USA v. Montalvo et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
_____________________________________________
UNITED STATES OF AMERICA,
REPORT AND
RECOMMENDATION
v.
11-CR-00366-RJA-JJM
MISAEL MONTALVO,
Defendant.
____________________________________________
Defendant Misael Montalvo is charged with conspiring to distribute five
kilograms or more of cocaine, in violation of 21 U.S.C. §846, and with the November 11, 2004
killings of Nelson and Miguel Camacho, in violation of 18 U.S.C. §§924(c)(1)(A)(iii), 924(j)(1),
and 2. Superseding Indictment [68] . This case was referred to me by Hon. Richard J. Arcara for1
supervision of all pretrial proceedings [6]. Before me is defendant Misael Montalvo’s pretrial
motion to suppress statements made to law enforcement on November 19, 2011. Spitler
Affidavit [127], ¶3.2
An evidentiary hearing was held on October 2, 2013 [181], at which New York
State Police (“NYSP”) Investigator Geraldo Rondon testified. The parties submitted post-3
hearing briefs [182, 191], and oral argument was held on March 17, 2014 [192]. For the
following reasons, I recommend that the motion be denied.
Bracketed references are to the CM/ECF docket entries.1
Montalvo’s remaining pretrial motions are addressed in a separate Report,2
Recommendation and Order. Montalvo’s suppression motion (Montalvo’s Memorandum of Law [44],
Point II) was initially filed by his former counsel, James Kousouros, Esq., and later adopted by his
subsequent counsel, Kevin Spitler, Esq.
Investigator Rondon also submitted a detailed Affidavit (gov. ex. 3 [174-3]) in3
opposition to Montalvo’s suppression motion.
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BACKGROUND
On November 19, 2011 Montalvo was traveling on Route 90 with his wife and co-
defendant Carmen M. Justiniano Ramirez and their three children when his vehicle was pulled
over at approximately 1:37 p.m. by authorities near Batavia, New York. Gov. Ex. 2 [42-4], p. 1
of 7. The vehicle was seized to execute a search warrant (gov. ex. 8 [174-8]) which I issued on
November 18, 2011 for the vehicle, and Montalvo and his family were transported to the NYSP
barracks in Batavia, where the vehicle was to be searched. Gov. Ex. 2 [42-4], p. 1.
Investigator Rondon testified that he arrived at the NYSP barracks in Batavia at
1:30 p.m., where he met Senior Investigator Josh Keats and Detective Mary Evans from the
Buffalo Police Department, and was informed that the FBI would be executing a search warrant
on Montalvo’s vehicle. October 2, 2013 hearing transcript [181], pp. 12-14, 57. Investigator
Rondon was previously familiar with the murders of Nelson and Miguel Camacho, and knew that
Montalvo’s name had surfaced in connection with the murders (id., p. 57). He testified that they
had no plan to discuss the Comachos’ murders since it was an ongoing investigation, and that the
“true purpose of the stop and the search warrant was . . . to obtain . . . drug evidence” (id., pp. 60-
61). If they did not find anything in the vehicle, Montalvo “was to be let go” (id., p. 60).
Montalvo was brought in 15 to 20 minutes later by FBI Special Agent (“SA”)
Christopher Flowers (id., p. 15). He was handcuffed behind his back (id., p. 16) and Investigator
Rondon understood that this was for officer safety (id., p. 25). Investigator Rondon, who was not
armed, introduced himself to Montalvo in Spanish and told him, “I would definitely be there for
him to help translate, and that I was there for him” (id., pp. 16-17). At SA Flowers’ request,
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Investigator Rondon advised Montalvo in Spanish that he was not under arrest and was being
detained while a search warrant was being executed on his vehicle (id.).
Before Montalvo was led into an interview room by Investigator Rondon, SA
Flowers and Investigator Keats, he inquired about his family and Investigator Rondon advised
him that “they would be okay and they would be waiting in a waiting room right across the
lobby” (id., p. 18). Montalvo also remarked, “usually when I get stopped by the troopers, I just
get a ticket and then I’m on my way” (id.).
The interview room was approximately 10' by 10' in size, with a long table and
four chairs (id., p. 22). Investigator Rondon sat in the chair next to Montalvo (id.). Montalvo
was offered water and his handcuffs were moved from his back to his front (id., pp. 19, 25).
When Investigator Rondon returned “less than a minute” later with water for Montalvo, SA
Flowers “was already asking him questions, like . . . where was he coming from, where was he
going, did he rent the car, questions like that” (id., p. 23). He was also asked his date of birth and
names of his family members (id., pp. 20, 23). SA Flowers’ questions were in English and
Montalvo would answer in broken English, or Spanish, which Investigator Rondon translated for
SA Flowers (id., p. 24).
After these questions were asked and answered, SA Flowers again told Montalvo
that he was not under arrest and that he was being detained because of the search warrant being
executed on his vehicle (id., p. 24). In response, Montalvo said “Okay, I understand. You guys
got to do your job” and “I have nothing to hide. Tell them that they can check because I have
nothing to hide” (id., p. 24). They then removed Montalvo’s handcuffs and he said, “Yes, yes,
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take them off, please, you know, I got nothing to hide, you know. I mean, I’ll talk to you” (id.,
pp. 24-25).
Since Montalvo “was sweating” and “red faced”, Investigator Rondon asked him
if he was okay or needed medication (id., pp. 25-26). Montalvo responded that he was a diabetic,
but stated that he did not need anything and was okay (id., p. 26). Thereafter, SA Flowers asked
Montalvo, “Is there anything in the vehicle that we should know about?” (id., p. 26), and
Montalvo responded, “I have nothing to hide, there’s nothing in the vehicle” (id., p. 27).
At some point, Investigator Rondon left to get Montalvo another glass of water
and when he returned, Montalvo started telling him that he had friends in the New York City
Police Department (id., pp. 27-28). Investigator Rondon “began to just chat with him about that
and ask[ed] him questions about . . . what precincts do they work in” because he also had friends
that worked for the New York City Police Department (id.).
Thereafter, SA Flowers left the room and Investigator Rondon continued the
conversation (id., p. 29). Investigator Rondon “just wanted to talk to him and build a rapport
with Mr. Montalvo and ask about his background” (id., p. 29). He asked him where was he
traveling to and if he was employed (id., p. 29), but did not ask him about any criminal activity
(id., p. 30).
At some point, Montalvo inquired whether Investigator Rondon knew Roberto
Rosas, a NYSP Trooper (id., pp. 20-21, 27). When Investigator Rondon asked Montalvo
whether he wanted Rosas to be contacted, Montalvo said, “No, no, you know. I just know him
from . . . Dunkirk, New York” (id., p. 21). Montalvo also inquired about the search warrant, and
Investigator Rondon replied, “Yes, you know, there is a search warrant for your car and we’re
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going to be talking about that soon” (id., pp. 21-22). Montalvo also asked if his wife could join
him in the interview room and Investigator Rondon told him “that his wife would be okay and
would be waiting in the waiting room” and that they “would like to talk to him” (id., p. 22). In
response, Montalvo said, “Okay, I have nothing to hide” (id.).
Montalvo again asked, “What’s wrong - - what’s up with this search warrant?”
and Investigator Rondon responded, “Well, if you don’t have nothing to hide then you don’t have
to worry about anything. And I’m just trying to get to know you anyway and you don’t know me
so . . . let’s just talk about different things” (id., p. 30). They then talked about food and Puerto
Rico (id.).
When Montalvo asked to use the bathroom, Investigator Rondon told him that he
could not walk around the building unattended and accompanied him to the bathroom, where
they continued their conversation about the family members Montalvo was traveling to visit in
Lackawana, New York (id., p. 31). Since Investigator Rondon was familiar with Lackawana,
Montalvo asked him if he knew his cousin (id., pp. 31-32).
After using the bathroom, Investigator Rondon got another glass of water for
Montalvo before returning to the interview room, where they “started chatting again” (id., p. 32).
In discussing his background, Investigator Rondon asked Montalvo if he ever lived in Buffalo
(id., p. 33). At some point, Montalvo advised Investigator Rondon that he had some diabetic
medication and Viagra in his vehicle and while Investigator Rondon left the interview room to
advise SA Flowers, another individual entered the room to sit with Montalvo (id., p. 34). When
Investigator Rondon returned to the interview room approximately 10 to 15 minutes later, he
asked Montalvo whether his wife was going to need anything out of the vehicle for their children
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(id., pp. 34-35). Investigator Rondon then checked with Montalvo’s wife and advised her that
Montalvo was okay (id., p. 35). When Investigator Rondon went to the garage where the vehicle
was being searched to get an asthma pump Montalvo’s wife had requested, he observed one of
the officers retrieving a package from the vehicle, and he knew that an illegal substance had been
discovered (id., pp. 36, 66).
Upon returning to the interview room, Montalvo said, “Listen, I ain’t got nothing
to hide . . . how long is this going to take?” (id., pp. 36-37). Investigator Rondon responded, “It
shouldn’t take that long. But as soon as the special agent comes back in the room, I’ll ask him
how long . . . it will take, but it shouldn’t take that long” (id., p. 37). He also asked, “Was there
anything in the vehicle that we should know about?” (id.). Montalvo again responded, “No, I
have nothing to hide” (id.).
Shortly thereafter, SA Flowers and another agent entered the room, placed a black
bag or package on the table and advised Montalvo that he was under arrest for possession of a
controlled substance (id., pp. 37, 65). SA Flowers read Montalvo his Miranda rights in English
and he responded, “Yes, I understand”, and then they were read to him in Spanish by
Investigator Rondon and he said, “Yes, yes, I understand, but . . . let them know, Geraldo, . . .
that stuff is not mine” (id., pp. 37-38, 41, 66). Montalvo was advised of his Miranda rights at
approximately 4:30 p.m. (id., p. 58).
After being Mirandized, it “took some time to calm [Montalvo] down and talk to
him” (id., p. 42). Investigator Rondon attempted to build a rapport with him by asking him again
about where he was traveling (id., p. 42). At SA Flowers’ request, Investigator Rondon asked
Montalvo in Spanish whether he knew “about any criminal activity that may help him” (id., pp.
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42-43). Investigator Rondon also told Montalvo in English that they were not making him any
promises (id., p. 67). After Montalvo expressed confusion about what was meant by “criminal
activity”, SA Flowers said “anything like drugs, drug trafficking, or murders” (id., p. 43). Before
Investigator Rondon could translate, Montalvo said, “Did he say homicides?” (id., pp. 44, 67-68).
At this point, Montalvo “began to look worried” and “seemed very nervous” (id., p. 43).
Investigator Rondon again asked him whether he was okay and Montalvo responded, “No, I’m
good. But you can tell them that that’s not mine” (id.).
They then began to have a conversation about the period Montalvo lived in
Buffalo, and he explained that he left Buffalo in 2004 because “[p]eople were spreading negative
rumors about [him]” (id., p. 44). SA Flowers exited the room and Investigator Rondon
introduced Montalvo to Detective Evans and Investigator Keats, but they exited the room without
asking Montalvo any questions (id., pp. 46-47, 68). Investigator Rondon continued his interview
of Montalvo and questioned him about his activities in Buffalo and his knowledge of the murders
of Nelson and Miguel Camacho (id., pp. 47-49).
Investigator Rondon showed Montalvo photographs of Uda Hildago and co-
defendants Efrain Hildago and Brandon Jonas that he obtained from Detective Evans and
Investigator Keats and asked him about these individuals (id., pp. 49-51). Because Montalvo
appeared worried and nervous, Investigator Rondon asked him again if he was okay and “touched
him to console him” (id., p. 51).
When Montalvo expressed concern about the safety of his family, Investigator
Rondon advised him that they would try to protect his family (id., p. 53). After discussing the
Camachos’ funeral, Montalvo became very emotional and asked for a lawyer (id., p. 55). The
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interview concluded at that time, and no further questions were asked of Montalvo (id.). No
threats, promises, or tricks were made by anyone during the interview (id., p. 55).
Although Montalvo elected not to testify at the hearing, he submitted an Affidavit
[54], which appears generally consistent with Investigator Rondon’s testimony. He states that he
was questioned about where he was going and why he was traveling to Buffalo and that hours
later he was told that he was “going to be taken to court for drugs found in the truck” and then
questioned about the drugs and murders (id., ¶¶8-9). Montalvo also states that he was not
Mirandized “when [he] got to the precinct” (id., ¶6). However, he states that he asked to call a
lawyer, but was not permitted to use the telephone (id., ¶6).
Montalvo initially sought to suppress his statements as being taken in violation of
Fifth and Sixth Amendment rights, arguing that 1) he was initially subjected to a custodial4
interrogation without the benefit of Miranda warnings, 2) he “requested an attorney from the
onset of his detention and was not given an opportunity to secure counsel”, 3) when he was given
Miranda warnings, they were given only in English, which he did not understand, and 4) even if
he was properly Mirandized, it did not “vitiate the taint of the initial uncounseled interrogation
which preceded it”. Montalvo’s Memorandum of Law [44], Point II.
“[T]he Fifth Amendment right to counsel applies when a defendant is subject to4
custodial interrogation”. United States v. Medunjanin, 2012 WL 1514766, *7 (E.D.N.Y. 2012).
However, it is not clear what Sixth Amendment claim Montalvo is asserting since “[t]he Sixth
Amendment right to counsel attaches upon indictment”. United States v. Bing Yi Chen, 433 Fed.Appx.
14, 15 (2d Cir.2011) (Summary Order). See United States v. DePonceau, 2008 WL 222520, *10
(W.D.N.Y. 2008) (Payson, M.J.), adopted, 2008 WL 624110 (Larimer, J.).
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ANALYSIS
In Montalvo’s post-hearing brief he argues that was subjected to a custodial
interrogation before receiving Miranda warnings and that “the conduct of law enforcement
overbore defendant’s will and rendered confession that were not self-determined”. Montalvo’s
Post-Hearing Memorandum of Law [191], p. 3 of 3.5
A. Was Montalvo Subjected to a Custodial Interrogation Without the Benefit of
Miranda Warnings?
“A suspect is entitled to Miranda warnings only if he or she is interrogated while
‘in custody.’” Tankleff v. Senkowski, 135 F.3d 235, 243 (2d Cir. 1998). “On a motion to
suppress statements, it is the defendant who bears the burden of demonstrating that he was
subject to custodial interrogation. Once the defendant establishes a basis for his motion, however,
the burden rests upon the Government to prove, by a preponderance of the evidence, the legality
of the actions of its officers.” United States v. Broughton, __ F.Supp.2d__, 2013 WL 5744473,
*3 (E.D.N.Y. 2013) (internal quotations omitted); United States v. Miller, 382 F.Supp.2d 350,
362 (N.D.N.Y. 2005) (“since Miller has alleged police custodial interrogation in the absence of
Miranda warnings, the burden shifts to the government to prove Miranda voluntariness, either
because there was no custodial interrogation implicating Miranda, there was some exception to
Although Montalvo’s initial suppression motion also argued that he was only Mirandized5
in English and that law enforcement continued to question him despite his requests for counsel, I
consider these arguments, which are not raised in his post-hearing brief, to be abandoned. Moreover,
while the voluntariness of Montalvo’s statements was first raised in his post-hearing brief, the
government has not objected to the timeliness of this argument. Therefore, I will consider this argument.
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the Miranda rule, or because Miller was properly Mirandized and waived his rights” citing Lego
v. Twomey, 404 U.S. 477, 489 (1972)). See also United States v. Connelly, 2007 WL 3124538,
*8 (W.D.N.Y. 2007) (Siragusa, J.) (“The government bears the burden of proving by a
preponderance of the evidence both, that in the absence of Miranda warnings, and that the
interrogation of a defendant was non-custodial”).6
The word “‘custody’ for Miranda purposes is not coterminous with, though it is
often informed by, the colloquial understanding of custody”. United States v. FNU LNU, 653
F.3d 144, 152-53 (2d Cir. 2011). Instead, “the overarching . . . question is whether a reasonable
person in the suspect’s position would have understood herself to be subjected to restraints
comparable to those associated with a formal arrest”. Id.
Thus, an interrogation is deemed “custodial” only where “a reasonable person
would not have thought himself free to leave”, and “would have understood his freedom of
action to have been curtailed to a degree associated with formal arrest”. United States v.
Newton, 369 F.3d 659, 672 (2d Cir.), cert. denied, 543 U.S. 947 (2004). “Only if the answer to
this second question is yes was the person in custody . . . and entitled to the full panoply of
protections prescribed by Miranda. ” Id. While the court “must examine all of the circumstances
surrounding the interrogation . . . the ultimate inquiry is simply whether there was a formal arrest
or restraint on freedom of movement of the degree associated with a formal arrest”. Id. at 670.
Compare with United States v. Abbas, 418 F.Supp.2d 280, 285 (W.D.N.Y. 2006)6
(Larimer, J.) (“ For purposes of this hearing, I assume that the defendant has the burden of demonstrating
that he was subjected to custodial interrogation”); United States v. Stone, 2013 WL 5274850, *3 (D.Vt.
2013) (“A criminal defendant bears the burden of establishing that he or she was subjected to custodial
interrogation”).
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While I conclude that a reasonable person in Montalvo’s position would not feel
free to leave, I further conclude that the same person would not “have understood his freedom of
action to have been curtailed to a degree associated with formal arrest” (Newton, 369 F.3d at
672) at that time.
“[A] warrant to search for contraband founded on probable cause implicitly
carries with it the limited authority to detain the occupants of the premises while a proper search
is conducted.” Michigan v. Summers, 452 U.S. 692, 705 (1981). Thus, “[t]he fact that Defendant
was physically detained and handcuffed while the search warrant was executed does not
necessitate a finding that Defendant was under arrest or in ‘custody.’” United States v.
Toumasian, 2011 WL 3798223, *10 (N.D.Ga.), adopted, 2011 WL 3738980 (N.D.Ga. 2011).
“[D]ecisions in this circuit have emphasized that in the absence of actual arrest, an
interrogation is not ‘custodial’ unless the authorities affirmatively convey the message that the
defendant is not free to leave”. United States v. Mitchell, 966 F.2d 92, 98 (2d Cir. 1992).
Significantly, Montalvo was expressly advised twice at the NYSP barracks that he was not7
under arrest and that he was being detained while the search warrant was executed. October 2,
2013 hearing transcript [181], pp. 16-17, 24. Although being handcuffed is “generally
recognized as a hallmark of a formal arrest” (Newton, 369 F.3d at 676), Montalvo’s handcuffs
were removed. Furthermore, Investigator Rondon was also not armed during his interactions
with Montalvo (October 2, 2013 hearing transcript [181], p. 17) and their discussions did not
focus on Montalvo being a suspect or concern criminal activities.
SA Flowers’ report (gov. ex. 2 [174-2]) states that before Montalvo was transported to7
the NYSP barracks, he advised him that he was being detained and not under arrest (id., p. 1).
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However, the fact that Montalvo was transported to the NYSP barracks and was
separated from his family points toward him being in custody. See United States v. Hamilton,
2012 WL 1029450, *4 (W.D.Ky. 2012) (“Forcefully separating a [defendant during the
execution of a search warrant] for questioning during the search also increases the chances of
custodial interrogation”). Although this is a close call, on balance I conclude that Montalvo was
not in custody prior to being Mirandized.
Moreover, even if Montalvo had been in custody, nearly all of his pre-Miranda
statements were not the product of an interrogation. “Miranda safeguards come into play8
whenever a person in custody is subjected to either express questioning or its functional
equivalent ”, which includes “any words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 300-01
(1980). The functional equivalent test “focuses primarily upon the perceptions of the suspect,
rather than the intent of the police”. Id. at 301. However, “[a]ny knowledge the police may have
had concerning the unusual susceptibility of a defendant to a particular form of persuasion might
be an important factor in determining whether the police should have known that their words or
actions were reasonably likely to elicit an incriminating response from the suspect.” Id. at 302
n.8.
On two occasions, Montalvo was asked if there was anything in the vehicle that
the officers should know about. October 2, 2013 hearing transcript [181], pp. 16-17, 26. These
Montalvo does not specifically identify any questions that he contends constituted8
interrogation.
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questions were reasonably likely to elicit an incriminating response from Montalvo, and if it is
determined that Montalvo was in custody, should be suppressed. Indeed, the government
appeared to concede this at the March 17, 2014 oral argument.9
Beyond these two statements, Montalvo’s statements were either: 1) volunteered,
which “are admissible even though Miranda warnings were not provided”, United States v.
Jacobson, __F.Supp.2d __,2014 WL 962227, *15 (E.D.N.Y. 2014); 2) made in response to
routine or pedigree questions, which do not constitute interrogation (see United States v.
Thomas, 961 F.Supp. 43, 45 (W.D.N.Y.1997) (Arcara, J./Foschio, M.J.) (“Routine questions,
innocent of any investigative purpose, do not pose the dangers Miranda was designed to check”);
United States v. Rodriguez, 356 F.3d 254, 259 n. 2 (2d Cir. 2004) (“information solicited
through routine questioning of arrested persons by law enforcement officers at the booking stage
does not implicate the protections of Miranda”); United States v. Adegbite, 846 F.2d 834, 839
(2d Cir. 1988) (“the solicitation of information concerning a person’s identity and background
does not amount to custodial interrogation prohibited by Miranda”)); or 3) or were the product of
polite conversation between Montalvo and Investigator Rondon, which also does not constitute
interrogation. See United States v. Tail, 459 F.3d 854, 858 (8th Cir. 2006) (“Polite conversation
is not the functional equivalent of interrogation”); Mickey v. Ayers, 606 F.3d 1223, 1235 (9th
Cir. 2010), cert. denied, __ U.S.__, 132 S.Ct. 419 (2011) (“Casual conversation is generally not
The government acknowledged that on the “two or three occasions prior to the recovery9
of the drugs where he asked if there are any drugs and Montalvo issued a denial, that was pre-Miranda. I
suppose . . . if the court finds he is in custody that is something that can be construed as interrogation
because it focused on drugs, but there was a denial in any event, it is certainly not something I am not
going to be introducing at trial”. Unofficial chamber’s transcription of the March 17, 2014 oral argument.
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the type of behavior that police should know is reasonably likely to elicit an incriminating
response”).
Therefore, I recommend that Montalvo’s motion to suppress his pre-Miranda
statements be denied.10
B. Were Montalvo’s Statements Voluntary?
“The government bears the burden of demonstrating that the defendant’s
statements were voluntary.” United States v. Siddiqui, 699 F.3d 690, 707 (2d Cir. 2012), cert.
denied, __ U.S.__, 133 S.Ct. 2371 (2013). “To determine whether a defendant’s statements
were made voluntarily, courts look to the totality of the circumstances surrounding the
statements.” Id. “In applying the totality of the circumstances test, those factors that a court
should consider to determine whether an accused’s confession is voluntary center around three
sets of circumstances: (1) the characteristics of the accused, (2) the conditions of interrogation,
and (3) the conduct of law enforcement officials”. Greenv. Scully, 850 F.2d 894, 901-02 (2d
Cir.), cert. denied, 488 U.S. 945 (1988).
Montalvo argues that “[i]n a brief period of time the allegations against [him]
went from speeding, to a search warrant, to a drug charge to discussion of murders” and that
“[t]his type of escalation . . . was intended to overbore [his] will and render his subsequent
statements not self-determined”. Montalvo’s Post-Hearing Memorandum of Law [191], p. 3 of
3. The government responds that “there is no evidence that the officers coerced any of the
Since I have concluded that Montalvo was not subjected to a custodial interrogation prior10
to being advised of his Miranda warnings, it is unnecessary for me to determine whether the failure to
initially provide him with Miranda warnings rendered Montalvo’s postwarning statements inadmissible.
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defendant’s statements, or that they otherwise created circumstances calculated to undermine his
free will”. Government’s Post-Hearing Memorandum of Law [182], p. 22. I agree with the
government.
Although this was an orchestrated encounter with Montalvo, I credit Investigator
Rondon’s testimony that no threats or promises were made to Montalvo, and that the questioning
promptly ceased upon Montalvo’s request for counsel. October 2, 2013 hearing transcript [181],
p. 55. The fact that Montalvo was asked whether he would be willing to help himself by sharing
his knowledge of criminal activities (id., pp. 42-43) does not render his subsequent statements
coercive. “Certainly, statements to the effect that it would be to a suspect’s benefit to cooperate
are not improperly coercive. . . . Statements such as these are merely common sense factual
observations.” United States v. Ruggles, 70 F.3d 262, 265 (2d Cir. 1995), cert. denied, 516 U.S.
1182 (1996). See United States v. Tutino, 883 F.2d 1125, 1138 (2d Cir. 1989), cert. denied, 493
U.S. 1081 (1990) (It is not coercive for law enforcement “to discuss with [a defendant] the
evidence against him and the reasons why he should cooperate”); United States v. Crosby, 2010
WL 3304272, *4 (W.D.N.Y. 2010) (Arcara, J./Scott, M.J.) (“Even if [the defendant’s] statement
was made in response to the officer’s question whether Peace wanted to ‘help yourself out’ . . .,
that statement was not the product of coercion”).
While Montalvo became emotional when the discussion turned to the murders of
Nelson and Miguel Camacho, nothing in the record indicates that the tenor of the questioning
became threatening or even accusatorial. Indeed, Investigator Rondon was trying to console
Montalvo and keep him calm. October 2, 2013 hearing transcript [181], p. 55. Therefore, I
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conclude that Montalvo’s statements were voluntary, and recommend that his motion to suppress
his November 19, 2011 statements be denied.
CONCLUSION
For these reasons, I recommend that Montalvo’s motion to suppress his
November 19, 2011 statements (Spitler Affidavit [127], ¶3) be denied.
Unless otherwise ordered by Judge Arcara, any objections to this Report and
Recommendation must be filed with the clerk of this court by May 5, 2014 (applying the time
frames set forth in Fed. R. Crim. P. (“Rules”) 45(a)(1)(C), 45(c), and 59(b)(2)). Any requests for
extension of this deadline must be made to Judge Arcara. A party who “fails to object timely . . .
waives any right to further judicial review of [this] decision”. Wesolek v. Canadair Ltd., 838 F.
2d 55, 58 (2d Cir. 1988); Thomas v. Arn, 474 U.S. 140, 155 (1985).
Moreover, the district judge will ordinarily refuse to consider de novo arguments,
case law and/or evidentiary material which could have been, but were not, presented to the
magistrate judge in the first instance. Patterson-Leitch Co. v. Massachusetts Municipal
Wholesale Electric Co., 840 F. 2d 985, 990-91 (1st Cir. 1988).
The parties are reminded that, pursuant to Rule 59(b)(2) of this Court’s Local
Rules of Criminal Procedure, “[w]ritten objections . . . shall specifically identify the portions of
the proposed findings and recommendations to which objection is made and the basis for each
objection, and shall be supported by legal authority”, and pursuant to Local Rule 59(b)(3), the
objections must include “a written statement either certifying that the objections do not raise new
legal/factual arguments, or identifying the new arguments and explaining why they were not
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raised to the Magistrate Judge”. Failure to comply with these provisions may result in the district
judge’s refusal to consider the objection.
DATED: April 16, 2014
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
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