Camacho v. Cannella et al
FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge Robert F. Castaneda. (vm1)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
ELIAS R. CAMACHO, JR.,
UNITED STATES OF AMERICA,
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On this day, the Court considered the testimony and evidence presented by Plaintiff Elias R.
Camacho Jr. and Defendant United States of America at a trial conducted before the Court from
September 15, 2014 to September 18, 2014, in the above-captioned cause. The issue before the
Court at trial was Plaintiff’s claim for false arrest and imprisonment pursuant to the Federal Tort
Claims Act (“FTCA”). After careful consideration of the testimony and evidence, the Court makes
the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure
Findings of Fact
Tuesday, January 12, 2010
On Tuesday, January 12, 2010, at approximately 10:45 a.m., a robber entered the First
Federal Bank (“the bank”) on the west side of El Paso, Texas, walked around the lobby, and
Any findings of fact more properly characterized as a conclusion of law shall be adopted
as such, and any conclusion of law more properly characterized as a finding of fact shall be
adopted as such.
then walked out. 2R78, 87; JX1; PX12.2 He entered the bank again at approximately 11:15
a.m., walked up to a teller station, stated he forgot his identification, and left again. 2R48,
74-75; 3R121-124; PX10-11. He then returned a few minutes later, went up to the same
teller station with a withdrawal slip, and robbed the bank at approximately 11:22 a.m. 2R1819; JX3; PX10-11. In the robbery, $1,833 were stolen. JX15:2; PX10:3. The Federal
Bureau of Investigation’s (“FBI”) Violent Crimes Task Force in El Paso, Texas investigated
the First Federal Bank Robbery. 1R26-30. FBI Special Agent Sharon Cannella (“SA
Cannella”) was assigned to be the lead agent3 for the robbery investigation. 1R30, 1R286287, 295.
SA Cannella interviewed Melissa Ramos (“Ramos”), the teller involved in the robbery, and
Blanca Chavez (“Chavez”), a bank employee who witnessed the robbery, both of whom
provided a description of the robber. 2R28-37. Ramos described the robber as a man around
his forties between 5'4" and 5'5" tall and 130-140 pounds, with an average build, and a light
complexion. 2R35, PX10. Chavez described him as a Hispanic man between 35 and 40
years old and 5'3" and 5'4" tall, with a light complexion and an average build. 2R37; PX11.
Citations to the trial transcript shall be in the following form: [volume number]R[page
number(s)]. Citations to the trial exhibits shall be in the following format: [Exhibit Folder: Joint
Exhibits (“JX”), Plaintiff’s Exhibits (“PX”), Defendant’s Exhibits (“DX”)][Exhibit
Although SA Cannella disputed this title repeatedly at trial, Task Force Officer Arturo
Ruiz and SA Lorenzo Perez and SA Kyle Matthew Casey, and SA Kristen Curtis Hughes all
testified that SA Cannella was assigned as the lead agent for the robbery investigation, and that
other agents help the lead agent and receive assignments from either the lead agent or a
supervisor. 1R 30, 286-287, 295; 2R13; 3R222, 243.
SA Lorenzo Perez (“SA Perez”) interviewed Bernice Mercado (“Mercado”), the customer
service representative teller manager who had been standing with Ramos when the robber
first approached the teller station and said that he forgot his identification. 1R295-302; PX45. Mercado provided the following description of the robber: Hispanic male, 30 to 40 years
old, 5'5" tall, between 160-180 pounds, light skin, a light beard, glasses with no frame, and
arch eyebrows; when she ran to lock the doors after being alerted to the robbery, she saw the
robber leaving in a black car.4 Id.; 2R150.
Task Force Officer Arturo Ruiz (“TFO Ruiz”), with the El Paso Police Department
(“EPPD”), distributed a Special Bulletin to law enforcement, which contained some
surveillance photos of the robber wearing a beanie, and included the following description:
Hispanic man in his late 30’s, between 5’3” and 5’5” tall, with an average build and a light
complexion. 1R34-44; JX3. This description was created from pulling together the
descriptions given by witnesses at the scene of the robbery. 1R33-34. The Special Bulletin
also described the vehicle used in the robbery as a four-door, mid-sized, light-colored car
with tinted windows and paper plates displayed in the rear window. 1R34; JX3. The photos
TFO Ruiz used in the bulletin were obtained from the FBI. 1R36-38; 2R52-53, 59; JX3.
The FBI released a wanted bulletin with photos of the robber to the press, describing the
robber as between 5'3" and 5'5", 35 to 40 years old, with a light complexion; it did not
describe the robber’s weight. 1R48; JX14.
Although SA Cannella indicated that Mercado obtained only a glimpse of the robbery,
the facts show otherwise. See 1R295-302; 2R150, 167-171; 3R120; PX4-5.
The FBI press release did not include photos and included the same description, but
additionally described the robber’s weight as between 130-160 pounds. 1R44-47; 2R60;
Two suspects were brought to the bank for identification and were not identified. 1R50-52.
SA Cannella reviewed the surveillance video at the bank, but only the portion of the video
showing the robber entering the bank around 11:15 a.m. and then exiting the bank after the
robbery at approximately 11:22 a.m., which were the only times reported to her by witnesses.
2R:41-46, 48, 74-78; PX10.
SA Cannella took possession of four disks containing the surveillance video recovered from
First Federal Bank. 2R41, PX12. One disk included video from eight different cameras
situated in the bank. 2R101-103. This footage spanned from 10:15 a.m. to 12:00 p.m. on
the day of the robbery. PX10. The video from the front door showed the robber entering
the bank at approximately 10:45 a.m. and contained a frontal or partial side view of the
robber, who was not wearing a beanie at the time. 2R78, 83-84. The first time SA Cannella
saw the footage of this portion of the surveillance video was when Plaintiff’s counsel played
the video at trial. 2R79-80. During the investigation, she was focusing on the times reported
to her by witnesses. 21R104-118. Additionally, for security reasons, she was only able to
view the video on a designated computer in the FBI office, which was not equipped with the
technology to allow her to switch camera views; she was only able to view the video of the
camera at the back of the bank, the parking area. 2R75, 94, 103-110, 118-122, 131-136;
Wednesday, January 13, 2010
On Wednesday, January 13, 2010, Martha Valles (“Valles”) contacted the FBI, stating that
she had seen a picture of the robber on the news and the internet and that it “looks just like”
Elias Camacho (“Camacho”), her best friend’s ex-boyfriend, with whom she remained
friends. 2R137-142. SA Cannella interviewed Valles telephonically. 2R142. Valles stated
that Camacho does not have an average look, but had very distinct characteristics, including
“Chinese eyes” and a distinct smile. DX9:1. Valles described Camacho as follows: 41-42
years old; between 5'5"-5'6" tall, with a medium build, goatee, glasses, and a black BMW,
but access to a lot of cars. DX9:2. She described him as a “money guy,” going from job to
job, having several businesses that failed, and as the kind of guy who would do research and
know that a bank had been hit several times. DX9:1.
SA Cannella asked TFO Ruiz for his opinion on Camacho as a suspect for the robbery.
1R55-58, 74-75; 2R145-147; JE7. TFO Ruiz emailed that his “big problem is the height and
weight listed on the [driver’s license] and [in the EPPD] records.”5 JX7. TFO Ruiz
informed SA Cannella that records, most recent in 2007, reported Camacho as 5'6"- 5'9" tall,
185-220 pounds. 1R55-58, JX7.
At approximately 11:00 a.m., SA Cannella, accompanied by SA Perez, conducted a “drive
by” of Camacho’s home. 2R149; PX34:2. The “drive by” was conducted to determine
whether any vehicles around the home matched the descriptions of the vehicle used in the
robbery. 2R149-150. Around 5:30 p.m., SA Cannella conducted surveillance for a second
SA Cannella testified that TFO Ruiz’s “big problems” were not “concerns” just
time of Camacho’s home, this time accompanied by SA Kyle Matthew Casey (SA Casey”).
At approximately 6:04 p.m., SA Cannella conducted a ruse by knocking on Camacho’s door
and asking for “Sara.” 1R109, 305; 2R151-154; PX14. After viewing him in person, SA
Cannella concluded that Camacho matched the physical description of the robber. PX14.
She did ascertain that neither the height nor the weight that she observed matched the
consensus description, but, finding him to have a light complexion, SA Cannella was
“convinced that he depicted the individual in the picture, or that there was at least a close
enough resemblance to continue pursuing Camacho.” 2R152-154. SA Cannella did not
conclude at that time that Camacho was the robber.6 2R154. Although TFO Ruiz would
characterize Camacho’s complexion as medium and not light, it was his opinion that
Camacho met the parameters of the consensus description. 1R67-68. SA Kristen Curtis
Hughes (“SA Hughes”) also described Camacho’s complexion as dark. 3R250. SA Perez
also described Camacho’s complexion as medium to dark. 1R313. The Court finds that
Camacho’s complexion is medium to dark.
Thursday, January 14, 2010
On Thursday, January 14, 2010, the FBI conducted surveillance of Camacho, during which
time he made two separate visits to the same Capital Bank branch in El Paso, making cash
deposits of $111 and $100. 3R:67; JX8.
SA Cannella’s testimony that she did not conclude that Camacho was the robber at that
point conflicts with her sworn probable cause affidavit. 2R154; PX27:3.
FBI agents presented a photo lineup of six photos, including one of Camacho, to Ramos
(PX9, DX2), Chavez (3R238-241, DX1), and possibly a third bank employee, Mercado
(2R:167-171). The photo lineup did not include any other identifying information, such as
height and weight, and such could not be determined from the photos. 1R316; 2R163. The
photo lineup was derived from drivers license pictures, of Camacho and other individuals
chosen because they look similar to Camacho. 3R:126-127. None of the people in the photos
were wearing beanies or glasses. 1R314.
Ramos selected Camacho’s photo out of the lineup immediately and with a high level of
certainty. 1R289-292; 2R170; DX2.
Chavez selected Camacho’s photo out of the lineup “as the person who resembled the man
who robbed” the bank. 1R89; 3R240, 252; DX1. She was, however, not 100% certain that
Camacho was the robber, and she rated her certainty as 8/10, which SA Hughes would have
interpreted to mean that she was fairly certain. 2R170; 3R241-242.
Mercado, the third bank employee, did not make an identification; it is unknown if she was
shown the photo array or declined to look at it. 2R170-171.
Around 3:00 p.m., Camacho was at the drive-thru of a Whataburger with his wife, Veronica
Camacho (“Veronica”). 2R174; 1R59-60. Unmarked cars blocked them in, and then
individuals with guns and badges began screaming at Camacho and his wife. 1R115-116.
The individuals informed Camacho and his wife that they were the police and demanded that
the Camachos put their hands through the car windows. Id. Officers pulled Camacho and
Veronica out of the car. 1R116. Camacho was frightened. Id.
The officers placed Camacho in the back of an unmarked vehicle and drove to his home.
1R116. The agents ignored Camacho’s pleas for an explanation as to why he was being
arrested. 1R118. Camacho was nervous and scared and threw up. 1R117. Camacho saw
his wife arrive at their home surrounded by agents. 1R119. The officers asked Veronica for
permission to search their home and Camacho quickly yelled to his wife to consent and sign
whatever forms were needed, which she did. 1R119; 2R175.
SA Cannella arrived, held her phone up to Camacho, said “Yeah, it’s you,” and left again
without telling him why he had been arrested. 1R119.
Camacho was then taken to the Pebble Hills Regional Command Center. 2R175. He still had
no idea why he had been arrested. 1R121-122. Finally SA Cannella told Camacho that she
had caught him committing a bank robbery. 1R122.
This Court has already ruled that probable cause existed for Camacho’s arrest on Thursday,
January 14, 2010. Doc. 45:26.
The investigation at Camacho’s home
Agents performed a search of Camacho’s home. 3R66-67. During that search, agents located
a “bank receipt” for $1,622. It was a yellow carbon copy of a business check from a
company named “Copart” made payable to an individual named “Gustavo Espinoza”
(“Espinoza”) in the amount of $1,622, which stated “void if over 6 months from check date”
and had “non-negotiable” stamped on the signature line.7 3R67; JX4 (emphasis added).
Although the government argued that the evidence showed that the agents were
extremely aware that the document was a third party check from Copart to Gustavo Espinosa, SA
Cannella testified that it was not clear what the document was—that it was a receipt of some type
of fiduciary instrument, her notes and report reflect that she asked Camacho about a money order
and cashier’s check, and the record reflects that SA Cannella spent time trying to identify what
The amount of the Copart check ($1,622), combined with the two deposits Camacho had
made to an account at Capital Bank earlier that day ($100 and $111), equaled the amount
stolen in the bank robbery ($1,833). 3R67.
The agents also searched Camacho’s vehicle and found a MapQuest printout providing
directions from Camacho’s house to a business on the west side of town in the vicinity of the
Veronica told agents that she could not remember what they had done, because she was very
frightened; she told them that Camacho had gone to run some errands that morning, but she
was not able to specify hours of when he returned; she told the agents that she and Camacho
had gone out, and had gone over to her mother-in-law’s, but she could not remember exactly;
she could not tell them a precise time when Camacho was home or away. 3R200-201, 211.
Veronica testified that she never told the agents that Camacho may not have come home until
12:30 p.m. on that Tuesday. 3R57, 77, 211. She told agents that Camacho was six months
behind on mortgage payments. 3R56. The agents asked about a computer, and she said they
could take it with them to look at it. 3R211-212.
The Investigation at Camacho Sr.’s home
At approximately 5:00 p.m., agents went to Camacho’s father’s home (“Camacho Sr.”),
where SA Kent Switzer (“SA Switzer”) showed him two of the bank surveillance photos and
asked if the person in the photo was Camacho. 1R233-236; DX16. He told the agents that
type of document it was. See 2R215; 3R68-72; 4R24-25; PX17; PX37. SA Cannella testified
that she believed that the Camachos owned Copart or that Copart is his father’s business, because
the Camachos told her that they work at or with Copart. 2R217. She was not sure why she
thought that; she would have to check her notes to see what they had said about that. Id.
while there was some resemblance, it was not Camacho. 1R235-236. Camacho Sr. stated
that Camacho does wear “beanies” and had recently bought some new glasses. DX16:2.
Camacho Sr. told the agents that he had seen Camacho earlier on Thursday because he had
asked him to stop by and pick up both a copy of a check for $1,622 that needed to be returned
to Copart Salvage Yard (“Copart”) and the $100 that he owed Camacho for helping to return
a stolen vehicle to the United States. 1R237-239; DX16.
Camacho Sr. explained to the agents that: (1) he works with Copart and Espinoza to retrieve
stolen vehicles from Mexico; (2) that the wrecker accidently gave Espinoza the yellow
carbon copy of the check from Copart when he delivered the original check to Espinoza; (3)
Espinoza gave the yellow carbon copy of the check to Camacho Sr. to return to Copart for
their records; and (4) Camacho Sr. asked Camacho to return the document to Copart for him.
1R95, 230-232, 237-239; DX16. Camacho Sr. is a retired police officer with the El Paso
Police Department. 1R93.
Camacho’s mother told agents that Camacho was at her residence twice on Tuesday, at 11
a.m. and then at 2 p.m. 3R64, 76. Camacho Sr. overheard his wife telling the agents that the
person in the surveillance photo was not Camacho. 1R239. When they asked her how she
knew, Camacho Sr. heard her answer “Because I gave him birth.” Id.
When Camacho’s brother, Marco Camacho (“Marco”), a long-time United States Border
Patrol Agent, arrived at Camacho Sr.’s house, the agents showed him the bank surveillance
photos and asked if the man in the photos was Camacho. 1R239, 268-269; DX15. Marco
told the agents that one of the pictures looked a little bit like Camacho, but that Camacho did
not wear glasses like that and did not wear beanies. 1R269. He told them that the other
picture did not look anything like Camacho; he did not see the resemblance. Id. Marco at
no time positively identified the man in the photos as his brother. 1R271. The agent’s report
of the interview stated that Marco “indicated the person in the bank surveillance photograph
looked like his brother.” DX15.8 Marco told the agents that Camacho was having financial
problems and difficulty paying his bills. 3R56; DX15. He said that Camacho has a key to
Marco’s house and is often there when Marco is at work. DX15. The report also indicated
that Marco said he would not be shocked if Camacho robbed a bank; Marco does not recall
saying that and does not think he would have said something like that. Id., 1R272-273.
Camacho was nervous but cooperative with law enforcement: he waived his rights, consented
to searches, agreed to talk, answered questions, and did not ask for a lawyer.9 1R61, 119;
While his home was being searched and his family was being interviewed, SA Cannella, SA
Hughes, and TFO Ruiz questioned Camacho for at least two hours at the Pebble Hills
Regional Command Center. 1R61, 120; 2R177, 180; 3R66. At the time of the interview, SA
Cannella personally believed that Camacho had committed the robbery. 2R182.
During the interview, Camacho continually asserted his innocence, explained in detail the
origins of the carbon copy of the Copart check found in his home and his whereabouts on the
Cannella’s testimony that she was advised that Marco pointed to the picture and said
“That’s my brother” is not supported by the record. 3R75. Defendant did not call SA Lonnie M.
Camacho to testify, but his 302 report states that Marco indicated that the person in the bank
surveillance photograph looked like his brother. DX15.
When asked if Camacho was cooperative, she responded “I would say there was a level
of cooperation.” 2R176.
morning of the robbery. 1R126; 2R178. While Camacho cooperated with the agents, he felt
that the agents were ignoring everything he said, calling him a liar, just trying to get him to
say that he had robbed the bank, and were very unprofessional, calling him “dude” and “bro.”
Whereabouts: Camacho told agents that he was on the east side of El Paso at a company
named Therm-O-Link during the morning of Tuesday, January 12, 2010, to visit Amy
Ramirez (“Ramirez”), a customer. 1R90; 2R186-187, 204; 3R63. Camacho explained to
agents that he spoke to Ramirez about office products and even identified for the agents the
specific products they discussed. 1R125; 2R187. He told SA Cannella about a power outage
that occurred while he was at the business; the lights flickered. 1R125. He also informed SA
Cannella of another interaction he had with a Therm-O-Link employee regarding the
purchase of a special type of tape. 2R187. Camacho repeatedly stated that he could not
remember the exact time that he was at Therm-O-Link, but after SA Cannella suggested a
time frame of 9:30 a.m. to 10 a.m.,10 he stated that he could have been there at that time, but
was not sure. 1R125, 165, 198-199; PX17, 37. He guesstimated that he had been there
approximately 20 minutes. PX17, 37:5. He told her that he went home and emailed Ramirez
a quote for the trash can and tried to find the flat back tape. 1R126, 199. Camacho and
Vanessa then went to Contessa for lunch, left there around 1:30 p.m., and went to his
mother’s house. PX17:4.
It is beyond this Court’s understanding why SA Cannella never asked Camacho about
his whereabouts at the exact time of the robbery and did not tell Camacho exactly when the
robbery occurred. See 1R199-203.
Tuesday & Wednesday: The questioning, answering, or both, did not proceed in
chronological order. PX37. SA Cannella’s handwritten notes from this interview and her
302 report memorializing the interview demonstrate that, regardless of whether at some point
in the interview there was some confusion regarding which day Camacho went to Therm-OLink, it was clarified that he went to Therm-O-Link on Tuesday morning and was with his
brother-in-law at a school function on Wednesday morning. PX37:5; 1R128, 200-201;
3R53, 135-137, 158; PX17:4-5. SA Cannella’s 302 report does not indicate that there was
any confusion regarding whether Plaintiff was at the school event on Tuesday or Wednesday.
PX17:5. After the interview, SA Cannella searched online for information about the school
function and confirmed that it was on Wednesday. 3R57-61.
Westside: SA Cannella testified that Camacho told the agents that he does not go to the west
side. 3R65. The evidence in the record does not bear this out. SA Cannella’s notes
regarding Camacho’s interview reflects that Camacho said he does not go to the west side
“that much.” PX17:5, 37:6. Camacho said that he and Veronica had gone to a delivery
service on Emory, to which the Mapquest printout provided directions, on Wednesday after
the school event and before going to State Line for lunch. Id. Also, the notes do reflect that
his sister lives on the west side. Id.
Finances: Camacho told the agents that he was working five jobs and was having difficulty
paying his bills; he did not say that everything was fine financially. Camacho stated “he has
enough money for everything his family needs. Camacho stated he cannot pay his cell phone
bill but he does not need a cell phone. Camacho stated he could go to his family for money
if he needed the money.” PX 17:6, 37:6-7. Camacho also acknowledged that he was
struggling at INDOFF, but that he was also only giving about 20% effort to his job at
INDOFF. Id. The interview notes reflect discussion of Camacho’s cell phone and estimated
utility costs, his mortgage, and child support; there is no indication that he stated or was
asked whether he was able to pay each individual bill. PX37:8.
Copart check: Camacho explained that he did not have a money order for $1600, but had
a carbon copy of a check for $1600 made out to Gustavo Espinoza, because when the Copart
wrecker driver paid Espinoza for the vehicle, he gave Espinoza the carbon copy as well, and
Camacho Sr. had given Camacho the check to take back to Copart. 1R126-127. He
explained what his father’s company, E.C. Repatriation, does and how they do it. Id;
PX37:4. Camacho explained that Copart brings the vehicles and pays Espinoza, that Copart
charges all the fees to the insurance company, Copart pays for vehicle recovery, and when
the insurance has paid, Espinoza comes to get his check. PX37:4, 10. Camacho explained
that Copart would not pay Espinoza with a money order or a cashiers check. PX37:10. He
also explained that he, “Camacho would not pay Espinoza any money to include, a money
order or cashiers check.” PX17:3. “Copart charges all the fees to the insurance company
when the vehicle is sold. Espinoza pays Camacho, Sr and Camacho Sr pays Camacho.” Id.
At 5:37 p.m., SA Cannella sent the following text to Supervisory Special Agent Hector
Camarillo (“SSA Camarillo”): “Feeling iffy, going 2 try & set up poly, may release &have
show up tomorrow & if doesn’t, get warrant if kent can’t do it now, kent calling polly buddy
to consult[.]”11 2R223; 3R51-52; PX32:2.
Although SA Cannella confirmed that she had felt “iffy” after the Thursday interview,
she also maintained that no information that she had obtained since his arrest weighed in his
favor. See 2R229; 3R83-84.
At approximately 5:42 p.m., the agents released Camacho from custody after he agreed to
voluntarily return for a polygraph examination the next morning. 2R230; PX32:2. TFO Ruiz
testified that SSA Camarillo made the decision to release Camacho on Thursday night,
understanding that Camacho had agreed to return the next day to take a polygraph. 1R70,
130-131. Camacho testified that SA Cannella became visibly upset when SSA Camarillo
entered the room, sat next to Camacho, told him not to worry, that he knew it was not him,
and told him to go home. 1R130-131.
That evening, a number of agents, including SA Cannella, TFO Ruiz, and SA Casey, met to
review the evidence they had gathered in the investigation and to talk about the next steps.
3R77. TFO Ruiz understood that Camacho’s alibi, the Therm-O-Link information, would
be checked out; however, SA Cannella did not make any attempt to contact Therm-O-Link
or ask any agent to perform this task. 1R66, 69; 2R224-229.
At some point,12 SA Cannella learned that Camacho was two months behind on his rent, the
bank had started warning Camacho Sr.— who owned the mortgage on the house—about
foreclosure; Camacho had taken out a second loan on the house for approximately $3-4,000;
Camacho was behind on his child support by about $5,000; and Camacho had received
termination notices from the electric company due to problems paying the bill. 1R189-197,
Friday, January 15, 2010
It is not clear from the record at what point agents discovered these additional financial
On Friday, January 15, 2010, at around 6 a.m., SA Cannella had the carbon copy of the
Copart check, ran a database check of the routing number, and called the bank in an attempt
to vet the information given about the check. 3R:68-72. Based on SA Cannella’s description
of the document, the bank officer she contacted was unable to discern what type of document
it was. Id.
At approximately 9:00 a.m., Camacho reported to El Paso FBI Headquarters for a polygraph
examination. 1R134. He was accompanied by his mother, father, and wife. 1R133, 243.
He appeared voluntarily and without counsel. Upon his arrival, he handed SA Switzer a
receipt for an expenditure he made on January 13, 2010, and a Therm-O-Link business card
for Ramirez, with whom he had met on the morning of January 12th. 1R134-135; 1R243.
Ramirez’s business card contained several ways of contacting her. Specifically, it had her
business phone number and email address and the address for Therm-O-Link, which is 1295
Henry Brennan. 3R162, 168; PX38. The card does not say anything about business hours
or phones answered 24/7. 3R196. Camacho was escorted by SA Switzer from the lobby to
the polygraph room.1R133-135.
At approximately 9:48 a.m., Camacho waived his rights. DX19:2; PX39:2. SA Switzer
spoke to Camacho for some time prior to connecting him to the polygraph machine. 1R136;
DX19:2. No recording or transcript of such interaction, the polygraph, or the subsequent
interrogation, was introduced and SA Switzer did not testify; SA Casey took some
handwritten notes before Camacho failed the polygraph. PX39. SA Cannella watched at
least part of the procedure from outside of the room, but neither she nor SA Casey recall
which parts she saw. 2R230-231; 3R266.
Camacho was very nervous about the polygraph examination. He was afraid the test would
show that he had robbed the bank when he had not. He testified that the agent made him feel
extremely nervous. SA Switzer told Camacho that he would be asked whether he had ever
stolen from anybody that he loved and whether he had ever lied to his loved ones. 1R136.
SA Switzer screamed at Camacho that if he answered yes to either of these questions, the test
would be over. 1R136, 211-212. Camacho understood SA Switzer to be telling him how to
answer these questions, i.e., to lie. 1R136. Camacho was very nervous about the polygraph
examination. Camacho was scared, terrified; he kept thinking he needed to answer the way
SA Switzer was telling him to answer, so that he could take this test and prove his innocence.
SA Switzer explicitly told Camacho to lie for a preliminary test and he did. 1R137.
Camacho was scared, terrified, shaking—so much that SA Switzer yelled at him to stop
moving— and sweating—so profusely that the pads had to be taken off and his skin dried
to proceed. 1R138. Camacho testified that he did lie on the questions SA Switzer had told
him he could not say yes to without cancelling the test, because SA Switzer essentially told
him to. 1R139-140.
Camacho said that he had receipts and people to verify where he was, that “he was with a
customer during the robbery,” that he said “he did not rob the bank, again says has alibi,” and
that on Tuesday at about 9:30 or 9:45 a.m. his appointment cancelled and then he went to
Therm-O-Link at about 10:30 a.m. PX39. Camacho stated that he got to Therm-O-Link
“10:30" or “10:45", that he was there for “15 or 20 minutes,” that “the lights went out,” and
that he went straight home around 11:00 a.m. and emailed Amy a quote for the trash can.
PX39. Camacho stated that he “was never on westside on Tuesday.” PX39:3. SA Casey
noted “11:46 Fails Poly [SA Switzer] begins Interrogation.” Id.; 3R266.
At around 11:46 a.m., SA Switzer told Camacho he had failed the exam and began to
interrogate him. 1R141-143; 3R266; PX39. SA Switzer yelled at Camacho “Well, I know
you’re lying. My machine doesn’t lie. I know you did it.”13 1R141.
SA Switzer continued with the interrogation. Camacho maintained his innocence. 1R141.
SA Switzer told him they needed to start talking with the truth, Camacho said he had been
telling the truth. Id. SA Switzer asked what Camacho had written on the note and Camacho
said “Nothing, I didn’t write any note. I didn’t do a bank robbery.” Id. SA Switzer continued
to ask him why he did it. Id. The questioning went on for approximately 45 minutes. 1R142.
Camacho had asked for SA Cannella twice and the second time SA Switzer went to get her,
stepping outside the room and then immediately both of them stepped back into the room.
Id. SA Cannella said “Dude, you even lied about lying to your parents; I lie to them all the
time.” 1R143. And Camacho said “I didn’t lie; I didn’t do it. You have the card. Please call
Amy.” Id. SA Cannella responded “I don’t need it. I know you did it.” Id. SA Cannella and
SA Casey told Camacho that Marco was a stand-up guy and had already told them Camacho
committed the robbery, and asked Camacho to tell them why. 1R143. Camacho answered
“My brother is an idiot. He knows I didn’t do it. I didn’t do it. You guys are wrong.” Id.
Camacho kept telling SA Cannella “Copart is right down the road. Please go talk to them.
You have Amy’s card. Please.” 1R126, 144. Camacho told SA Cannella that he was at
On cross-examination, Camacho confirmed SA Switzer’s unprofessional conduct.
1R212. Defendant could have called SA Switzer to the stand, but failed to do so. Camacho’s
testimony as to what occurred during the polygraph process was unrebutted.
Therm-O-Link at 10:45, the lights flickered, there was a gentleman filling out paperwork,
putting his mother on his insurance, another man, Chavira, gave him a sample of tape,
Bustamante passed by when the lights all went out; he told her to please call Amy. 1R166.
SA Cannella was present once the initial polygraph part was completed, to be advised of the
results, and then she left again, and returned when she was informed there was a written
statement. 3R81-82. SA Switzer told SA Cannella that Camacho had failed the polygraph,
that the results of the test were indicating deception, and SA Switzer continued with an
After Camacho was led away to take the polygraph test, Camacho Sr. had spoken with SSA
Camarillo. 1R244. They recognized each other from when they worked together at the
EPPD. Id. SSA Camarillo told Camacho Sr. not to worry, that he had seen the surveillance
photo, and knew that the robber was not Camacho. Id. Further, SSA Camarillo told
Camacho Sr. that Camacho would be released after the polygraph examination. Id.
Camacho Sr. mentioned Camacho’s alibi to SSA Camarillo and was told that someone was
already checking out the alibi. Id. After approximately forty-five minutes, SSA Camarillo
returned and asked Camacho Sr. whether there was anything wrong with his son, mentally,
Camacho Sr. said no, and SSA Camarillo left again. 1R245-248. Approximately five hours
later, TFO Ruiz spoke with Camacho Sr. in a little conference room. Id. He told him that
Camacho had failed the lie detector test and that the agents think Camacho hid the money
with some family members. 1R246-247. They asked Camacho Sr. what happened to the
money and told him that an agent, expert in finding hidden money, would be looking into the
family finances. 1R247-248. Camacho Sr. asked about Camacho’s alibi and was told that
it did not work out. 1R247. The agents told Camacho Sr. that Camacho would not be going
SA Switzer wrote up Camacho’s explanation of his actions on the day of the robbery and
prepared a statement, which Camacho signed. 1R144-146; 2R232-233; JX12; DX14. This
statement was also witnessed and signed by SA Cannella and SA Switzer. Id.
In his statement, Camacho said that he arrived at Therm-O-Link between 10:30 a.m. and
10:45 a.m. 2R233. Camacho said he was going to Therm-O-Link in his professional
capacity as an Indoff salesman to establish a sales account with them. JX12. There he met
the Administrative Assistant, Ramirez. Id. Ramirez is in charge of purchasing items for
Therm-O-Link. Id. He and Ramirez discussed the purchase of a trash can. Id. While he
was at Therm-O-Link, a male supervisor also discussed flat back tape with him and provided
a sample of the tape. Id. While Camacho was at Therm-O-Link, “the lights flickered on and
off and then the warehouse power went out.” JX12. Ramirez explained to Camacho that a
long process was required to restart the machines. Id. Understanding that Ramirez was busy,
Camacho told her he would provide her a quote, said goodbye, and left. Id. Camacho
estimated that he was at Therm-O-Link for approximately 15-20 minutes. Camacho arrived
home “around 11:10 a.m. to 11:15 or 11:20 a.m.” 1R199; PX12. He logged on to a secure
web page, which required him to submit three passwords. Id. He emailed Ramirez a quote
on two different trash cans. Id. He also “put in a blog” to request the help of other Indoff
partners in locating the flat back tape. Id. The statement also reflects that Camacho “has
given a business card to the agents.” Id.
Therm-O-Link is 23.1 miles from the First Federal Bank that was robbed. JX10. Driving
from Therm-O-Link to First Federal Bank at the speed limit, with no traffic delays, takes
approximately 26 minutes. Id.
The second arrest of Camacho on Friday, January 15, 2010, at 3:01 p.m.
SA Cannella arrested Camacho for a second time on Friday, January 15, 2010, at 3:01 p.m.
PX19:4. Camacho testified that SA Cannella sat in front of him and said “Look dude I might
be wrong, but I don’t think I am. You’re under arrest.” 1R146. Camacho felt like he was
going to black out or faint, he was so scared because he knew he had not committed the
Although SA Cannella had known that Camacho had provided Ramirez’s business card, she
did not obtain the card from SA Switzer until she arrested Camacho on Friday. 2R231, 242.
At that time, SA Cannella had not yet attempted to contact Ramirez, and she did not call or
attempt to contact Ramirez, and did not ask any other agent or Task Force Officer to contact
Ramirez to verify Camacho’s alibi before arresting him on Friday afternoon. 2R250; 3R83.
At that time, SA Cannella did not believe that Ramirez had possible exculpatory information.
2R244. SA Cannella was not concerned with Ramirez, because SA Cannella understood
Camacho’s written statement to say that he was at home during the time period of the bank
robbery. 2R232; 3R83. SA Cannella did not view Therm-O-Link as a possible alibi even if
Camacho left there at the outside range of his time frame at 11:05 a.m., because it did not
completely exclude him from possibly being the bank robber. 2R234-237, 241.
SA Cannella transported Camacho with SA Casey to the El Paso County Detention Facility.
3R85-86. SA Cannella completed the booking information, which indicated that Camacho
was approximately 5'7" and 190 pounds. Id.; PX19/JX5.
While Camacho was in jail, he felt a total sense of loss; he was terrified and unable to sleep,
fearing for his life— he had never been anywhere like that; he was unable to eat and threw
up through the night; he didn’t talk to anyone. 1R152-154.
SA Cannella returned to her office after booking Camacho and sent an email at 4:33 a.m. on
Saturday, January 16, 2010, requesting assistance from SA David F. Schwarz (“SA
Schwarz”) in searching Camacho’s computer that was seized from his home. 3R99-104;
DX12. She was seeking “anything Bank robbery related since Tues (date of robbery),
photos, news, etc, the bank info or internet activity on Tuesday...” Id.
Camacho saw his father on Sunday, January 17, 2010, for fifteen minutes. 1R157-158. His
father told him not to worry, that they knew he did not do it, and that they had hired an
attorney for him. Id. Camacho was able to see his wife and mother for about fifteen minutes
that day as well. 1R158. Camacho could not get any words out, he just cried and tried to tell
them “I promise you, I didn’t do it.” Id. He felt better knowing his wife was okay and that
they believed him. Id. On Monday, Camacho met with his attorney, Mr. Islas, who told him
about a court appearance the next day. 1R159.
No agents or task force officers working the robbery made any attempt to contact Therm-OLink until Tuesday, January 19, 2010.14
Unknown to agents at the time, because they assumed it would be closed in the
evening and over the holiday weekend, Therm-O-Link is open 24 hours a day and 7 days a week.
2R245-250; 3R7-12, 165-167. Ramirez’ work hours were from 7:30 am to 4:30 pm, Monday
Tuesday, January 19, 2010
On Tuesday morning, between 7 a.m. and 9:30 a.m., SA Cannella presented a criminal
complaint to the United States Magistrate Judge, and it was signed by United States
Magistrate Judge Margaret Leachman. 3R36, 46.
SA Cannella’s affidavit in support of the complaint alleged several facts supporting probable
cause to arrest Camacho, including: (1) photos of the robber were released on January 12,
2010; (2) a person, stating she was a friend of Camacho’s called in and said the picture
looked just like Camacho; (3) on Thursday, two tellers involved in the robbery identified
Camacho out of a photo spread; (4) SA Cannella went to Camacho’s house on January 13
and after seeing him, concluded that he was the same person depicted in the robbery photos;
(5) a search of Camacho’s residence revealed a bank transaction receipt for an amount, which
combined with his two cash bank deposits, equaled the amount stolen; and (6) subsequent
to his arrest, Camacho’s brother identified Camacho as the person in the bank surveillance
Camacho was escorted to court later that morning by SA Cannella. 1R161-162. On the way
over, she told two people who asked if he was the bank robber “yep, and I got him” or “yep,
and he thought he was going to get away but he didn’t.” Id. A Deputy United States
Marshall Camacho had gone to high school with saw him and asked what happened and said
he saw it on the news and didn’t think it looked anything like him. 1R163.
through Friday, but the facility operated 24/7; someone is there to answer the phone 24/7 and
could have gotten a message to her. 3R165-167. Ramirez’s birth name is Armida, she goes by
Amy in customer service; this did not come up in the interview with the agents on Tuesday
January 19th. 3R187-188.
SA Cannella and SA Casey went to Therm-O-Link and interviewed Ramirez around 9:30 to
10:30 a.m. for forty-five minutes to two hours. 3R12-13, 45, 104-112, 183-184, 215-218.
Ramirez said she had known Camacho for five or six months and that she specifically
requested him as her sales representative. PX29. She explained that she met Camacho when
he worked for NOVA. 3R170; PX29. She had met him in person five or six times over five
months; he was very helpful. Id. Camacho had cold called Ramirez to let her know that he
was working at a different company and to ask if Therm-O-Link might be able to use the new
company. 3R170. He told her that he would come to Therm-O-Link in the morning. Id.
Ramirez did not know Camacho outside of work. 3R186-187.
Ramirez noted that Camacho had commented that he was wearing sneakers on Tuesday,
January 12, although he usually wears dress shoes. 3R30; PX29.
Ramirez was neither nervous nor confused; she informed the agents that Camacho was at
Therm-O-Link at some point between 10:00 a.m. and 11:30 a.m. for approximately thirty to
forty-five minutes on Tuesday, January 12, 2010. 3R172, 181-182, 189; PX29. She was not
certain as to when Camacho arrived or when he left. 3R216-217. She also told agents that
while Camacho was at the business, Therm-O-Link suffered a power outage—the lights
flicker and the machines go quiet; Camacho was there when the power went out and when
it came back on. 3R172-175, 196-197; PX29. Although Ramirez was unable to determine
the exact time of Camacho’s visit, she was able to tell SA Cannella that Camacho emailed
her at 12:10 p.m. about their meeting that morning; Ramirez provided SA Cannella a copy
of the email. PX29, 30.
SA Cannella also found it suspicious that the time frame Ramirez gave was not consistent
with the one Camacho provided, nor did it actually foreclose the possibility that Camacho
had committed the bank robbery. 3R29. SA Cannella also found it suspicious that Ramirez
seemed to be very friendly with Camacho. Id. SA Cannella was suspicious that there may
be more going on between Ramirez and Camacho. 3R29; 3R116-117.
After learning of the 12:10 p.m. email, SA Cannella believed that Camacho would have had
time to rush home after the robbery and send Ramirez the email; or that Camacho did not
send the email from home. 3R:17, 20, 23.
Ramirez directed the agents to Greg Carr (“Carr”), the plant production manager, when the
agents asked about video footage to confirm the times when Camacho was there. 3R112115, 190-193; PX29. Carr directed the agents to Alex Bustamante (“Bustamante”), the
general plant manager. 3R112-113. Neither Carr nor Bustamante were able to access the
video because the server was down and the web page to view the video was not available.
PX29. Ramirez was not present when the agents talked to Bustamante and she does not
know what they discussed. 3R182. Bustamante remembered Camacho being there, but did
not remember at what time. 3R112-115. He agreed to check the computer for Tuesday from
ten to noon. PX29.
After the agents had left, Ramirez asked Bustamante if he knew when the power went out
and he said yes and told her the time was 11:16 a.m. 3R116, 193-194; PX29. Ramirez
called SA Cannella within ten to fifteen minutes of their departure, told her that Bustamante
noted the power outage time on his calendar (to report the down time for production to
corporate) as 11:16 a.m. and that Camacho was there from 11:16-11:30 a.m., and that she
would be available for follow up questions.15 3R26-27, 116-117, 183-184; PX29. Ramirez
may have told SA Cannella during that phone call that she had spoken with Camacho’s
attorney over the weekend, though it is not reflected in SA Cannella’s 302 report of the
interview. 3R26-27, 116-117, 151. SA Casey knew SA Cannella received a phone call from
Ramirez and that Ramirez had new information, but SA Casey was not aware at that time
that Ramirez had told SA Cannella what the new information was during the phone call.
The agents drove around the area of Therm-O-Link for a short time to see if there were video
cameras on other nearby buildings; they were not able to identify any. 3R115. Rather than
return to Therm-O-Link after Ramirez called, SA Cannella continued to the federal
courthouse for Camacho’s initial appearance. Id.
SA Cannella got email from SA Switzer at 11:27 a.m., saying that he forgot to tell her
information from the family that Camacho embezzled money from their restaurant business,
which is the main reason it went under. DX13.
In the evening, Camacho was taken into the court room, and his wife, father, sister, brother
were all there. 1R163-164. Plaintiff was orally ordered detained during his initial
Although part of Ramirez’s duties as administrative assistant would be to make follow
up calls as directed by Bustamonte, SA Cannella thought it was suspicious that they had found a
note jotted on a calendar right after they’d left and that it was Ramirez who called her instead of
Bustamonte. 3R26-31, 116-117, 163-164. SA Cannella still did not think Ramirez provided
potentially exculpatory evidence, but finally agreed that it potentially could be exculpatory.
The Court has already ruled that Camacho cannot challenge his detention from this time
through his eventual release on January 22, 2010. Doc. 45:32-33.
Marco got a call from SA Switzer stating that he wanted to search Marco’s house; Marco
made arrangements to call the agents after he returned home from his brother’s initial
appearance. 1R273-279. Agents, including SA Switzer and SA Cannella conducted the
search around 8 p.m. 1R275. Although an FBI acquaintance of Marco’s had said that Marco
was concerned that, if Camacho had committed the robbery, he may have hidden evidence
in Marco’s house, Marco had not expressed such concern to anyone. 1R273-280; DX8.
Marco also testified that he did not direct the agents to any “hiding place” in his home.
1R276. After they searched the house, the shed, and the workroom, the agents asked him
if he knew a lady named Amy and asked if he knew that Camacho had a girlfriend; Marco
told them he did not. 1R273-279. SA Cannella told Marco that the agents knew that
Camacho had robbed the bank, but that they were hitting a brick wall. 1R278.
Wednesday, January 20, 2010
On Wednesday, January 20, 2010, SA Casey and SA Hughes interviewed Ramirez at a
Corner Bakery near Therm-O-Link. 3R47-48, 185. According to SA Casey, Ramirez seemed
much more certain as to times and who could confirm at this second interview. 3R219.
Agents called Ramirez on Thursday asking if she would be willing to take a polygraph.
Thursday, January 21, 2010
On Thursday morning, January 21, 2010, a follow-up interview of Bustamante was
conducted by SA Casey and SA Hughes at Therm-O-Link: he showed them charts on the
computer reflecting exactly when the power outage had occurred and was sure Camacho was
there when it happened. 3R220-221. Another employee was also sure. Id. That, together
with Ramirez was deemed credible. Id.16
Camacho was told that he was getting out because the same robber had committed another
robbery,17 but he did not get out on Thursday. 1R171-173.
At some point, an order of dismissal was submitted to the court. JX13.
Friday, January 22, 2010
On Friday, January 22, 2010, the order of dismissal was signed by the Magistrate Judge.
Camacho was taken to court, then back to the jail on Friday morning, before he was released.
In total, he was incarcerated for seven days and seven nights.
Camacho’s damages as a result of his arrest on Friday, January 15th and detention
pursuant to that arrest:
Camacho was so scared when he was told that he was under arrest that he felt like he was
going to faint. 1R146. He described feeling a total sense of loss. 1R152. His spirit
collapsed; he wanted to die; he could not breathe. 1R168. He was devastated; he knew he
did not deserve to be there. 1R169. While Camacho was in jail from Friday to Tuesday, he
With that information, the agents were not 100% certain about the alibi, but they were
definitely very concerned and recognized that there was a serious problem; that information was
communicated to SA Cannella. 3R220-221.
When SA Cannella first saw a photo of a suspect of a robbery occurring on January
21st, while Camacho was still in jail, SA Cannella thought Camacho had gone and robbed
another bank. 3R50-51.
was scared, terrified, anxious. Id. He got headaches. 1R157. He threw up. Id. He would
get panic attacks- he would start to shake, his stomach would tighten up, get hard, or he
would lose his bowels. 1R169. He was not able to sleep more than three or four hours a
night. 1R157, 170.
He worried what effect his arrest and detention would have on his
marriage of six months. 1R157. Camacho Sr. testified that Camacho was shaking, scared,
apologetic, and cried on Sunday when Camacho Sr. visited him at the jail. 1R249. When
Camacho was released he was relieved, but also ashamed and embarrassed. 1R175. He felt
like his arrest was all over the news, on television, and in the papers, including the FBI
bulletin of his initial arrest on the internet. 1R175, 213-215. A friend who was in Iraq had
heard that Camacho had been arrested and called his mother to see how he was doing.
1R175. Camacho was also very paranoid; he kept turning around thinking they were going
to take him back again. 1R250.
After his release, Camacho continued to have difficulties sleeping- every little noise would
wake him and he would get up and look outside. 1R183-184. He would check that the doors
and windows were closed and felt like someone was watching him. 3R203-204. In 2010, he
lost between six hours of sleep a week up to five to six hours of sleep each night. 1R183-184;
3R203-204. He still has difficulty sleeping every night, losing anywhere from six hours a
month up to three to four hours of sleep each night, causing him to be tired, dull, and not
himself during the day. Id. Camacho has suffered recurring nightmares—almost every night
in the beginning and still a couple times a month—and he wakes up because he cannot
breathe. 1R183-184. Camacho did not have sleep issues prior to 2010. 3R203-204.
Camacho suffered headaches, moodiness, crying spells, depression, and anxiety. 1R185-186;
3R204-205. He began to isolate himself—wanting to crawl into a corner and just stay there.
1R181. Camacho used to be very outgoing and to like being around people, but does not like
to be around people anymore. Id. Camacho did not suffer from depression before 2010.
Camacho developed a strong fear of law enforcement—when he saw police, his heart would
start beating really fast, he couldn’t breathe, he felt nervous and scared, like they were
coming for him. 1R181-182. Camacho is very paranoid when it comes to police. 3R204.
In 2010, when Camacho saw a police car, Camacho would think that they were following
him and going to arrest him. 3R206. If he saw them while driving, Camacho would pull
over and stop. 1R181-182. He would get nervous, tighten his hands, bite his nails, start to
sweat, lose his stomach, and sometimes vomit. 3R205-207. This happened maybe four
times a month. Id. He still feels that way, but it has decreased a little bit. 1R181-182. In
2014 it still happens maybe twice a month. 3R205-206. Aside from these driving events,
Camacho had panic attacks almost daily back in 2010, now a couple of times a month, where
he feels scared, can not breathe, his stomach gets really tight, he does not want to work or
do anything. 1R186. The last one he had was about a month before trial, when he came
home and the street was filled with police cars three houses down from his house. 1R187.
Camacho became pale white, he became scared that they were there for him and he did not
want to go home. Id. A year after the arrest, Camacho and his father were eating in a
restaurant when one of the arresting officers came in; Camacho said they needed to go, he
didn’t feel right, he started begging to leave. 1R250. His father told him to calm down and
they stayed, but Camacho was very jumpy. Id. Another time an officer friend was getting
a massage and showed up in a cop car- Camacho got scared, jumpy, paranoid, shaking, and
perspiring. 1R251. Camacho does not feel that he has gotten better over the past four years;
he does not feel safe in his house or in his city; he does not like to go downtown because
there are too many buildings that remind him of what happened. 1R188-189. He is still
paranoid when it comes to police cars or anybody that seems to be in authority or law
While over time, the frequency or intensity of these symptoms has lessened, Plaintiff still
feels the effects of his arrest and detention and continues to struggle with depression and
Camacho gained weight, felt stress all over his neck and back, and has an overall feeling of
not feeling right. 1R185. Regarding the effect on Camacho’s weight: he gained about 10
kilos, he has not been able to lose the weight. 3R209. His energy has been affected as well:
he has been tired at work. Id.
For some time, he engaged in heavy drinking–every night–to cope with these feelings,
whereas he only drank socially–once to three times a month–before January 2010, but has
been able to get his drinking under control. 1R185-186; 3R207. Regarding Camacho’s
drinking: in 2010 Camacho was drinking a lot, daily. 3R207. He is now drinking a lot
less—maybe two to three times per month. 1R207-208.
Camacho does not take regular over-the-counter medicine, but he takes St. John’s Wort for
his symptoms. 1R188-189. Camacho has not seen a psychologist or psychiatrist or any
doctor or any type of mental health counselor for his anxiety/sleeplessness/emotional
damages, and has never been prescribed any type of medication for that. 1R210. Two
reasons he has not: first, in his line of work as a sobador, it is all about natural healing; and
second, he has no medical insurance and did not have the money to pay for medical
treatment. 1R226. Camacho was never physically hurt in jail, and never sought medical
attention in jail including for throwing up, sleeplessness, or anxiety. 1R211.
Camacho also lost a significant amount of his business as a “sobador.” A “sobado” is an old
Aztec Hispanic way of rubbing an injury or relieving someone of pain. Camacho’s
emotional response to seeing law enforcement would cause him to cancel his appointments
when he would see police cars pass by; the last time it happened was a couple months before
the trial. 1R182; 3R207. Camacho estimated that in 2009 he made $1,500 as a part-time
sobador and that in 2010 he made approximately $2,000. 1R209. Even in 2014, Camacho
had episodes where he would cancel his appointments more times than his wife could count.
Camacho made approximately $12-14,000 in 2010, $22-23,000 in 2011, $40,000 by 2012,
and around $40,000 in 2013, by working with Lucky Dog Shirtz, sabados, and E.C.
Camacho spent $2,000 to pay his attorney, Mr. Islas, to defend him against the robbery
Camacho received a letter from Indoff terminating his employment for low sales and
demeanor; he believed that Indoff knew of his arrest. 1R177-178, 206-208. Camacho
provided no hard evidence that Indoff would have known of his arrest. 1R206-208. He had
expected to make over $100,000 a year with Indoff within a year or so. 1R179. Up till his
arrest on Friday, January 15th, he had only made $300-3,000 with Indoff; he did not
remember. 1R204-206. Camacho failed to show by a preponderance of the evidence that
his arrest caused Indoff to terminate his employment.
A couple months after Camacho was released, the bank foreclosed on Camacho’s house on
Firestone due to failure to pay his mortgage. 1R180-181. Before Camacho was arrested, he
was at least two months behind on his mortgage. 1R195-196. The bank had already started
the process of warning Camacho Sr. about foreclosure. 1R191. Camacho has failed to show
by a preponderance of the evidence that his arrest caused the foreclosure of his house.
Camacho had to sell his car days after his release. 1R181. No explanation was provided as
to why Camacho sold his car. Camacho failed to show that his arrest caused him to sell his
Camacho had previously been arrested approximately six times for traffic violations and
some problems that he had with a prior employer, approximately twenty years prior, but had
never been detained over night. 1R176-177. Camacho had been arrested between five and
ten times for violating a protective order, because during his divorce he lived at his parents’
house which was less than two blocks away from the house where his ex-wife was livingall the charges were dismissed. 1R217-220, 226. In 1996 Camacho was arrested for forgery
to defraud another; in 1998 for driving with suspended license; in 1999 for misappropriation
of financial property between $20,000 and $100,000 (related to the 1996 forgery); in 2000
for injury to a child with intent to cause serious bodily injury (not convicted); and in 2007
for harassment. 1R217-220, 226.
The Court finds SA Cannella to be generally not credible. SA Cannella disputed the title of
lead agent, when all of the other agents referred to her as such regarding the investigation of
the robbery. See 1R30; 2R13; 3R222, 243. Her testimony that Mercado only caught a
glimpse of the robber is contradicted by her own testimony and SA Perez’s 302 of the
witness interview. 2R:167-171; 3R120; PX4, 5. She testified that she has a fairly
photographic memory, which is undermined by the entire case and highlights her rigid
unreasonable overconfidence in her own memory. 2R205. She testified that she did not
conclude that Camacho was the robber after she conducted the ruse to see him in person at
his house on Wednesday, contradicting her probable cause affidavit. 2R154; JX6. She was
unwilling to concede that Camacho’s complexion did not match the witness descriptions of
the robber although everyone else who testified agreed that Camacho’s complexion was
medium or dark and not light. 1R313; 3R250. She was unwilling to concede that Camacho
was cooperative. 2R176. She disputed the character of the Copart check, although
Defendant even argued that the agents were extremely aware that the document was a copy
of a check. 2R215; 4R24; DX20. She was unwilling to concede that Amy Ramirez or
Therm-O-Link provided even a possible alibi even when Camacho’s statement would have
required that he go from Therm-O-Link to the bank in ten minutes. 2R:234-244; 3R83-85.
She testified that on Friday she did not believe that Ramirez had even possible exculpatory
information about Camacho. 2R244. She testified that Camacho owns Copart when her own
notes indicate Camacho Sr.’s company has a different name. 2R217. She testified that
Camacho told her that he does not go to the west side of El Paso when her own notes
contradict her. 3R65. Her testimony that Marco pointed to the picture and said “That’s my
brother” is belied by SA Lonnie M. Camacho’s 302 of Marco’s interview. 3R75; DX15 .
The Court notes that the interview of the person who did rob the bank, Raul Aron Gallegos,
was audio and video recorded. JX9:10 (FBI U.S. 000250). Had such recordings been made
and available in this case, regarding both Camacho’s Thursday and Friday interviews and
polygraph examination, the need for the Court to make many of the credibility
determinations required to establish the facts in this case would have been obviated.
Polygraph examination results may be considered in determining probable cause. Bennett
v. City of Grand Prairie, 883 F.2d 400, 405-406 (5th Cir. 1989) (noting that plaintiff
challenged neither the integrity of the particular polygraph exam nor the qualifications of her
examiner); see also Gliatta v. Jones, 96 Fed. App. 249 (5th Cir. May 10, 2004) (2004 WL
1114469) (unpublished, per curiam) (finding results, including a strong indication and
indication of deception regarding specific questions supported a finding of probable cause).
However, as with other information that may be considered, officers may not disregard facts
attendant to the polygraph examination tending to dissipate probable cause. See Gliatta, 96
Fed. App. at 252. A polygraph test can be affected by, and possibly result in a “false positive
indication of deception due to some stress or discomfort in the subject[.]” See D.E. 36:3
n. 2; 36-1:4 ¶ 12. This was one rationale behind Camacho’s release on Thursday night. Id.
Camacho testified about SA Switzer’s instructions and actions leading up to and during the
application of the polygraph examination, as well as the fear and overt nervousness that
Camacho experienced and SA Switzer observed during the exam due to the questioning
techniques employed, such as uncontrollable shaking and profuse sweating. Camacho’s
testimony on this topic was completely unrebutted. See 1-4R (SA Switzer was not called to
testify); 2R230-231 (SA Cannella testified that she observed at least a portion of the
examination through a video feed); 3R261-268 (SA Casey saw a portion of the polygraph via
a video feed; he took some notes of a portion of it; he did not know what was discussed prior
to hooking Camacho up to the polygraph machine; he did not recall anything about the
polygraph other than what was in his notes; it was possible that SA Cannella was with him
watching the video); PX39. SA Cannella’s testimony that she was told only that the results
of the test were indicating deception is not credible. See 3R81. Nor is there any testimony
or evidence provided by Defendant regarding particulars of the examination results such as
specific questions asked and the degree of deception involved. Furthermore, the report of
the polygraph examination was not entered into evidence, so the Court lacks the benefit of
its particulars. The Court finds that the factors tending to dissipate probable cause based on
the facts and circumstances attendant to the polygraph examination overwhelm any support
the results could provide to a probable cause finding. Based on the particular facts in this
case, the Court finds that no reasonable agent, mindful of the attendant circumstances, would
be able to reasonably rely on the polygraph examination results in finding probable cause.
Conclusions of Law
FTCA and False Arrest/False Imprisonment
Pursuant to the Federal Torts Claims Act (FTCA), the United States can be held liable in tort
in the same manner that a private individual would be liable under similar circumstances
under the law of the place where the act occurred. 28 U.S.C. § 2671; 28 U.S.C. § 1346(b)(1).
The FTCA withdraws consent to be sued for negligent or wrongful acts of its employees in
the exercise or performance or the failure to exercise or perform a discretionary function or
duty on the part fo a federal agency or an employee of the Government, whether or not the
relevant discretion be abused, 28 U.S.C. § 2680(a). The FTCA also withdraws consent to
be sued for “any claim arising out of false imprisonment, false arrest, . . .” unless the claim
“resulted from the act or omission of an investigative or law enforcement officer of the
United States Government.” 28 U.S.C. § 2680(h); Sutton v. United States, 819 F.2d 1289,
1294 (5th Cir. 1987). The Fifth Circuit has explained that “law enforcement decisions by
U.S. Attorneys on when, where, and how to investigate, and whether to prosecute, fall within
the ambit of the discretionary function exception.” Sutton, 819 F.2d at 1293. But “[a]
government agent who departs from the duties of an investigator and embarks on an
intentional abuse within the meaning of 2680(h) similarly exceeds the scope of his authority
and acts outside his discretion.” Id. Thus, United States District Judge Kathleen Cardone
found that “when the alleged conduct crosses the line from negligent conduct to intentional
misconduct or bad faith, the discretionary exception yields to the law enforcement proviso,
and the lawsuit can proceed.” Doc. 17 at 16.
In the state of Texas, liability is imposed on private individuals for both false arrest and false
imprisonment. See Miller v. Baylor Coll. of Med. Fed. Credit Union, CIV. A. H-09-1332,
2011 WL 677350, at *4 (S.D. Tex. Feb. 16, 2011). Both claims share the following
elements: (1) a willful detention of the plaintiff; (2) without the plaintiff’s consent; (3)
without authority of law. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.
The willful detention of Plaintiff without his consent is not at issue in this case. Doc. 45.
The only contested element in this case is the agents’ lack of legal authority in arresting and
detaining Camacho. Id.
A law enforcement officer has the legal authority to make a warrantless arrest only when
there are “reasonable grounds to believe that the person to be arrested has committed” a
felony. 28 U.S.C. § 3052. The probable cause standard generally required for warrantless
arrests is equivalent to § 3052’s “reasonable grounds” requirement. See United States v.
Campbell, 575 F.2d 505, 507 (5th Cir. 1978). For this reason, the existence of probable cause
is a complete defense to any claim for false arrest or imprisonment based on a warrantless
arrest. See Nunez v. Jiminez, No. 04-07-403-CV, 2007 EL 4320822, at *3 (Tex. App.—San
Antonio, Dec. 12, 2007, no pet.) (Explaining that a false arrest/false imprisonment claim
based on an allegedly improper warrantless arrest turns on whether there was probable cause
for the arrest).
The probable cause standard
The Supreme Court has defined probable cause to justify an arrest as the “facts and
circumstances within the officer’s knowledge that are sufficient to warrant a prudent person,
or one of reasonable caution, in believing, in the circumstances shown, that the suspect has
committed” a felony. Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). It is a “commonsense determination whether given all of the circumstances” a reasonable officer could have
believed “there is a fair probability that the plaintiff committed the crime.” Illinois v. Gates,
462 U.S. 213, 238 (1983).
Whether probable cause exists is determined based on the totality of facts and circumstances
within the officer’s personal knowledge at the time of arrest. Resendiz v. Miller, 203 F.3d
902, 903 (5th Cir. 2000). The Court looks “at the totality of the circumstances and
consider[s] the collective knowledge and experience of the officers involved.” United States
v. Jones, 234 F.3d 234, 241 (5th Cir. 2000); United States v. Edwards, 577 F.2d 883, 895
(5th Cir. ) cert. denied, 439 U.S. 968 (1978) (“the sum total of layers of information and the
synthesis of what the police have heard, what they know, and what they observed as trained
officers. We weigh not the individual layers but the ‘laminated’ total.”). Probable cause is
determined on the basis of facts available to the officer at the time of the arrest and may be
supported by the collective knowledge of law enforcement personnel who communicate with
each other prior to the arrest. Evett v. DETNTFF, 330 F.3d 681, 688 (5th Cir. 2003).
Although officers may rely on the totality of facts available to them for probable cause, “they
also may not disregard facts tending to dissipate probable cause.” Id.
The Fifth Circuit has further defined the probable cause inquiry to require that an officer
reasonably and honestly believed facts which would cause a prudent person to believe there
is a fair probability that the suspect committed a crime. Gordy v. Burns, 294 F.3d 722, 729
(5th Cir. 2002), abrogated and overruled on other grounds by Castaellano v. Fragozo, 352
F.3d 939 (5th Cir. 2003) (emphasis added). The probable cause threshold is relatively low;
it “does not require a showing that the officer’s belief [in the suspect’s guilt] was correct or
that it was more likely true than false[.]” Id.
A suspect’s innocence does not, in itself, cancel probable cause or render law enforcement’s
actions without authority. Pierson v. Ray, 386 U.S. 547, 555 (1967).
The fact that there is exculpatory evidence that may suggest that the suspect is not guilty does
not, on its own, undermine the existence of probable cause. Gordy, 294 F.3d at 729.
However, exculpatory evidence, and facts tending to dissipate the reasonableness of
believing in the suspect’s guilt to a fair probability, are part of the totality of facts and
circumstances that must be considered when making a probable cause analysis; they cannot
be disregarded and ignored. Evett v. DETNTFF, 330 F.3d 681, 688 (5th Cir. 2003).
Probable cause does not turn on the subjective determinations of the officers involved; “an
arresting officer’s state of mind (except for the facts that [she reasonably and honestly
believed]) is irrelevant to the existence of probable cause.” Devenpeck v. Alford, 543 U.S.
146, 593 (2004) citing Whren v. United States, 517 U.S. 806, 812-813 (1996); Gordy, 294
F.3d at 729. Probable cause turns only on whether, objectively, considering the totality of
such circumstances, a prudent person would believe there is a fair probability that the suspect
committed a crime. Id.
Although eyewitness identification is generally sufficient to establish probable cause, it does
not overcome the required consideration of the totality of the circumstances, including any
apparent reason to doubt the identification. United States v. Burbridge, 252 F.3d 775, 558
(5th Cir. 2001) (eyewitness identification is generally sufficient); See McBride v. Crime
Stoppers, 1994 WL 684541, at *4 (5th Cir. 1994) (unpublished) (considered the totality of
circumstances when eye witness identification was called into doubt by discrepancies
between identification and original description).
Facts known on Friday, January 15, 201018
The Court must examine what facts and circumstances were known to the agents at the time
Camacho was arrested at approximately 3 p.m. on Friday, January 15, 2010. The following
is a summary:
a. The robbery
(1) On January 12, 2010, a man wearing a beanie and glasses, who was at First National
Bank from 11:15 a.m. to 11:22 a.m., robbed the bank; (2) $1,833 were stolen; (3) Ramos
described the robber as in his forties, between 5'4" and 5'5" tall and 130-140 pounds, with
an average build and a light complexion; (4) Chavez described the robber as a Hispanic male,
between 35 and 40 years old and 5'3" to 5'4" tall, with an average build and a light
complexion; (5) Mercado described the robber as a Hispanic male, between 30 and 40 years
old and 160-180 pounds, 5'5" tall, with light skin, a light beard, glasses with no frames, and
arched eyebrows, leaving in a black car; (6) a wanted poster was released with a surveillance
photo of the robber, describing him as a Hispanic male, 35-40 years old, between 5'3" and
5'5" tall, with a light complexion, lock style goatee, and wire-framed eyeglasses; (7) an FBI
press release contained the following description: a Hispanic male, between 5'3" and 5'5" tall
and 130 to160 pounds, late 30's, average build, with a light complexion, light mustache/beard
“Candado” style; wearing sneakers; and driving a light-colored, four-door, mid-sized vehicle
with tinted windows and paper plates displayed in the rear of the vehicle; (8) agents had
The Court previously ruled that the government had sufficient probable cause to arrest
Camacho on January 14, 2010. Doc. 45. For this reason, the Court will only consider
Camacho’s second arrest on January 15, 2010.
viewed surveillance video from 11:15 a.m. to a little after 11:22 a.m; (9) agents obtained
surveillance video spanning from 10:15 a.m. to noon from several camera angles.
b. The tip
(1) Agents received a tip from Valles, Camacho’s ex-girlfriend’s best friend, who said that
she was still friends with Camacho, that the assailant looked “just like” Camacho; (2) Valles
described Camacho as 41 to 42 years old; between 5'5" and 5'6" tall, with a medium build,
goatee, glasses, “Chinese eyes,” and a distinctive look, driving a black BMW, but with
access to lots of cars; (3) Valles also described Camacho as a money guy who had failed at
many businesses and the kind of guy that would research to know if a bank had been hit
several times; (4) Camacho’s ex-girlfriend had seen the picture and was not sure it was him,
but said she would not be surprised; (5) TFO Ruiz noted it as a “big problem” that
Camacho’s records listed him as 5'6"-5'9" and 185-220 pounds.
(1) When viewed in person, SA Cannella found that Camacho’s height and weight did not
match the consensus description, but SA Cannella, finding Camacho’s complexion to be
light, was convinced that he was at least a close enough resemblance to continue pursuing;
(2) TFO Ruiz agreed that Camacho was close enough to meet the parameters of the
consensus description, but considered Camacho’s complexion to be medium; (3) SA Hughes
and SA Perez both considered Camacho’s complexion to be dark; (4) a photo line up was
compiled from Camacho’s drivers license photo; none of the people in the six total photos
were wearing either a beanie or glasses, and there was no indication of height or weight; (5)
Ramos selected Camacho’s photo immediately with a high level of certainty; (6) Chavez
selected Camacho’s photo as the person who resembled the man who robbed the bank, and
rated her certainty as 8/10; (7) Mercado did not identify anyone; it is unknown whether she
viewed the photo line-up; (8) Camacho Sr., a former police officer, acknowledged some
resemblance, but said that the man in the surveillance photos was not Camacho; (9) Marco,
a current border patrol agent, agreed that one of the pictures looked like Camacho; (10)
Marco may have said that he would not be shocked if Camacho robbed a bank; (11) SSA
Camarillo did not think Camacho looked like the robber in the surveillance photos.
(1) Camacho consented to the search of his home and vehicle and told his wife to also
consent; (2) Camacho’s wife consented to the agents taking the computer; it was in their
possession; (3) Camacho continuously waived his rights, did not ask for a lawyer, and agreed
to answer the agents’ questions; (4) Camacho returned voluntarily on Friday morning to take
a polygraph test; (5) when he arrived at 9 a.m. on Friday, Camacho provided the agents a
business card and receipt he thought would be helpful in confirming his whereabouts on
Tuesday, January 12th; (6) Camacho voluntarily gave a written statement.
(1) Camacho made two visits to the same Capital Bank branch to make cash deposits of $100
and $111 on Thursday, January 14, 2010; (2) a yellow carbon copy of a business check from
a company named Copart and made payable to an individual named “Gustavo Espinoza” in
the amount of $1,622, which stated “void if over 6 months from check date” and had “nonnegotiable” stamped on the signature line, was found in Camacho’s house; (3) the amount
of the check copy and the two cash deposits totaled $1,833, the exact amount stolen in the
(4) Camacho Sr. said he had seen Camacho on Thursday because Camacho Sr. asked
Camacho to stop by and pick up both $100 Camacho Sr. owed Camacho for helping to return
a stolen vehicle to the United States and the copy of the check for $1,622 that needed to be
returned to Copart; (5) Camacho Sr. explained that he works with Copart and Espinoza to
retrieve stolen vehicles from Mexico, the wrecker accidently gave Espinoza the yellow
carbon copy of the check, Espinoza gave it to Camacho Sr., and Camacho Sr. gave it to
Camacho to return to Copart;
(6) Camacho said that he had the carbon copy of the check because when the Copart wrecker
driver paid Espinoza for the vehicle, he gave Espinoza the carbon copy as well and Espinoza
gave it to Camacho Sr., who gave it to Camacho to return to Copart; (7) Camacho said that
Copart charges fees to the insurance company or the vehicle is sold; (8) Camacho said that
Copart pays Espinoza; (9) Camacho said that Espinoza pays Camacho Sr.; (10) Camacho
said that Camacho Sr.’s company is E.C. Repatriation; (11) Camacho said that Camacho Sr.
pays Camacho; (12) Camacho said that Copart would not pay Espinoza with a cashiers check
or money order; (11) Camacho said that Camacho would not pay Espinoza any money, to
include a cashiers check or money order.
f. West side
(1) A printout from Mapquest was found in Camacho’s vehicle with directions from his
house on the east side of town to a business on Emory on the west side of town in the vicinity
of the robbed bank; (2) Camacho said he does not go to the west side “that much” (3)
Camacho’s sister lives on the west side; (4) Camacho said he was never on the west side on
Tuesday; (5) Camacho said that he and his wife had visited a delivery service on Emory on
the west side on Wednesday, after the school event and before eating lunch at State Line.
g. Time line
(1) Camacho had said that he was at Therm-O-Link on Tuesday morning in his professional
capacity as an Indoff salesman to establish a sales account with them, and met with the
administrative assistant, Ramirez, about office products; they specifically talked about trash
cans; (2) On Thursday, Camacho said that he was unsure of the exact times he was at ThermO-Link, but agreed that it could have been between 9:30 and 10 a.m.; (3) On Friday,
Camacho said that an appointment had cancelled around 9:30 or 9:45 a.m. on Tuesday; (4)
Camacho said that he went to see Ramirez at about 10:30 a.m. at Therm-O-Link; (5)
Camacho said that he arrived at Therm-O-Link around 10:30 or 10:45 a.m.; (6) after the
polygraph, he again stated that he was at Therm-O-Link around 10:45 a.m. (7) Camacho
guesstimated on Thursday that he was at Therm-O-Link for approximately 20 minutes and
on Friday that he was at Therm-O-Link for approximately 15 to 20 minutes; (8) on Thursday,
Camacho said that there was a power outage while he was at Therm-O-Link, and the lights
flickered; (9) on Friday, Camacho said that while he was there, the lights flickered on and
off and then the warehouse power went out; Ramirez explained to him that a long process
was required to restart the machines; (10) Camacho said that Bustamante passed by when
the power went out; (11) on Thursday, Camacho said that he spoke with another employee
while he was there; (12) on Friday, Camacho said he spoke to another employee who was
filling out paperwork, putting his mother on his insurance; (13) Camacho said a man named
Chavira gave him a sample of flat back tape; (14) on Thursday, Camacho said that from
Therm-O-Link he went home and sent Ramirez an email; (15) on Friday, Camacho said that
he left Therm-O-Link around 11:00 a.m.; arrived home around 11:10 a.m. or 11:15 a.m. or
11:20 a.m.; (18) Camacho said that when he arrived home, he logged on to a secure web page
that required him to submit three passwords, he researched the products, and sent Ramirez
an email quoting the price of two trash cans; (19) Camacho said that after emailing the
product quote to Ramirez, he and his wife went to eat at Contessa, that they left there around
1:30 p.m., and that they then went to his mother’s house.
(19) Camacho’s wife said that Camacho had run errands in the morning and that she and
Camacho had gone out and gone to his mother’s, but she could not give a precise time that
Camacho was at home or away; Camacho’s wife may have said it was possible that Camacho
did not come home until 12:30 p.m. on Tuesday; (20) Camacho’s mother said that Camacho
was at her residence twice on Tuesday, once at 11 a.m. and again at 2 p.m.; (21) Camacho
had not said that he saw his mother on Tuesday morning.
(1) Camacho said that he has enough money for everything his family needs, that he cannot
pay his cell phone bill, but that he does not need a cell phone, and that he can go to his family
for money if he needed money; (2) Camacho said that he was struggling at Indoff, but was
only giving 20% effort; (3) Camacho’s wife said that they were six months behind on
mortgage payments; (4) Camacho was delinquent in paying child support; (5) Camacho had
received termination notices from the electric company for nonpayment; (6) Camacho had
taken a second loan out on his house; (7) Marco disclosed that Camacho had financial
problems and difficulty paying his bills.
(1) Camacho voluntarily submitted to a polygraph; (2) SA Switzer told Camacho that if he
answered that he had ever lied to or stolen from someone he loved, the test would be over;
(3) Camacho was nervous, scared, terrified while taking the test; he was shaking
uncontrollably and sweating profusely; (4) Camacho answered that he had never lied to nor
stolen from someone he loved; (5) SA Switzer told Camacho that he had failed the
polygraph; (6) Camacho continued to assert his innocence and asked them to call Ramirez;
(7) agents questioned Camacho for approximately another 45 minutes; (8) the agents told
Camacho that Marco had identified him as the robber; (9) Camacho maintained his
innocence and again asked them to call Therm-O-Link.
Probable Cause analysis of the arrest on Friday, January 15th
Probable cause considers the totality of the facts and circumstances an officer reasonably and
honestly believes. Gordy, 294 F.3d 722. The evidence in this case demonstrates that SA
Cannella’s asserted beliefs about some of the facts and circumstances uncovered in the
investigation were not reasonable. Some of her beliefs appear to be the product of
confirmation bias, selective information processing, and belief perseverance, or tunnel
vision, once SA Cannella had formed the opinion that Camacho was guilty. For example,
SA Cannella believed that the Camachos owned or operated Copart, although the name of
Camacho Sr.’s company, E.C. Repatriation, was reflected in her written notes. This
unreasonable belief led SA Cannella to equate Copart with the Camachos, causing her to find
Camacho’s explanation of the Copart check inconsistent with Camacho Sr.’s explanation
although they were consistent. SA Cannella also unreasonably asserted that Camacho had
said that he had enough money to pay all his bills, when Camacho himself had
acknowledged, as reflected in SA Cannella’s notes, that he did not. SA Cannella also
unreasonably asserted that Camacho had said that he never goes to the west side, when
Camacho had said only that he does not go to the west side “that much” and actually told SA
Cannella about going to the company on Emory and then going to eat lunch at State Line on
Wednesday. Finally, SA Cannella unreasonably clung to the belief that Therm-O-Link was
not even a potential alibi, although Camacho was uncertain of the time of events on Thursday
and only had a better guestimate of the time on Friday, based on his recollection of the
cancelled appointment. His more detailed account on Friday would have required Camacho
to potentially drive approximately 26 miles in 10 minutes to commit the robbery. Because
SA Cannella was the lead agent, she was the agent synthesizing all of the information
gathered in the investigation, and the one to convey such information to her supervisor and
the Assistant United States Attorney in obtaining authorization to make the arrest; thus, her
unreasonable assertions tainted the probable cause determination.
The probable cause question, however, is not subjective, but objective. The Court must,
therefore, determine whether any reasonably prudent agent, with the information that was in
front of SA Cannella, could have reasonably believed that there was a fair probability that
Camacho committed the robbery.
Although eyewitness identification is generally sufficient to establish probable cause, there
were discrepancies between the witnesses’ photo identification and their original description;
a dramatic difference between seeing the robber in person in a beanie and glasses and the
photo lineup with neither beanie nor glasses, nor any indication of height or weight; and the
witness providing the tip had a potential bias against Camacho, who was an ex-boyfriend of
her best friend. See McBride, 1994 WL 684541, at *4. SA Cannella herself, after seeing the
video of the robbery, the photos taken from the video, and Camacho in person, thought only
that he was a close enough resemblance to follow up on.
Camacho was nervous, but consistently cooperated by consenting to the search of his home
and vehicle, waiving his rights, not asking for a lawyer, agreeing to answer the agents’
questions, returning voluntarily to take a polygraph test, providing documentation to support
his account of his whereabouts, and voluntarily giving a sworn written statement.
Camacho’s time line for Tuesday was consistent from Thursday to Friday, except that he
provided greater detail on Friday and the time frame—which he conveyed he was not certain
of on Thursday—was shifted by approximately 30 to 45 minutes based on his recollection
of when a client had cancelled an appointment. The client might have been able to verify the
Both Veronica and Camacho’s mother’s recollections were
contradictory. However, they were both interviewed in the emotional state of having just had
a husband or son arrested for robbery, and even at the time of giving their statements, had
expressed that they were not entirely sure they were remembering correctly.
Camacho’s accounts of his Tuesday events on Thursday indicated that he left Therm-O-Link
between 9:50 a.m. and 10:20 a.m., and on Friday that he left Therm-O-Link between 10:45
a.m. and 11:05 a.m. The fact that Camacho’s account of events did not put him at Therm-OLink during the robbery and that he kept asking the agents to call Ramirez suggests that
Camacho did not know, and was never told, the precise time the robbery took place or that
his account did not exclude the possibility that he committed the robbery. It also might
suggest that he realized that his time estimates might be inaccurate and that Ramirez might
be able to provide more accurate information.
Camacho failed the polygraph examination; but had volunteered to take it and had appeared
for on his own volition, without an attorney, and with several family members for support,
bringing with him additional evidence to support his account of events. Morever, Camacho
was told that the test would end if he answered certain questions in a way that virtually
everyone would have to answer them in order to answer truthfully, and Camacho was
shaking uncontrollably and sweating profusely throughout the test, all of which undermines
any reasonable basis for reliance on the test results. No evidence was provided to controvert
Camacho’s testimony or to reflect precisely what questions were asked, the answers, or the
degree of deception indicated, or if any of Camacho’s responses did not indicate deception,
given his heightened state of agitation.
While agents knew that Camacho had made two bank deposits and had a yellow carbon copy
of a check in his possession that, together, suspiciously totaled the amount stolen from the
bank, the agents had also obtained consistent, plausible, innocent explanations from both
Camacho and Camacho Sr. (and verifiable by at least two other sources) regarding the
significance of the copy of the third-party check and why it was in Camacho’s possession.
Camacho provided an explanation for the Mapquest directions. Veronica and the person at
the business Camacho said he visited on Emory might be able to verify his explanation.
Finally, Camacho’s statement that he had enough money for everything his family needs, was
not consistent with the financial difficulties the agents had discovered from Veronica, his
mother, and Marco. However, Camacho acknowledged that he did not actually have enough
money to pay his bills, using his cell phone as an example and stating he did not need his cell
phone. He also stated that he could go to his family for money if he really needed the money.
Given the facts and circumstances that were before SA Cannella, the Court concludes that
no reasonably prudent officer could have reasonably believed that there was a fair probability
that Camacho committed the robbery. A possibility, yes, but that is insufficient.
After reviewing all of the facts and circumstances known to the agents and in front of SA
Cannella at the time of Camacho’s arrest on January 15th, this Court concludes that Camacho
has shown by a preponderance of the evidence that no reasonably prudent officer would have
believed that there was a fair probability that Camacho committed the bank robbery on
January 12, 2010. Thus, Camacho has established that probable cause for his arrest on
Friday, January 15, 2010 was lacking.
Without probable cause, there was no legal authority for Camacho’s arrest and detention
between Friday, January 15, 2010, and Tuesday, January 19, 2010. The Court finds that
Camacho has established by a preponderance of the evidence that he was falsely arrested and
detained under Texas law.
In determining probable cause, an agent is required to consider the totality of the
circumstances and may not disregard facts tending to dissipate probable cause. Evett, 330
F.3d at 688. SA Cannella demonstrated an unwillingness to consider, or even recognize, any
facts tending to dissipate probable cause throughout the investigation and particularly at the
point of Camacho’s arrest on Friday, January 15th. Evidence of SA Cannella’s bravado
throughout the investigation, and her distortion of certain facts in her probable cause
affidavit, reflect the extent to which her ego took precedence over her duty to properly weigh
and consider, and not disregard, any evidence that tends to dissipate probable cause. The
Court finds that SA Cannella’s conduct crossed the line from negligent to intentional
misconduct, or at a minimum bad faith.
Damages available under the FTCA
Camacho was deprived of his liberty for approximately four nights and five days, from his
arrest at approximately three o’clock in the afternoon on Friday, January 15th, to the time he
was detained pursuant to the criminal complaint and supporting affidavit signed by the
Federal Magistrate Judge on Tuesday, January 19th.
Under the FTCA, the United States is liable “in the same manner and to the same extent as
a private individual under like circumstances,” though not “for interest prior to judgment or
for punitive damages.” 28 U.S.C. §2674.
“In setting a damage award in a false imprisonment case, the [fact-finder] may look to all
injuries [of Camacho], not limiting consideration to those that are physical in nature, but also
including the more intangible injuries of humiliation, shame, fright, and anguish.” Wal- Mart
Stores, Inc. v. Odem, 929 S.W.2d 513, 527 (Tex. Civ. App.– San Antonio 1996, writ denied).
Camacho spent $2,000 to pay an attorney, Mr. Islas, to defend him against the charges.
While in jail from Friday to Tuesday, Plaintiff suffered fear, terror, a total sense of loss,
anxiety, shame and embarrassment, loss of sleep, nightmares, physical symptoms such as
headaches, throwing up and losing his bowels, and a periodic inability to breathe due to
After he was released, as a result of his Friday arrest, Plaintiff continued to experience
difficulty sleeping; nightmares; paranoia; decreased energy during the day; headaches;
moodiness; depression; anxiety; weight gain; panic attacks triggered by seeing law
enforcement, manifested by: racing heart, inability to breathe, feeling nervous and scared,
and occasionally vomiting or losing his bowels; and heightened nerves, manifested by:
jumpiness, shaking, and perspiring. Although many of the symptoms have decreased in
frequency or intensity since 2010, Plaintiff continues to experience the mental and physical
side effects of his false arrest and subsequent time in jail.
In determining damages, the Court has considered evidence of Camacho’s prior arrest
history. While of some relevance, the Court notes that none of Camacho’s prior encounters
with law enforcement resulted in him spending even one night in jail, but were rather limited
to only a number of hours of detention before being released.
The Court finds that the following were not caused by the false arrest: Camacho’s
termination from Indoff; the foreclosure on his home; and the sale of Camacho’s car.
Although Plaintiff may have lost income from sabados, Lucky Dog, or E.C. Repatriation due
to lost customers or the mental and physical side effects of his false arrest, causing him to
cancel appointments, Plaintiff did not provide sufficient evidence for the Court to determine
how much income was lost.
The Court finds that Camacho is entitled to damages in the amount of $402,000.00 for
attorney fees paid to Mr. Islas to defend against the robbery charges and for Camacho’s
mental and physical anguish.
The Court will issue a separate final judgment in accordance with these findings as required
by Federal Rule of Civil Procedure 58(a).
SIGNED and ENTERED on March 23, 2015.
ROBERT F. CASTANEDA
UNITED STATES MAGISTRATE JUDGE
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