DAVID BRIONES, U.S District Judge
On this day, the Court considered Defendant Veronica Muniz-Hernandez's "Motion to Suppress Statements and Derivative Evidence," filed on September 15, 2000, in the above-captioned cause. The Government filed its Response on September 27, 2000. That same day, the Court held a hearing on the Motion. Plaintiff then filed a "Supplemental Brief in Support of Motion to Suppress" on October 6, 2000, and an "Amended Supplemental Brief in Support of Motion to Suppress" on October 10, 2000. The Government filed their Response on October 13, 2000. After due consideration, the Court is of the opinion that the motion should be granted for the reasons that follow.
FACTS
On July 24, 2000, at approximately 2:35 p.m., two women driving a 1992 Chevrolet pick-up truck bearing Mexico license plates entered the United States at the Paso del Norte Port of Entry ("POE") in El Paso, Texas. The driver of the vehicle, Veronica Muniz-Hernandez ("Muniz"), and the passenger, Flor Idalia Rascon-Amador ("Rascon"), both Mexican citizens holding valid border crossing cards, were questioned by United States Immigration and Naturalization Service ("INS") Inspector Desiree Clemmens ("Inspector Clemmens"). Inspector Clemmens referred the vehicle and its passengers to Customs inspectors in the Customs Secondary Area. The car was subjected to an intensified visual inspection as well as a canine run through the vehicle. Inspectors, noticing signs of recent work on the gas tank area, tapped the gas tank and heard an unusually dull sound. A fiber optic camera revealed packages inside the tank which were later determined to be forty-eight compressed bundles of marijuana, with a gross total weight of 90.5 pounds. At this point, the Customs inspectors summoned Special Agent Yvette Rodriguez ("Agent Rodriguez"), the primary duty agent that day, who was at the Ysleta POE, working on another case.
Agent Rodriguez made her way to the Paso Del Norte POE, arriving at 5:50 p.m. At 7:35 p.m., following some preliminary investigation, Agent Rodriguez, accompanied by Agent Daryl White ("Agent White"), began to question Rascon about the marijuana. After voluntarily waiving her Miranda rights, Rascon recounted to the two agents that she had been invited by Muniz to go shopping at Wal-Mart in El Paso. She said that Muniz had been given money by her husband, Luis, whose last name Rascon did not know, adding that the two left from Muniz's home and came straight to the Paso Del Norte POE. Rascon maintained that she knew nothing about the drugs.
At 10:05 p.m., Agent Rodriguez, accompanied again by Agent White, began questioning Muniz, in Spanish, about her knowledge of the marijuana. After being advised of her Miranda rights, Muniz signed an advice-of-rights form, stating that she understood her rights and was waiving them voluntarily. At the suppression hearing, Agent Rodriguez, the only witness to testify, stated that she had conducted the interview in Spanish, adding that she is a native speaker of Spanish. For that reason, she believed that Muniz understood her rights as they were explained to her. Agent Rodriguez further stated that she had no reason to doubt Muniz's capabilities; Muniz seemed to understand what was transpiring throughout the interview, although Agent Rodriguez did note that on occasion Muniz would ask that things be repeated, saying that she did not understand what Agent Rodriguez was telling her. Agent Rodriguez testified that Muniz was never threatened or intimidated by any of the agents and that no promises were ever made regarding her sentence or conviction.
Agent Rodriguez explained to Muniz the possible criminal charges against her, noting that Muniz was facing a potential of twenty years in prison. By way of accounting, Agent Rodriguez told Muniz that she could be sentenced for up to five years on charges of importing a controlled substance, pursuant to 21 U.S.C. § 952(a); five additional years on charges of possessing a controlled substance, pursuant to 21 U.S.C. § 841(a); five years for conspiring to import a controlled substance, pursuant to 21 U.S.C. § 963; and finally, five years for conspiring to possess a controlled substance, pursuant to 21 U.S.C. § 963, for a total of twenty years if such sentences were to be served consecutively. Agent Rodriguez then advised Muniz that, in her experience, individuals involved in drug smuggling investigations who cooperate with the investigators receive a more lenient sentence than those who do not cooperate.
The Government now admits that the statements were false but avers that they were made in good faith and not with the intent to mislead. The Court adds that sentencing on multiple counts of a conviction usually does not run consecutively. See UNITED STATES SENTENCING COMMISSION GUIDELINES MANUAL § 5G1.2 (2000).
Muniz told the agents that she was married, but was currently separated from her husband, whose real name she identified as Alfredo Rodriguez. She said she had two children and that she worked at a Maquiladora in Mexico. Luis Perez, her boyfriend of six months, had, according to Muniz, given her the truck and $400 to go shopping for her children. She told the agents that her boyfriend always gave her money, but that she did not know where the money came from. She never suspected there was marijuana in the truck. Upon further questioning by the agents and after Agent Rodriguez reminded her of the seriousness of the charges she faced, Muniz then stated that she was to leave the truck at Silva's grocery store, leave the keys under the seat, and return to Juarez walking over the Stanton Street bridge.
At this point in the interview, Agent White left the room and Special Agent David Regalado ("Agent Regalado") joined the interview. He explained to Muniz that he only wanted to hear the truth, adding to his admonition examples of stories that INS and Customs agents frequently hear when they apprehend people on the bridge bringing across controlled substances. At this point, Muniz changed her narrative and told the agents that she was to be paid $300 to cross the truck. She said that she thought there might be drugs in the truck because no one would pay $300 just to cross a truck if the truck did not have something in it. She further stated that she had been recruited for the job on July 24, 2000, by Luis Perez, whom she also identified as "el Cholo" and who she said had contacted her on her cellular telephone. Finally, Muniz stated that Rascon had merely accompanied her in order to go to Wal-Mart and that Rascon knew nothing about the drugs.
Soon thereafter, however, Muniz retracted her story, telling the agents that she had concocted the story because she knew that it was what the agents wanted to hear. In fact, Muniz said, she was going to Wal-Mart, as she originally claimed, and she had never suspected there could be marijuana in the car. When asked why she had retracted her story, Muniz said that Agent Regalado had asked for the truth, and that was the truth she thought he wanted to hear. Later, Muniz again changed her narrative and told agents that she was being paid to deliver the truck to Silva's grocery store, and that she was to receive $300 for the job.
On August 2, 2000, the Grand Jury charged Defendant in a two-count indictment with importing a controlled substance and possessing with intent to distribute a controlled substance. The instant Motion to Suppress followed.
DISCUSSION
Defendant having made a claim of involuntariness, the burden falls to the Government to show by a preponderance of the evidence that Defendant voluntarily waived her rights and that her statements were made voluntarily. See United States v. Restreppo, 994 F.2d 173, 183 (5th Cir. 1993). "A confession is voluntary if, under the totality of the circumstances, the statement is the product of the accused's free and rational choice[,]" id. (internal quotation marks removed) (quoting United States v. Doucette, 979 F.2d 1042, 1045 (5th Cir. 1992)), "in the absence of official overreaching, in the form of either direct coercion or subtle psychological persuasion." Id. Among other factors, a court should take into consideration the following: (1) the time elapsed time between arrest and confession; (2) the defendant's understanding of the nature of the offense; (3) whether the defendant knew she need not speak; (4) whether the defendant knew she had the right to have an attorney present; and (5) whether the defendant actually had counsel at the time she made a statement. See 18 U.S.C.A. § 3501(b) (West 1985); see also United States v. Perez-Bustamante, 963 F.2d 48, 51 (5th Cir. 1992). While no one factor is conclusive, in determining whether a confession is the product of a free will courts also consider inter alia the accused's level of intelligence, education and sophistication; any official coercion or threats; and any promises or representations made to the accused. See Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961).
In the case at hand, Defendant makes no assertion of undue delay in her interrogation so as to create a presumption of involuntariness, nor does she maintain that she was not advised of her right to remain silent or to consult with an attorney. Defendant does argue, however, that Agent Rodriguez's incorrect assertion that Defendant was facing a sentence of twenty years clouded Defendant's understanding of the nature of the offense. Defendant avers that, while she knew she was suspected of importing controlled substances, she did not know what such charges might entail. Hence, Agent Rodriguez's admonishment, combined with the statement that her cooperation would most likely result in a reduction of her sentence, suggested to Defendant that failure to confess would result in twenty years of imprisonment. Feeling tremendous apprehension about serving such a long sentence, Muniz asserts, she confessed. She now maintains that the misleading information regarding her possible sentence had a coercive effect on her decision-making process, rendering her confession involuntary.
The Fifth Amendment and the Miranda doctrine seek to protect the public from official coercion. "The sole concern of the Fifth Amendment [privilege], on which Miranda was based, is governmental coercion. . . . The voluntariness of a waiver of this privilege has always depended on the absence of police overreaching, not on `free choice' in any broader sense of the word." Colorado v. Connelly, 479 U.S. 157, 169, 107 S.Ct. 515, 523, 93 L.Ed.2d 473 (1986). Thus, the inquiry here is whether Muniz's statements were the result of official overreaching. In other words, the question is whether Agent Rodriguez's misstatement amount to police coercion, such that Defendant's confession was no longer voluntary.
Coercion sufficient to render a statement involuntary can derive from threats, intimidation, or other deliberate means to break the defendant's will. Threats to remove children from the accused's custody, for example, have been deemed coercive by the Supreme Court, especially when combined with strong suggestions of leniency in exchange for confession. See Lynum v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 920, 9 L.Ed.2d 922 (1963). More subtle forms of intimidation proscribed by the courts include official efforts to discourage consultation with a lawyer, as well as misrepresentations which distort "the alternatives among which the person under interrogation is being asked to choose . . . [and] exaggerate the consequences of one of the alternatives — not confessing." Weidner v. Thieret, 866 F.2d 958, 963 (7th Cir. 1989).
In the case at hand, Muniz's confession was made after Agent Rodriguez had informed her that she could receive a sentence four times the statutory maximum and that the United States Attorney prosecuting her case and the federal judge who would eventually sentence her take into consideration a defendant's good faith efforts to cooperate with authorities. In other words, Muniz was made to understand that she would not get any leniency, and hence would receive the full twenty-year sentence, if she did not confess, or at the very least, cooperate. Muniz was evidently painfully aware of this choice as she maintained even during the interrogation that she was confessing only because she felt pressured to do so.
The Court notes that this alone would not invalidate a confession, as it is well-established that government agents may discuss cooperation with a defendant without rendering the resulting confession involuntary. Indeed, "Government agents may initiate conversations on cooperation, they may promise to make a defendant's cooperation known to the prosecutor, and they may even be able to make and breach certain promises without rendering a resulting confession involuntary." Miller v. Fenton, 796 F.2d 598, 609 (3d Cir., 1986).
The Government avers that Agent Rodriguez spoke under the good faith, albeit mistaken, belief that Defendant could indeed receive twenty years in prison. Accordingly, the Government maintains that there was no official overreaching since Agent Rodriguez acted without the intent to coerce Muniz into a confession. The Court tends towards Defendant's position that agents are trained in interrogation techniques and that they should have a good knowledge of the punishment range for the kinds of offenses which they handle. Even if Agent Rodriguez admonished Muniz with the honest belief that she was giving her accurate information, the Court finds that Agent Rodriguez, as the agent in charge, should have known better.
In determining whether there was official overreaching, the defendant's mental condition is relevant, although not the Court's primary concern. See United States v. Raymer, 876 F.2d 383, 386-87 (5th Cir. 1989). Rather, as noted above, the focus is on the presence or absence of official coercion. See Connelly, 479 U.S. at 169, 107 S.Ct. at 523. Nevertheless, "[a] defendant's mental condition still properly figures into the voluntariness calculus. Police exploitation of the mental condition of a suspect, using `subtle forms of psychological persuasion,' could render a confession involuntary," Raymer, 876 F.2d at 386-87. Muniz argues that she believed that, short of a confession, she would be locked away and separated from her children for the next twenty years. She maintains that her lack of education and previous experience with the criminal law or with the Customs Service made her especially vulnerable to believing any statement made by the interrogating authorities. Given her background, Muniz avers, Agent Rodriguez's misstatement had an especially coercive effect. The Court agrees. The admonishment that Muniz faced a very long period of incarceration combined with the promises that her cooperation would result in official leniency were sufficiently misleading to render Muniz's confession involuntary.
After due consideration of the evidence and arguments presented, and having found that Agent Rodriguez did in fact overreach when she admonished Defendant that she faced a prison sentence four times the statutory maximum, the Court is of the opinion that the instant motion should be granted.
Accordingly, IT IS HEREBY ORDERED that Defendant Veronica Muniz-Hernandez's "Motion to Suppress Statements and Derivative Evidence" is GRANTED.
IT IS FURTHER ORDERED that Defendant's statements are hereby SUPPRESSED to the extent that they were made after Agent Rodriguez informed Muniz that she could receive up to a 20-year sentence.