Opinion
1:19-CR-00155 EAW
2021-10-12
UNITED STATES of America, v. Deandre WILSON, Defendant.
Brendan T. Cullinane, Government Attorney, U.S. Attorney's Office, Buffalo, NY, for United States of America.
Brendan T. Cullinane, Government Attorney, U.S. Attorney's Office, Buffalo, NY, for United States of America.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
Currently pending before the undersigned is a motion to suppress filed by defendant Deandre Wilson ("Wilson"). (Dkt. 186; Dkt. 262). Wilson moves for suppression of a video statement he made to law enforcement on October 9, 2019. (Id. ). For the following reasons, Wilson's motion to suppress is denied.
BACKGROUND
Wilson, along with his co-defendants, is presently charged in a 24-count second superseding indictment arising out the alleged murders of three individuals on or about September 15, 2019, and subsequent destruction of their bodies. (Dkt. 106). Wilson is charged in many of the 24 counts: narcotics conspiracy in violation of 21 U.S.C. § 846 (Count 1); Hobbs Act conspiracy in violation of 18 U.S.C. § 1951(a) (Count 8); Hobbs Act robbery in violation of 18 U.S.C. §§ 1951(a) and 2 (Count 9); murder while engaged in a narcotics conspiracy in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2 (Count 10); discharge of a firearm in furtherance of a crime of violence and drug trafficking crimes in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2 (Count 11); discharge of a firearm causing death in furtherance of a crime of violence and drug trafficking crimes in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), 924(j)(1) and 2 (Count 12 and Count 13); conspiracy to obstruct justice in violation of 18 U.S.C. § 1512(k) (Count 14); obstruction of justice in violation of 18 U.S.C. §§ 1512(c)(1) and 2 (Count 15 and Count 16); conspiracy to use fire to commit a felony in violation of 18 U.S.C. §§ 844(m) and 2 (Count 17); use of fire to commit a felony in violation of 18 U.S.C. §§ 844(h) and 2 (Count 18 and Count 19); conspiracy to damage and destroy a vehicle used in interstate commerce by fire in violation of 18 U.S.C. §§ 844(n) and 2 (Count 20); damaging and destroying a vehicle used in interstate commerce by fire in violation of 18 U.S.C. §§ 844(i) and 2 (Count 21); maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2 (Count 23); and possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D), and 18 U.S.C. § 2 (Count 24). (Id. ). Following his arrest on October 9, 2019, Wilson was questioned by law enforcement, resulting in a video-recorded oral statement. (Dkt. 186 at ¶¶ 156-57).
Wilson filed his motion to suppress on February 24, 2021, seeking suppression of his October 9, 2019 statement, including seeking a hearing "to investigate the facts and circumstances surrounding the taking of the said statement to determine whether it was obtained voluntarily, knowingly and intelligently pursuant to a proper waiver of Constitutional rights by Mr. Wilson." (Id. at ¶ 159). Wilson also submitted an affirmation in support of his motion to suppress, which states that on October 9, 2019, he was taken to Buffalo Police Headquarters where he was interrogated by two members of law enforcement, and that "[d]uring the time of [his] interrogation, the statements attributed to [him] were not freely and voluntarily given, in violation of [his] Constitutional rights." (Dkt. 197 at ¶¶ 3-5).
The government filed a response to Wilson's motion on April 30, 2021 (Dkt. 214), and Wilson filed reply papers on May 10, 2021 (Dkt. 222). The Court held oral argument on the pending pretrial motions on May 20, 2021. (Dkt. 229). On June 18, 2021, the Court issued a Decision and Order denying Wilson's request for an evidentiary hearing but reserving on the issue of whether his statement should be suppressed. (Dkt. 242 at 36-40). Thereafter, the Court received further submissions from Wilson as to his motion to suppress on July 6, 2021 (Dkt. 262), and from the government on August 20, 2021 (Dkt. 292).
The Court assumes familiarity with its findings set forth in the Decision and Order of June 18, 2021.
DISCUSSION
In support of his motion to suppress his October 9, 2019 statement, Wilson argues that it was not given knowingly and voluntarily. (Dkt. 186 at 43-44). In his supplemental filing, Wilson highlights several portions of the videotaped statement, broken down by video segments one through four, that he contends render his statement not voluntary. (See Dkt. 262 at 2-5).
Although Wilson's supplemental filing breaks the videos down into "Video #1," "Video #2," "Video #3," and "Video #4," the first four videos to which Wilson refers are labeled beginning with "Interview_Room _253_2019109 _6_39_0_Split _0_Audio," and continuing through "Interview ... Split_3_Audio." There are seven total video segments on the discs the government provided to the Court, but the objections raised by Wilson concern the first four video segments.
"A confession is not voluntary when obtained under circumstances that overbear the defendant's will at the time it is given." United States v. Taylor, 745 F.3d 15, 23 (2d Cir. 2014) (citation omitted). In examining whether a statement was made voluntarily, a court must consider the totality of the circumstances in which it was given "to determine whether the government agents’ conduct ‘was such as to overbear [the defendant's] will to resist and bring about [statements] not freely self-determined.’ " United States v. Kaba, 999 F.2d 47, 51 (2d Cir. 1993) (first alteration in original) (quoting United States v. Guarno, 819 F.2d 28, 30 (2d Cir. 1987) ). The totality of the circumstances include: "(1) the characteristics of the accused, (2) the conditions of the interrogation, and (3) the conduct of law enforcement officials." United States v. Awan, 384 F. App'x 9, 14 (2d Cir. 2010) (quoting Green v. Scully, 850 F.2d 894, 901-02 (2d Cir. 1988) ). "In general, a suspect who reads, acknowledges, and signs an ‘advice of rights’ form before making a statement has knowingly and voluntarily waived Miranda rights." Taylor , 745 F.3d at 23 (citation omitted). However, even where a Miranda waiver is knowing and voluntary, the Court "must nonetheless determine whether the inculpatory statements themselves were voluntary." Id.
"It is difficult to determine whether a confession is voluntary; case law ‘yield[s] no talismanic definition’ for the term." Id. at 24. However, where circumstances suggest evidence of "brutality, [p]sychological duress, threats, [or] unduly prolonged interrogation," statements will be deemed involuntary. United States v. Moore, 670 F.3d 222, 233 (2d Cir. 2012) (alterations in original) (quoting United States v. Verdugo, 617 F.3d 565, 575 (1st Cir. 2010) ). The government bears the burden of demonstrating by a preponderance of the evidence that a defendant's statement was voluntary. Missouri v. Seibert, 542 U.S. 600, 608 n.1, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004).
At the direction of the Court, the government produced a copy of Wilson's videotaped statement for the Court's review. The Court has reviewed the videotaped statement, including the portions of the interview highlighted by Wilson, most of which are relevant to the Court's consideration of the conduct of the officers. For the reasons explained below, the Court concludes that the government has sustained its burden of showing that Wilson's statement was voluntary, and therefore suppression is not required.
The interview of Wilson was conducted by two law enforcement officers, including a detective from Buffalo Police Homicide and FBI Special Agent Clinton Winters. At the beginning of the interview, Wilson was read his Miranda warnings and initialed a form confirming that he received and understood the warnings. Some portions of the video highlighted by Wilson concern the officers’ statements indicating they believed that Wilson was a "casualty of war" and pulled into Cobb's unlawful activities, or concern the officers confronting Wilson with evidence they had as to what occurred on September 15 and 16, 2019, and why it would be to his benefit to cooperate. (See, e.g. , Dkt. 262 at 2; see also Dkt. 230 at 38-39). Neither of these arguments is persuasive. As to the former, "[p]loys to mislead a suspect or to lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda ’s concerns." Illinois v. Perkins , 496 U.S. 292, 297, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990) ; see , e.g. , United States v. Pryor , 474 F. App'x 831, 834 (2d Cir. 2012) (rejecting argument that defendant's "statement was not voluntarily given because the law enforcement agents with whom he was speaking told him that they were not interested in pursuing robbery charges and that he was not going to be arrested"); United States v. Peterson , No. 3:18-CR-00049 (JCH), 2018 WL 6061571, at *6 (D. Conn. Nov. 20, 2018) (denying motion to suppress where law enforcement "led [the defendant] into falsely believing that he was the victim, rather than the suspect, in their investigation"); United States v. Samia , No. (S9) 13 CR 521-LTS, 2016 WL 7223410, at *6 (S.D.N.Y. Dec. 13, 2016) (rejecting argument that "false and misleading statements made by the agents during the course of the questioning, in which the agents told [the defendant] that they had already taken an incriminating statement from his co-defendant" rendered statements involuntary), on reconsideration on unrelated grounds , 2017 WL 980333 (S.D.N.Y. Mar. 13, 2017). As to the latter argument, "statements to the effect that it would be to a suspect's benefit to cooperate are not improperly coercive" but are rather "common sense factual observations," United States v. Ruggles, 70 F.3d 262, 265 (2d Cir. 1995), and "[o]nce [the defendant] ha[s] been advised of his rights, the agents [ar]e free to discuss with him the evidence against him and the reasons why he should cooperate," United States v. Tutino , 883 F.2d 1125, 1138 (2d Cir. 1989) (rejecting defendant's argument that the agents’ conduct was "inherently coercive"). Accordingly, the Court finds that these tactics do not render Wilson's statement coerced or otherwise involuntarily given.
Other portions of the video statement challenged by Wilson concern the officers moving or positioning their bodies towards him, raising their voices or becoming confrontational, or "threatening" him, including with a "RICO" charge, taking his BMW, and taking phones in his girlfriend's home. (See Dkt. 262 at 2-4). The officers did not at any point during the interview use or threaten to use physical force against Wilson. While at times Agent Winters changed the pitch of his voice, repositioned his chair to move forward closer to Wilson, or repositioned his body to either lean forward in his chair or lean back in his chair, he did not make physical contact with Wilson or otherwise enter Wilson's personal space. "[A]n officer raising his voice does not render a confession involuntary unless the overall impact of the interrogation caused the defendant's will to be overborne.... The court certainly does not expect an interrogator to act in a coercive, threatening, or overbearing manner; however, an interrogation is not a playbook for civility." United States v. Mitchell , No. 3:13-CR-128-L-1, 2013 WL 5300687, at *6 (N.D. Tex. Sept. 20, 2013) (quotations and citation omitted). Wilson is an adult with experience in the criminal justice system, and he did not appear rattled or intimidated by the officers. After reviewing the video statement and considering the totality of the circumstances, the Court does not find that the officers’ statements or actions in this regard rose to the level of overbearing Wilson's will. See United States v. Brown , No. 18-CR-6119CJS, 2020 WL 2602082, at *9 (W.D.N.Y. May 22, 2020) ("even crediting [the defendant's] statement that a member of the arresting team used a hostile or threatening tone and/or told him that he should cooperate because he faced a significant prison term—assertions that appear refuted by the video evidence proffered by the government—those facts are insufficient to demonstrate that his will was overborne"), adopted in part and denying as moot motion to suppress statements , 2020 WL 6778254 (W.D.N.Y. Nov. 18, 2020) ; United States v. Mercedes , No. 06-CR-292A, 2009 WL 656344, at *7 (W.D.N.Y. Mar. 10, 2009) ("Although the agents dispute whether either of them yelled, the conduct of the interrogation was not so overbearing as to have overwhelmed defendant's will"), adopted , 2009 WL 656344 (W.D.N.Y. Mar. 10, 2009) ; United States v. Edwards , No. CR 08-623-PCT-JAT, 2008 WL 4649043, at *4 (D. Ariz. Oct. 21, 2008) (finding that agent's "moving his chair closer during the interview" and "using an agitated tone of voice or misrepresenting some of the evidence" did not render confession involuntary, "given the total circumstances surrounding Defendant's detention and questioning"); see also United States v. Santos-Garcia , 313 F.3d 1073, 1079 (8th Cir. 2002) ("[Q]uestioning tactics such as a raised voice, deception, or a sympathetic attitude on the part of the interrogator will not render a confession involuntary unless the overall impact of the interrogation caused the defendant's will to be overborne." (alteration in original) (citations omitted)).
As to Wilson's contention that he was threatened with a "RICO" charge—which the Court would better describe as statements by the officers during the interview about the ongoing drug trafficking and "RICO enterprise investigation" of Wilson's co-defendants—those statements do not render Wilson's statement coerced, but rather reflect a fact about the investigation at the time Wilson was questioned. Further, statements by law enforcement relating to the penalties a defendant may face do not amount to coercion. See United States v. Anthony , No. 09-CR-557 (NGG), 2010 WL 2942642, at *5 (E.D.N.Y. July 21, 2010) (discussing specific term of imprisonment the defendant faced is not coercion); see also United States v. Bye, 919 F.2d 6, 9 (2d Cir. 1990) (there is "nothing improper about a defendant being told by federal agents that he faced ‘heavy penalties’ "); United States v. Hercules , No. 5:13-cr-54-4, 2014 WL 1598015, at *13 (D. Vt. Apr. 17, 2014) (agent's discussion of the possible penalties defendant faced was not coercive). Similarly, the officers’ comments that they would take Wilson's car and his girlfriend's phones do not render his statement not voluntarily given, because the Court does not find that these statements served to overbear his will. In fact, in response to these statements, Wilson replied "take it," and did not appear to be threatened. In other words, these statements do not rise to the level of psychological duress or threats, see Moore, 670 F.3d at 233, such as a threat of harm against Wilson's family or friends, see United States v. Ray , No. 20-cr-110 (LJL), 537 F.Supp.3d 569, 582 (S.D.N.Y. May 6, 2021) (holding that evidence did not support the defendant's claim that his statement was involuntary, and explaining that "[t]here is no evidence that [the defendant] was subject to any type of coercion, was threatened physically or psychologically abused or that he was made any type of promises such that his will was overborne"). The officers were questioning Wilson in connection with a triple homicide and, as explained above, an interrogation is not always a "playbook for civility." Mitchell , 2013 WL 5300687, at *6. Considering the totality of the circumstances, Wilson's videotaped statement demonstrates that the officers’ conduct was generally restrained, professional, and courteous.
The Court has also considered Wilson's contention raised in his supplemental filing that he wanted to end questioning and requested to return to his cell, but the officers ignored his requests. (See Dkt. 262 at 4-5). The interview of Wilson spans multiple hours and includes breaks in the questioning, during which both Wilson and the officers are silent. For example, in the third video segment and following a break in the questioning, Wilson asked "so are we done questioning or what? Take me to the cell or what let's go?" Following these statements, Wilson initially said, "I'm going to trial," but then stated that he did not want to go back to jail and continued conversing with the officers, including making statements relating to what occurred on the night in question. Similarly, during the fourth video segment and following a period of silence Wilson stated, "come on let's go to the cell block, what else ya'll got" and expressed a desire to lay down in his cell. Later, Wilson stated that he was tired and asked, "we going to the cell or what?" Following these statements, Wilson continued to engage in a conversation with the officers.
Wilson's statements that he wanted to go to his cell do not amount to an unequivocal revocation of any previous Miranda waiver for the purpose of discontinuing the interview or an indication that he wanted to consult an attorney. See United States v. Plugh , 648 F.3d 118, 126 (2d Cir. 2011) ("Critically, at no point did [the defendant] unambiguously inform the custodial officers that he wished to invoke his right to remain silent or his right to speak with an attorney, nor was his course of conduct such that the officers should reasonably have been put on notice that ... no further questioning could occur."); United States v. Lucas , 817 F. Supp. 2d 151, 165 (W.D.N.Y. 2010) ("At no time during the interview did the defendant ever indicate that he wanted an attorney, nor prior to refusing [the investigator's] request for a written statement, did he ever indicate that he did not want to speak with the police."), aff'd , 462 F. App'x 48 (2d Cir. 2012). Indeed, other courts have found that statements like those made by Wilson do not constitute an invocation of the right to remain silent. See, e.g. , United States v. Jones , No. CR-18-08040-001-PCT-SMB, 2021 WL 2376675, at *4 (D. Ariz. June 10, 2021) ("Defendant's mere statement that he just wanted to be taken to jail was, even standing alone, not an unambiguous invocation of his right to remain silent."); United States v. Farley , No. 18-cr-00400-TSH-1, 2019 WL 1245135, at *3-5 (N.D. Cal. Mar. 18, 2019) (defendant's statement that interrogation "was not going in his favor" and to "put [him] back in the cell" were ambiguous and not an invocation of the right to remain silent); see also Welch v. Harrington , No. CV 09-01041-JVS (JEM), 2010 WL 4794237, *8-9 (C.D. Cal. Oct. 18, 2010) (denying habeas relief because petitioner's statement during interrogation, "I want to go to my jail cell," was not an unambiguous invocation of right to remain silent), adopted , 2010 WL 4794236 (C.D. Cal. Nov. 17, 2010). Even if Wilson's statements were construed as a revocation of his initial Miranda waiver, "it was overridden by [his] subsequent decision to reinitiate the conversation" and by his continuing to converse with the officers. See United States v. Gonzalez , 764 F.3d 159, 166 (2d Cir. 2014) ; Ray , 537 F.Supp.3d at 583 (holding that where the defendant "attempted to evade answering a question that was potentially incriminating and that [went] to the heart of the Government's case" and "did not stop talking but rather kept talking, going off on a tangent that was not relevant to the question," the defendant did not "unambiguously invoke his right to cut off questioning").
Finally, near the end of the fourth video segment and in response to a question by Agent Winters implying that information showed Wilson was involved in the burning of a vehicle, Wilson stated, "listen take me to a cell man ... let me lay down, that's it, I don't got nothin’ else to say ... I ain't did nothin’ ..." When Agent Winters asked Wilson if he had "nothing else to say for the rest of [his] life," Wilson did not directly answer the question, but continued stating that he had nothing to say and that he did nothing. Following those statements, Wilson again asked to return to his cell but also continued conversing with the officers. Shortly thereafter and at the beginning of the fifth video segment, the interview was terminated when Wilson stated, "listen, take me to the cell," asked the officers to read him his rights, and stood up with his hands behind his back so that he could be handcuffed. At that time, the officers stopped questioning Wilson and left the room, presumably because they found that Wilson's statement, coupled with his actions, confirmed he no longer wished to continue the interview.
Some courts have found that, under certain circumstances, a defendant's statement indicating that he had "nothing to say" could constitute an invocation of the right to remain silent. See, e.g. , United States v. Abdallah , 911 F.3d 201, 207, 210-13 (4th Cir. 2018) (defendant's statement interrupting reading of Miranda warnings that he "wasn't going to say anything at all" amounted to unambiguous invocation of Fifth Amendment right to remain silent); but see United States v. Tucker , No. 5:20-CR-00106-KDB-DSC, 2021 WL 3269262, at *3-4 (W.D.N.C. July 30, 2021) (defendant's statement in response to officer's questioning about providing DNA sampling that "I'd rather not. I'd rather get a lawyer ‘cause now we're talkin’ about murder charges and I already said I would take a polygraph to exort [sic] myself" was not unambiguous invocation of Fifth Amendment rights, and distinguishing Abdallah , where the defendant made the statement during his Miranda warnings and prior to any interrogation rather than in the midst of a back-and-forth conversation, and explaining that "[h]ere, officers spoke with Defendant for almost an hour before the issue of counsel was raised at all," which created some ambiguity); see also Owen v. Fla. Dep't of Corrs. , 686 F.3d 1181, 1192-94 (11th Cir. 2012) (habeas relief not required where defendant stated in response to specific questions about the crime, "I'd rather not talk about it," and "I don't want to talk about it," and after which the defendant continued speaking with officers; statements were "isolated ... made nearly 30 minutes apart, in response to questions about very specific details, in the midst of a give-and-take discussion of the evidence against [the defendant]" and "did not constitute an unequivocal invocation of [his] right to remain silent").
In sum, viewing Wilson's October 9, 2019 statement in "the totality of the circumstances," including the characteristics of Wilson, the conditions of the interrogation, and the conduct of the officers, the Court concludes that law enforcement did not "overbear" Wilson's will to give a statement. See Kaba, 999 F.2d at 51. As explained above, at the beginning of the interview, Wilson was read his Miranda warnings by law enforcement and initialed a form confirming that he received the warnings, and there is no indication from the video interview that Wilson did not understand he was waiving his rights. See Moore , 670 F.3d at 233 (noting that the defendant's "willingness to talk with the police even after he was informed of his rights is itself ‘highly probative’ "). Although at times during the questioning Wilson appeared to be looking down and not responding to certain questions by the officers—including their describing the evidence against him and his co-defendants—Wilson otherwise appeared alert and responsive to their questions throughout the course of the interview. Nothing from a review of the interview appears to indicate that Wilson did not understand and comprehend the questions, nor does Wilson make any specific argument in that regard in support of his motion. Similarly, there was no use of physical force applied by the officers during the interview, and Wilson does not claim otherwise. Viewing Wilson's statement in the totality of the circumstances, the Court finds that it was freely and voluntarily given.
In his supplemental submission, Wilson notes occasions at the end of the third video segment and at the beginning of the fourth video segment where he "appears to be sleeping." (Dkt. 262 at 4). While Wilson is silent and appears to be looking down at times during these periods—including particularly when the officers were laying out the reasons he should cooperate—he also initially responds to the officers’ statements and then re-initiates the conversation. There is no indication that Wilson was so exhausted at the time of the interview that he did not understand the questions posed by the officers.
CONCLUSION
For the foregoing reasons, Wilson's motion to suppress his October 9, 2019 statement (Dkt. 186; Dkt. 262) is denied.
SO ORDERED.