Opinion
2:22-cr-00169-JCM-EJY
05-09-2024
UNITED STATES OF AMERICA, Plaintiff, v. RIBAL HAJJ-HUSSEIN, Defendant.
REPORT AND RECOMMENDATION RE: ECF NO. 34
ELAYNA J. YOUCHAH, UNITEDSTATES MAGISTRATE JUDGE
I. Introduction.
Pending before the Court is Defendant's Motion to Suppress Statements for Impeachment Purposes and Request for Jackson v. Denno Hearing. ECF No. 34. The Court considered the Motion, the Government's Response (ECF No. 36), and Defendant's Reply (ECF. No. 37). The Court also listened to the entirety of Defendant's tape recorded interview that took place in a Las Vegas Metropolitan Police Department (“Metro” or “LVMPD”) vehicle on March 17, 2021 Exhibit 1 to Defendant's Motion, manually filed at ECF No. 35 (hereinafter “Def. Ex. 1”).
Defendant argues his statements, previously found inadmissible in the Government's case in chief (ECF Nos. 28, 29), are also inadmissible for impeachment purposes because the statements were involuntary. ECF No. 34 citing Mincey v. Arizona, 437 U.S. 385, 398 (1978) and Henry v. Kernan, 197 F.3d 1021, 1029 (9th Cir. 1999). Defendant claims his statements were made “during a custodial interrogation” (an interview LVMPD “Detective Jacob requested” and Defendant “submitted” to) by three law enforcement officers (two from Metro and one from the U.S. Secret Service). Id. at 4-5. Defendant admits he was told the interview was being recorded, he was not under arrest, he was not in handcuffs during the interview, he was not going to jail on the day of the interview, law enforcement had a search warrant for his apartment and vehicle, and Defendant and law enforcement would be honest with each other and treat each other “like men.” Id. at 5 quoting Def. Ex. 1. Defendant quotes law enforcement who, toward the end of the interview, summarized the information confirmed by Defendant (Defendant's company on whose behalf the loan was taken 1 had no employees and only a virtual office so there was no payroll to meet or rent to pay), explained that Defendant might be charged with one or more crimes, and gave Defendant the opportunity to tell his side of the story. Id. at 6 quoting Def. Ex. 1 at 1:00.
Defendant contends “there was a high degree of police coercion” because Defendant was “not advised of his Miranda rights,” three “law enforcement personnel .. confronted .. [him] with alleged evidence of guilt,” and Defendant was not aware of “what criminal conduct he was accused of.” Id. at 8. Nonetheless, Defendant admits Metro Detective Jacob stated officers were speaking with him because of “an Emergency Injury Disaster Loan” and things recorded “in the loan ... [were] not true.” Id. Defendant describes the number of officers present relating to execution of the search warrants, the time of day when the interview took place, that Defendant was asked for keys to his car, and Defendant was apparently searched for weapons. Id. at 10. Defendant claims he was “isolated” when interviewed in the Metro vehicle, but that he “was not handcuffed . and the Detective told him he was free to leave.” Id.
The Emergency Injury Disaster Loan, which Defendant is alleged to have received, and is the gravamen of this case, is referred to herein as “EIDL.”
Defendant says the interview was “inherently coercive because Detective Jacob said “we are going to ask you a couple of questions and we're going to be honest with each other ..” Id. Defendant returns to a colloquy in which he asked if he is going to jail, and was told no, but when he asked if he might go to jail next month, Detective Jacob responded he did not know and that the decision was up to the prosecutor. Id. at 11. Defendant asked “what's the charge” and was told it could be theft, perjury, or wire fraud. Id. at 11-12. Finally, Defendant asked what happens next to which Detective Jacob told him he should be “cooperative” and that he might want to find someone to give him advice. Id. at 12. Defendant sums up his argument saying the length of the interview (1 hour, 3 minutes), the location and “continuity” of the interview, and Defendant's maturity, education (high school diploma), physical condition (none known), mental health (none known), and age (27) all demonstrate a custodial interrogation. Id. at 12-13.
The Government responds by agreeing that Defendant was interviewed by three law enforcement officers in a Metro vehicle in which he was not handcuffed. ECF No. 36 at 3. The Government further agrees Defendant was told “he would not be arrested that day,” search warrants were being executed, and the officers wanted to ask him questions about his EIDL. Id. The Government correctly points out that before Defendant was asked any question about the EIDL, Defendant offered information about the person who filled out the loan and did virtually everything for Defendant's business. Id. citing Def. Ex. 1 at 02:23-3:11; 03:23-03:33; 04:00-06:34. During the interview Defendant repeatedly denied knowing anything about the loan application, but admitted docu-signing the loan approval and receiving the funds he used in various ways. Id. at 3-4 citing Def. Ex. 1 at 11:34-16:26, 30:00-37:50. The Government agrees that toward the end of the interview Defendant asked about what charges he might face and the officers responded as described by Defendant. Id. at 4.
II. Discussion
a. Defendant's Statements During the Interview by Law Enforcement were Not Involuntary.
The parties do not dispute that no Miranda warning was administered to Defendant at any time during his interview by law enforcement. However, this fact alone does not result in a finding that Defendant's non-Mirandized statements are inadmissible for all purposes. Rather, the Court must determine if Defendant's statements were involuntary because it is involuntary statements that may be suppressed for all purposes including impeachment. Pollard v. Galaza, 290 F.3d 1030, 1033 (9th Cir. 202) citing Michigan v. Harvey. 494 U.S. 344, 351 (1990).
To determine whether Defendant's statements were involuntary, the Court considers whether he was “overborne by the circumstances surrounding the giving of the confession, an inquiry that takes into consideration the totality of all the surrounding circumstances-both the characteristics of the accused and the details of the interrogation.” U.S. v. Preston, 751 F.3d 1008, 1016 (9th Cir. 2014) quoting, in part, Dickerson v. United States, 530 U.S. 428, 434 (2000) quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973) (internal quote marks, backets, and emphasis omitted).
Each of these factors, in company with all of the surrounding circumstances-the duration and conditions of detention (if the confessor has been detained), the manifest attitude of the police toward him, his physical and mental state, the diverse pressures which sap or sustain his powers of resistance and self-control-is relevant.Id. quoting Culombe v. Connecticut, 367 U.S. 568, 602 (1961). Further, whether Defendant's statements were voluntary “‘is not limited to instances in which the claim is that police conduct was inherently coercive,' .. but ‘applies equally when the interrogation techniques were improper only because, in the particular circumstances of the case, the confession is unlikely to have been the product of a free and rational will.'” Id. quoting Miller v. Fenton, 474 U.S. 104, 110 (1985) (additional citations omitted). The Court may consider the defendant's “state of mind, the physical environment in which the statements” were made, the tone of voice used by law enforcement, and whether a defendant was “confused ... shaken frightened, and crying.” United States v. King, Case No. 20-cr-00344-JAD-DJA, 2023 WL 7906420, at *4 (D. Nev. Nov. 16, 2023) (citing Pollard, 290 F.3d at 1033-34).
The Court's review of the interview demonstrates Defendant was immediately told he was being recorded and why he was being interviewed. Def. Ex. 1 at 00:34-00:36, 2:03-20:34. The recording also confirms law enforcement used a conversational tone throughout the interview, never using a tone that would instill fear. See id. generally. Law enforcement did not threaten Defendant with arrest. Id. Defendant was 27 at the time of the interview, professed to be “very good” at his job of upselling time shares to existing owners, and stated he makes “very good” money ($80,000 to 100,000 a month). Id. at 19:59-20:57; 30:34-30:45; 33:25-33:27. Defendant told law enforcement he has investments, including stocks. Id. at 30:50-31-08. At no time during the interview did Defendant sound confused, shaken, or frightened. Id. generally. Defendant is never heard crying. Id. To the contrary, Defendant sounds reasonably comfortable throughout the interview. Id. There is no dispute that Defendant has no known physical or mental health issues. There is no allegation that law enforcement ever displayed, let alone brandished, their weapons.
Defendant was asked about facts suggesting inaccurate information entered on the EIDL that would increase the amount of the loan, but the officer's tone was at all times cordial. Id. at 27:1427:45; 28:51-29:11. Toward the end of the interview, law enforcement told Defendant he could be charged with various crimes, but it was up to the prosecutor to decide with what he might be charged. Id. at 44:52-45:08. There was no aggressive or coercive tone during these exchanges. Id. Further, law enforcement's tone did not change thereafter. Id. 45:09-1:03:07. See also United States v. Diggs, 228 F.Supp.3d 1113, 1118 (D. Nev. 2017) citing United States v. Bassignani, 575 F.3d 879, 884 (9th Cir. 2009). Nothing about Defendant's tone indicates he was under duress or felt pressured. See, by way of example only, Def. Ex. 1 at 39:42-40:46; 41:59-42:09. Instead, Defendant remained calm and coherent throughout the interview. Id., generally. See also King, 2023 WL 7906420, at *4. Throughout the interview, law enforcement asked Defendant numerous questions about the individual Defendant identified as suggesting, instituting, and completing the loan process. See, for example, Def. Ex. 1 at 27:46-28:48; 29:32-29:36; 29:43-29:47.
The Court recognizes the physical surroundings of Defendant's interview could support a custodial interview finding. Indeed, there is no dispute that the entirety of the one hour and three minute interview occurred in a Metro vehicle, which is not a familiar surrounding. However, there is no indication that at any time during the interview Defendant was uncomfortable, ever sought to end the interview, or ever wanted to end the interview. Id., generally. His tone and the tone of the officers, together with all other factors the Court considers, belies the conclusion that Defendant was overborne by being interviewed in a Metro vehicle. Bassignani, 575 F.3d at 884 (quoting United States v. Kim, 292 F.3d 969, 977 (9th Cir. 2002) (“isolating the defendant from the outside world largely neutralizes the familiarity of the location as a factor affirmatively undermining a finding of coercion”); United States v. Brodigan, Case No. 2:17-cr-001013-KJD-PAL, 2019 WL 1811004, at *14-15 (D. Nev. Jan. 14, 2019). The same conclusion is reached with respect to the length of Defendant's interview. That the interview was barely over one hour does not transfer the totality of all the surrounding circumstances into a custodial interrogation. Compare United States v. Saunders, Case No. 14-CR-00243-LHK-1, 2015 WL 9269968, at *8 (N.D. Cal. Dec. 21, 2015).
Defendant points to his age, and comments by law enforcement that he should and will benefit from cooperating. But, as the Ninth Circuit states: “It is not enough, even in the case of a juvenile, that the police indicate that a cooperative attitude would be to [the] benefit of an accused unless such remarks rise to the level of being threatening or coercive.” Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (internal citation and quote marks omitted). Of course, Defendant, 27, was not a juvenile, when interviewed, but a man who professed to be “very good” at upselling time shares to existing customers making tens of thousands of dollars a month.
In sum, “[a] voluntary statement is “one that is the product of a rational intellect and a free will.” United States v. Burleson, Case No. 2:16-cr-00046-GMN-PAL, 2017 WL 8941310, at *4 (D. Nev. Jan. 11, 2017) citing Brown v. Horell, 644 F.3d 969, 979 (9th Cir. 2011) (quoting Medeiros v. Shimoda, 889 F.2d 819, 823 (9th Cir. 1989)); Blackburn v. Alabama, 361 U.S. 199, 208 (1960)). Defendant's statements throughout the recorded interview evidence he was rational and a willing participant in the discussion. Indeed, the totality of the circumstances-“both the characteristics of the ... [Defendant] and the details of the interrogation”-demonstrates by a preponderance of the evidence that Defendant's statements during the interview were voluntary. Id. citing United Statesv. Preston, 751 F.3d 1008, 1016 (9th Cir. 2014) (en banc) (quoting Dickerson v. United States, 530 U.S. 428, 434 (2000)) (italics in original). There was nothing “manifestly outrageous” about law enforcement's conduct during the interview. Id. at *5 (collecting cases demonstrating bases for suppression of a defendant's statements).
For all the reasons stated above, the Court finds Defendant's will was not overborne. The Court recommends Defendant's Motion to Suppress be denied.
b. Defendant's Request for an Evidentiary Hearing is Denied.
As succinctly explained in Burleson:
In United States v. Howell, 231 F.3d 615 (9th Cir. 2000), the Ninth Circuit held that a court must hold an evidentiary hearing if the moving papers allege facts with sufficient definiteness, clarity, and specificity to enable the court to conclude that relief must be granted if the facts alleged are proved. Id. at 620 (citing United Statesv. Walczak, 783 F.2d 852, 857 (9th Cir. 1986); United States v. Irwin, 613 F.2d 1182, 1187 (9th Cir. 1980); United States v. Carrion, 463 F.2d 704, 706 (9th Cir. 1972)). The court need not hold a hearing on defendant's pre-trial motion “merely because a defendant wants one. Rather, the defendant must demonstrate that a significant disputed factual issue exists such that a hearing is required.” Howell, 231 F.3d at 621 (internal citation omitted). The determination of whether an evidentiary hearing is appropriate rests in the reasoned discretion of the district court. United States v. Santora, 600 F.2d 1317, 1320 (9th Cir.), amended by 609 F.2d 433 (1979).2017 WL 8941310, at *4. All Defendant states in support of an evidentiary hearing is that “through this hearing, the [C]ourt is able to determine the factual context surrounding a defendant's confession.” ECF No. 34 at 13. However, the context surrounding Defendant's interview is not in question. The recording is clear and the entirety of what is said is understandable. There is no question about the location, whether Defendant was in handcuffs, who was present, who said what, each speaker's tone of voice, the length of the interview, or Defendant's age, education, and employment history. The Court finds that Defendant's reason for an evidentiary hearing is insufficient to support his request given the lack of a significant disputed factual issue regarding the surroundings of the recorded interview.
III. Recommendation.
IT IS HEREBY RECOMMENDED that Defendant's Motion to Suppress Statements for Impeachment Purposes and Request for Jackson v. Denno Hearing (ECF No. 34) be DENIED.
NOTICE
Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has held that the courts of appeal may determine that an appeal has been waived due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file objections within the specified time and (2) failure to properly address and brief the objectionable issues waives the right to appeal the District Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).