At trial, only one witness identified Toliver as being at the crime scene when the crime occurred. In a declaration, which was not before the trial court or before this court in the earlier direct appeal, see United States v. Toliver, 380 F. App'x 570 (9th Cir. 2010) (unpublished), the lone witness' mother casts doubts on her son's credibility. The district court failed to hold an evidentiary hearing to consider whether Toliver was prevented from learning about the witness's mother before or during trial because the government failed to timely disclose other evidence that could have led to her.
endant] could not afford an attorney, one would be appointed to represent him"); United States v. Botello-Rosales, 728 F.3d 865, 867 (9th Cir. 2013) (upholding suppression of the defendant's statement where the detective's Miranda warning in Spanish was found to have "failed to reasonably convey the government's obligation to appoint an attorney for an indigent suspect who wishes to consult one."); United States v. Bland, 908 F.2d 471, 473-474 (9th Cir. 1990) (holding that on retrial, the district court should exclude defendant's confession, which was given subsequent to a Miranda warning that "failed to mention that [defendant] was entitled to have an attorney during questioning."); United States v. Noti, 731 F.2d 610, 614-616 (9th Cir. 1984) (holding that a Miranda warning was defective because the officer failed to tell defendant that he had the right to counsel during, as well as before, questioning); United States v. Toliver, 480 F. Supp. 2d 1216, 1241-1242 (D. Nev. 2007), aff'd, 380 Fed. App'x 570 (9th Cir. 2010) (a Miranda warning that "did not expressly inform Defendant that he had the right to consult with an attorney prior to questioning or to have an attorney present during questioning" were inadequate). Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 36-3(b).
endant] could not afford an attorney, one would be appointed to represent him"); United States v. Botello-Rosales, 728 F.3d 865, 867 (9th Cir. 2013) (upholding suppression of the defendant's statement where the detective's Miranda warning in Spanish was found to have "failed to reasonably convey the government's obligation to appoint an attorney for an indigent suspect who wishes to consult one."); United States v. Bland, 908 F.2d 471, 473-474 (9th Cir. 1990) (holding that on retrial, the district court should exclude defendant's confession, which was given subsequent to a Miranda warning that "failed to mention that [defendant] was entitled to have an attorney during questioning."); United States v. Noti, 731 F.2d 610, 614-616 (9th Cir. 1984) (holding that a Miranda warning was defective because the officer failed to tell defendant that he had the right to counsel during, as well as before, questioning); United States v. Toliver, 480 F. Supp. 2d 1216, 1241-1242 (D. Nev. 2007), aff'd, 380 Fed. App'x 570 (9th Cir. 2010) (a Miranda warning that "did not expressly inform Defendant that he had the right to consult with an attorney prior to questioning or to have an attorney present during questioning" were inadequate). Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 36-3(b).
This is all that is required of the Government for purposes of the indictment. See, e.g., United States v. Toliver, 380 F. App'x 570, 572 (9th Cir. 2010) ("[T]he district court correctly denied [the defendant's] motion to dismiss the indictment" when the "indictment set forth all the essential elements of a VICAR ‘status crime.’ "); Carrillo, 229 F.3d at 183 ("[O]nly a generic definition of an underlying state crime is required in a RICO indictment, as distinguished from the elements of the penal codes of the various states where acts of racketeering occurred."); Orena, 32 F.3d at 714 (the Government is not required to allege in the indictment an overt act as required under the predicate state-law murder violations); accord United States v. Kuehne, 547 F.3d 667, 696 (6th Cir. 2008) (holding that the failure of the indictment to specify particular predicate drug trafficking offenses for the imposition of 18 U.S.C. § 924(c)(1) did not undermine the indictment's sufficiency because the indictment tracked the statutory language of § 924(c)(1) and was sufficiently specific to protect against double jeopardy).
The mere fact that DS Butenhoff chose to give a Miranda warning to Defendant out of caution is not itself an indicia of "custody." See Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (finding that defendant was not "in custody" during an interview in which the law enforcement officer gave a Miranda warning and then taped defendant's confession); United States v. Taylor, 480 F. Supp. 2d 1216, 1233 (D. Nev. 2007), aff'd, 380 Fed. App'x 570 (9th Cir. 2010). Based on the foregoing, the Court recommends DENYING Defendant's Motion to Suppress Any Statements Made By Defendant, [Docket No. 26], to the extent the motion pertains to the statements Defendant made before DS Butenhoff gave him a Miranda warning on March 14, 2014.
Id. at 1351. Miranda is not satisfied where defendant is advised that he had the right to counsel, but was not also advised that he had the right to consult with an attorney prior to questioning or to have an attorney present during questioning. United States v. Toliver, 480 F. Supp. 2d 1216 (D. Nev. 2007), aff'd, 380 F. App'x 570 (9th Cir. 2010). Two district judges and one magistrate judge in this district have concluded that the standard LVMPD Miranda warnings are constitutionally inadequate.