Cleber Rocha wants money laundering evidence suppressed
With tens of millions of dollars in stolen Ponzi money on the line, the Department of Homeland Security agents who arrested Cleber Rene Rizerio Rocha had to move fast.
Rocha, better known as the TelexFree mattress money mule, was caught trying to launder stolen investor funds on behalf of Carlos Wanzeler and his nephew, Leonardo Casula Francisco.
Casula, like his uncle Carlos Wanzeler, is a fugitive hiding out in Brazil. He was indicted along with Rocha on two counts of money laundering back in March.
Facing up to twenty years in prison if convicted, Rocha is now asking that evidence obtained from his cell phone and interrogation be suppressed.
A sixteen page memorandum filed in support of Rocha’s motion claims Rocha’s post-arrest interrogation was unlawful. He also claims a search performed on his cell phone was unconstitutional.
On January 4th, several hours after he handed over a suitcase stuffed with $2.2 million dollars to a government informant, Rocha (right) was arrested.
Rocha and his wife left a BestBuy store in Framingham between 3 and 4 p.m. that day.
As they approached their car, approximately twelve agents approached, speaking English (which Rocha did not understand), and the agents handcuffed Rocha.
He told the agents that he did not speak English. The agents approached him and removed his wallet and cell phone from his pants pockets.
They also went over to his wife, took the purse she was holding and removed Rocha’s passport.
The agents left Rocha beside the car in handcuffs for approximately 20 minutes, and he worried about what would happen to his wife, because she does not speak English and she does not know anyone in the United States.
Rocha told the agents that he needed to access his cell phone, to get a phone number so his wife could call a friend who could pick her up.
An agent motioned for Rocha to use his password to unlock the cell phone.
After Rocha’s wife had the contact information for a friend, the agent, without permission or consent, changed the settings on the cell phone in order to remove the password requirement.
After fifteen additional minutes, the law enforcement agents hauled away Rocha and the rental car.
Rocha’s wife was left at the scene, with Rocha claiming they were both “terrified”.
The federal agents brought Rocha to a DHS office and placed him in a holding cell.
The agents then moved Rocha to an interrogation room. At approximately 5:42 p.m. on January 4, 2017, approximately five or six agents began to interrogate Rocha.
The interrogation was video recorded, and the government has produced a copy of the video, which reveals the following information.
Agent Del Figueredo served as an interpreter during the interrogation, as Rocha understands and speaks only Portuguese.
Del Figueredo’s interpretation was marred by his use of a broken mix of English, Spanish, and Portuguese.
His failure to interpret both sides of the discussion in fluent Portuguese led to many inaccuracies and confusion that is critical to resolving the issues raised in this motion.
Most importantly, the video recording reveals that during the first fourteen minutes of the interrogation Rocha stopped answering questions and asked for an attorney at least five times.
Despite Rocha’s requests for an attorney, the agents continued to question and threaten him and to make him promises of leniency in exchange for his cooperation.
For the first fourteen minutes of the interrogation, the agents repeatedly ignored his requests for counsel and continued the interrogation in violation of his constitutional rights.
Finally, at 5:56 p.m., fourteen minutes after the interrogation began, the agents stated that the interrogation was terminated because Rocha invoked his right to an attorney.
Incredibly, the government never honored Rocha’s request for counsel and at no time was Rocha given an opportunity to speak with an attorney or anyone else.
Instead, after a short break, the agents continued to interrogate Rocha, violating his right to counsel, in order to illegally obtain statements and other evidence.
During the 40-minute period when the video camera was not recording, Rocha was left alone in the interrogation room for approximately 30 minutes.
He was nervous, scared, and crying.
After 30 minutes, two agents returned to the interrogation room.
They gave Rocha a glass of water, and they asked if he was okay, because he had been very emotional and had been crying heavily.
At that point, the two agents disregarded Rocha’s previous invocation of the right to counsel, and the agents made a series of threats and promises to break Rocha’s will and coerce him to continue with the interrogation.
Among other things, the agents told Rocha that he was charged with money laundering and was facing 20 years in prison in the U.S.
They told him that he had an opportunity to help himself, but he had to act now, otherwise, Wanzeler and Casula might move the rest of the cash and Rocha would not be able to help the agents in the future.
The agents also promised Rocha that if he cooperated and told his story then he would be reunited with his wife “that night.”
It was through the combination of threats and promises that the agents coerced Rocha to reverse his earlier request for counsel and continue speaking with the agents.
The video recording resumed at 6:37 p.m. (leaving a forty minute gap with no video recording).
During the first few minutes of the continued interrogation, the agents read Rocha his rights, and he purportedly waived his rights and agreed to speak with the agents without the assistance of an attorney.
The agents then interrogated Rocha for approximately 47 minutes, until 7:24 p.m.
During that time, Rocha described his dealings with Casula and his role in transferring the suitcase with $2,200,000 of cash.
Rocha also told the agents about an apartment, which contained additional cash of approximately $20,000,000.
Rocha signed a form that purported to give his consent for the agents to search the apartment.
Rocha described the location of the apartment, and told the agents that the key to the apartment was in the car which had been seized earlier that day.
Based on the statements and information provided by Rocha, the agents conducted a warrantless search of the apartment and seized more than $17,000,000 in U.S. currency.
In a nutshell, Rocha confessed everything and now, facing twenty years in prison, wants to take it all back.
The statements Rocha made after his January 4, 2017 arrest should be suppressed because the government agents obtained the statements in violation of Rocha’s Fifth Amendment right to counsel.
Similarly, all evidence derived from the illegally obtained statements should also be suppressed because such evidence is “fruit of the poisonous tree.”
Further, any evidence obtained from Rocha’s cell phone should be suppressed, because the agents seized and searched the cell phone without a warrant and without consent.
Rocha was confused and terrified.
He was threatened with twenty years in prison and threatened with continued separation from his wife – who was left alone in a parking lot, in a foreign country, where she did not speak the language and only had one person she could call for a ride and hopefully a place to spend the night.
The agents also promised that they would help him, if he helped them.
The agents wanted to know where the rest of the money was, and if Rocha cooperated, then they would help him.
I’m not here to make excuses for federal agents potentially bungling up an interrogation and gathering of evidence, but I think this is all a bit too convenient.
Having already confessed under interrogation, that Rocha was working on behalf of Carlos Wanzeler to launder stolen Ponzi funds is beyond doubt.
And what, now a Judge is supposed to ignore all of that and send him on his merry way?
If Rocha’s motion is granted, I suppose it will come down to whether the DHS has enough to put him away regardless.
Admittedly I’m not familiar with how these sorts of situations play out. But with clear evidence of a crime having been committed I’m finding it hard to reconcile a Judge granting Rocha’s motion, at least not in full.
The government has yet to respond to Rocha’s motion. Nor has an evidentiary hearing date been set.
A Final Status Conference previously scheduled for June 16th was cancelled on June 15th. An Initial Pretrial Conference has now been scheduled for June 26th.
Update 20th September 2017 – Rocha’s suppression motion was denied at a hearing held on September 15th.
A Joint Status Report is due by September 29th, which will also include a proposed trial date.
If the evidence was not obtained properly, then yes, a lot of the evidence can be suppressed.
That doesn’t mean Rocha will get to go free. It depends on what ELSE did DHS have on him.
The money found, plus the intercepted communications should be enough to convict him, even without his confession.
This motion to suppress is typical in big stakes cases. Prosecutors usually have a backup plan.
Rocha is claiming the apartment was searched illegally, as permission to search it was obtained via interrogation (no warrant).
The intercepted communications might be enough, but Rocha wants everything obtained via the interrogation and phone search suppressed.
I suppose there’s still the $2.2 mill he gave to the informant, plus whatever the informant can provide.
Also have to point out that interrogation never works like it is in the movies: the suspect asks for attorney, and cops shut up and walk out. It’s NEVER like that in real life.
Police (or DHS agents) can make remarks, ask OTHER questions, make general observations, etc. even after the suspect invokes right to silence and right to counsel.
Furthermore, right to silence and right to counsel are SEPARATE rights (indeed, they are separate Amendments). If Rocha demanded attorney, but didn’t claim silence, they can keep interrogating him.
Another thing to note is “tangible evidence” obtained despite Miranda violations can still be used. DHS won’t give up the millions found “just because” they didn’t read Rocha all his Miranda rights.
There is no doubt that Rocha is in “custody”. But we’ll see what does DHS say about this motion.
Rocha waived his Miranda rights when he agreed to spill the beans to the agents (second half of the interrogation after the break).
He may or may not win this one.
US vs Patane (2004) is one such case. Patane may have violated a restraining order as a convicted felon. Officer received tip that Patane may have a weapon (illegal for convicted felons).
Patane was taken into custody, and his rights were being read when he interrupted claiming he knew his rights. Cops ask Patane about his gun, he confessed he does have one, and the cops recovered it.
At his trial, he raised that since his Miranda rights were not read completely, the gun should be suppressed as it was violation of Miranda. Court disagreed, as suspect gave up the information voluntarily.
Whether it applies to this case remains to be seen. But taking a guess at how DHS works, I’d say they already planned to raid Rocha’s house, and his confession is merely icing on the cake and does not in itself automatically means motion to supress will succeed.
But that is AFTER he chose to invoke his Miranda rights. If he claimed he was sufficiently intimidated, he can claim his waiver was through intimidation.
Oh they’re definitely going for that.
*violins play in the background*
Rocha’s memorandum paints him as a country bumpkin from Brazil caught up in something he doesn’t understand. Poor guy was terrified when he was arrested, cried a river and everything. And his poor wife!
Article updated with news of Rocha’s suppression motion being denied.