a lawyer, there is
no evidence he asked any questions about his rights. The agents’ testimony is more
credible than is Ceron’s written statement.
1. 	Pro Se Motions
In his first pro se motion, Ceron asks for a “list of people who knew or had reason
to know or find out about what I claim happened, and specific evidence, as certain call
logs, surveillance cameras, and more.” (Doc. 93, p. 6). In the second pro se motion,
Ceron asks that a total of twenty-four individuals be subpoenaed to give testimony.
Eighteeen of the twenty-four are Canadian law enforcement personnel, and Ceron asks
that they be subpoenaed in Canada, “via conference, but before a judge.” (Doc. 94, p. 2).
He also asks that Um be subpoenaed, along with two individuals who were charged in
related cases in this court, a Panamanian attorney, an American attorney, and an
individual named Gilles Denis. Additionally, he asks that certain documents and
recordings be subpoenaed: (1) full reports of the CBSA agents who escorted him to TIA,
(2) a CBSA “final report on events and deportation,” (3) a recording of a “call from me to
Marie Um,” (4) a recording of the entire interview conducted in Panama, (5) digital
notes of “U.S. Embassy present during interrogation,” (6) his testimony at court
hearings in Panama, (7) July 17, 2015 surveillance footage from a certain gate at the TIA
terminal, (8) “lying brain scan detector,” and (9) FBI “Full Report on Government
Kidnapping.” Id. at 2-3. Ceron states he is positive the CBSA reports would confirm his
claims of threats against his family. Id. at 1.
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Ceron is represented by counsel. When a defendant is represented by counsel, the
court has no obligation to consider any motions filed pro se. United States v. Pate, 754
F.3d 550, 553 (8th Cir. 2014). Both motions could be denied on that basis alone.
Ceron’s motions refer to his dissatisfaction with counsel not having subpoenaed
the evidence and witnesses he identifies. In the event the presiding judge views Ceron’s
statement of dissatisfaction with counsel as reason to consider the pro se motions, this
court discusses the merits of the pro se motions. In a criminal case, information
requested in a subpoena must have (i) relevancy, (ii) admissibility, and (iii) specificity.
United States v. Nixon, 418 U.S. 683, 700 (1974); see also United States v. R. Enters.,
Inc., 498 U.S. 292, 296. A subpoena cannot be for a general “fishing expedition” or
based on a “mere hope” the desired documents would produce favorable evidence.
United States v. Hang, 75 F.3d 1275, 1283-84 (8th Cir. 1996); see also United States v.
Bueno, 443 F.3d 1017, 1026 (8th Cir. 2006) (“[A] moving party must show, among other
things, that the documents are evidentiary and relevant and that the application is made
in good faith and not intended as a general fishing expedition.”)
Ceron does not explain the basis for his statement that he is positive the CBSA
reports would confirm his claims of threats, and the CBSA agents’ emails in evidence
directly contradict Ceron’s claims. The evidence before the court shows that no
recording of the interrogation exists. None of the evidence before the court suggests
presence of U.S. Embassy personnel during the interrogation. It does not appear that
recordings of the Panamanian court hearings would be relevant to the question of
Ceron’s statements at TIA being voluntary. As to Ceron’s request to subpoena a “lying
brain scan detector” and an FBI “Full Report on Government Kidnaping,” the intended
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meaning of those requests is not clear to this court. As to the call between Ceron and
Um, a transcript of a portion of the call is now in evidence, and investigate reports now
in evidence refer to Agent Gino recording “a portion of their conversation.” (Doc. 90-4,
p. 4).
Of the twenty-four witnesses Ceron wishes to subpoena, two are CBSA agents
who were present in Panama on July 17, 2015, and their emails demonstrate they have
no information about threats made to Ceron. Ceron does not identify any of the other
twenty-four witnesses as having been present in Panama on the day of his interrogation.
In this court’s opinion, if Ceron’s pro se motions were considered on their merits,
they should be denied under the standards of Hang. 75 F.3d at 1283-84.
Conclusion
Ceron’s pro se motions could be denied under the Eighth Circuit’s Pate decision.
If considered on the merits, this court RECOMMENDS they be denied under Hang.
Considered in its totality, evidence the government presented at the suppression
hearing shows, by a preponderance of the evidence, that Ceron’s July 17, 2015
statements were given voluntarily. This court therefore RECOMMENDS that Ceron’s
motion to suppress be DENIED.
Dated this 20th day of May, 2019.
/s/ Alice R. Senechal
Alice R. Senechal
United States Magistrate Judge
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NOTICE OF RIGHT TO OBJECT5
Any party may object to this Report and Recommendation by filing with the Clerk
of Court, no later than June 3, 2019, a pleading specifically identifying those portions
of the Report and Recommendation to which objection is made and the basis of any
objection. Failure to object or to comply with this procedure may forfeit the right to seek
review in the Court of Appeals.
5 See Fed. R. Crim. P. 59(b)(2); D.N.D. Crim. L.R. 59.1(D)(3).
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