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Cardona v. Cook

United States District Court, D. Colorado

May 25, 2017

FRED COOK, in his official and individual capacity, Defendant.


          Richard P. Matsch, Senior Judge

         In July 2013, Plaintiff Sanjuana Cardona was arrested and charged with violating C.R.S. § 18-8-201, “Aiding Escape, ” based on an affidavit written by Defendant Fred Cook, the Town Marshal of the town of Log Lane Village, Colorado, a small community near Fort Morgan. In his affidavit, Marshal Cook wrote, among other things, that Plaintiff had admitted providing food and shelter to Enrique Cardona, her ex-brother-in-law, after he escaped from a halfway house and fled law enforcement. The charges against Plaintiff were subsequently dismissed by the prosecutor. Plaintiff alleges the arrest affidavit contained false information and that Marshal Cook was motivated to bring the charges by Plaintiff's expressed dissatisfaction with Marshal Cook's performance as Town Marshal and by her participation as a town trustee in efforts to have him removed from office.

         Plaintiff's Complaint alleges four claims under 42 U.S.C. § 1983: (1) unlawful seizure/false arrest in violation of the Fourth Amendment; (2) malicious prosecution in violation of the Fourth and Fourteenth Amendments; (3) “vindictive prosecution” in violation of the Fourth and Fourteenth Amendments; and (4) retaliation for free speech in violation of the First Amendment. Plaintiff has abandoned the third claim. Response to Defendant Fred Cook's Motion, Doc. 29 at 43. Marshal Cook moved for summary judgment on the remaining claims.

         In December 2012 Enrique Cardona (Enrique) escaped from a halfway house in Sterling and went on two occasions to Log Lane Village, where Ms. Cardona lives. After the first escape in early December, he returned to the halfway house the same day and was not arrested. The second time he evaded law enforcement from December 24 through December 31. During that week, Enrique was considered an escapee and was actively sought by law enforcement. He was arrested by law enforcement on December 31, but not before he kidnapped and assaulted his ex-girlfriend.

         At all relevant times, Marshal Cook was the only full-time law enforcement officer employed by Log Lane Village. Sometime during the week of December 24 to 31, while looking for Enrique, Marshal Cook informed Ms. Cardona that Enrique was an escapee. Whether he gave her that information before or after Enrique had come to her home, spent an uncertain amount of time there, and used her telephone to make a call, is disputed.

         As part of the investigation for Enrique's prosecution, the Morgan County District Attorney's office instructed Marshal Cook to listen to the recordings of all phone calls Enrique made while in custody at the Morgan County Jail. A system was set up by which Marshal Cook could listen to and download those recordings. In early June 2013 he did that and took notes on what he heard. In one recording Enrique mentioned that during the week of December 24-31, 2012, he had sought shelter and food at Ms. Cardona's home, but said she was not home. Marshal Cook asserts that in another recording Enrique said he had gone to Ms. Cardona's house during the week of December 24, and that she had given him food. Marshal Cook asserts that he did not properly download this particular recording from the Morgan County Jail's server, and it was automatically deleted. The existence and claimed content of this recording is disputed, based on the fact that Marshal Cook has produced his notes of all phone calls he listened to, and there are no notes of this call. Ms. Cardona asserts that Marshal Cook fabricated the existence of this call to cover up false statements he made in his arrest warrant affidavit. For purposes of argument in the Motion, Defendant assumes this recording never existed.

         Allegedly to follow up on what he heard in these recordings, on June 18, 2013, Marshal Cook interviewed Ms. Cardona and her teenage granddaughter to determine if Ms. Cardona had aided Enrique when he was an escapee. The interview was recorded. Concerning Enrique's activities from December 24-31 when he was an escapee, Marshal Cook asked: “[C]an you kind of tell me as best you can what went on during that time?” Ms. Cardona responded: “Yeah, I don't, I don't know when it was, but he did come to my house one time and, um, he stayed there for a few hours and then he left …” She then added that “the next day he came by again at night, thinking, you know, that he could stay, but I told him, ‘Rick, ' I said, ‘You-you can't stay here.'” Ms. Cardona said she was afraid that “[i]f something happens, I don't want my kids in the middle of it.”

         The “next day” encounter referred to by Ms. Cardona was December 25, 2012, meaning the prior encounter-as discussed in this interview-would have been on December 24, after Enrique had become an escapee. Later in the interview, Marshal Cook asked Ms. Cardona: “But you guys knew that he was running when - when he came down there to your house.” Ms. Cardona replied: “I think I knew he was running”; and then immediately followed that statement with: “I don't know if it was when I talked to you or before or after.” Thus, Ms. Cardona disputes that she told Marshal Cook in the interview that she knew Enrique was an escapee when she allowed him into the house on December 24; she asserts that this statement shows she told Marshal Cook in the interview that she did not know if Enrique's first visit was before or after Marshal Cook had told her he was an escapee. Marshal Cook also asked Ms. Cardona and her granddaughter whether either of them had fed Enrique while he was at the house, which both denied, although Ms. Cardona offered that it was possible he came by when nobody was home.

         After the interview, Marshal Cook drafted an arrest warrant affidavit for Ms. Cardona alleging a violation of Colorado's Aiding Escape statute, C.R.S. § 18-8-201.[1] An arrest warrant was issued based solely on that affidavit. Ms. Cardona was arrested on July 5, 2013 and bound over on one count of Aiding Escape. She bonded out of jail shortly after her arrest.

         Marshal Cook's affidavit falsely stated that during the June 18, 2013 interview, “Sanjuana Cardona said that Enrique Cardona came to her house and wanted food and shelter, she allowed him into the house and gave him food and shelter.” The interview transcript shows that Ms. Cardona never said that Enrique came to her house in search of food and shelter or that she gave him “food” or “shelter.” The affidavit also falsely states that Ms. Cardona's granddaughter said that she let Enrique “in once to eat and shower.” The interview transcript shows no such statement. The affidavit also falsely states that “Sanjuana Cardona said she knew Enrique was on the run at the time he was at the house.” The interview transcript, as indicated above, shows that Ms. Cardona said in the interview that she did not know whether she knew Enrique was an escapee when he came to her home the first time.

         Marshal Cook's affidavit also falsely states that in a phone call from Enrique to an unidentified female, “Enrique Cardona tells her he was given food and shelter from Sanjuana (Jeanie) Cardona who is the ex-sister-in-law of Enrique Cardona.” There is no evidence of any recorded call containing such a statement. In fact, Enrique made a call in which he specifically told an unidentified female that Ms. Cardona had not provided him with food and shelter, and that he had eaten at her house when Ms. Cardona was not present. Marshal Cook testified that he heard another jail phone call in which Enrique Cardona told an unidentified female that he had received food and shelter from Ms. Cardona. As previously stated there are no notes or recording of such a call and it must be disregarded.

         Ms. Cardona subsequently modified her interview statement that Enrique's two visits were on December 24 and 25, 2012, in her response to written discovery. There she wrote that the first visit, when he came by the house and asked to use the phone, was “a week or two prior to Christmas”; and the second was on Christmas night, at which time she states she knew he was a fugitive and told him he could not come in the house.

         On January 28, 2014, the charge against Ms. Cardona was dismissed on the motion of the prosecutor who told the court that she believed Ms. Cardona had committed the offense and “admitted to some wrongdoing” but that the prosecutor had concerns about whether there was a reasonable likelihood of conviction.

         At all relevant times in 2012 and 2013, Ms. Cardona was a Trustee for Log Lane Village. She asserts that she was critical of Marshal Cook and his performance as a law enforcement officer and that she believes he arrested her in retaliation for her comments. She also alleges that the Log Lane Village Board of Trustees had ...

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