Opinion
CR-22-00887-TUC-RM (LCK)
10-16-2023
United States of America, Plaintiff, v. Randolph Harvey, Defendant.
REPORT AND RECOMMENDATION
Lynnette C. Kimmins, United States Magistrate Judge
Pending before the Court is Defendant's Motion to Suppress Statements. (Docs. 44, 50.) The government responded, and Defendant filed a reply. (Docs. 51, 60, 64.) This matter came before the Court for a hearing and a report and recommendation as a result of a referral, pursuant to LRCrim 57.6. Evidence and argument were heard on September 28 and October 2, 2023. (Docs. 65, 66.) This matter was taken under advisement at the conclusion of the hearing. (Doc. 66.)
Defendant contends that he did not knowingly, intelligently, and voluntarily waive his Miranda rights, he invoked his right to counsel, and his statement was involuntary. Having now considered the matter, the Magistrate Judge recommends that the District Court, after its independent review, grant Defendant's motion to suppress his statements because his waiver was not knowing and intelligent.
I. FACTUAL BACKGROUND
Defendant was indicted on six criminal counts arising from the stop of his vehicle as he sought to enter the United States from Mexico on March 28, 2022: conspiracy to possess with intent to distribute 400 or more grams of a substance containing fentanyl and 50 grams or more of methamphetamine (or 500 grams or more of a substance containing methamphetamine), in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vi) & (viii), 846; possession with intent to distribute 400 or more grams of a substance containing fentanyl, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A)(vi); possession with intent to distribute 50 grams or more of methamphetamine (or 500 grams or more of a substance containing methamphetamine), in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A)(viii); conspiracy to import into the United States 400 or more grams of a substance containing fentanyl and 50 grams or more of methamphetamine (or 500 grams or more of a substance containing methamphetamine), in violation of 21 U.S.C. §§ 952(a), 960(a)(1), 960(b)(1)(F) & (H), 963; importing into the United States 400 or more grams of a substance containing fentanyl, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), 960(b)(1)(F); and importing into the United States 50 grams or more of methamphetamine (or 500 grams or more of a substance containing methamphetamine), in violation of 21 U.S.C. §§ 952(a), 960(a)(1), 960(b)(1)(H). (Doc. 7.)
On the day he was stopped at the United States border, Defendant was taken into custody and interviewed by Homeland Security Special Agent (SA) Molly Cozzens. SA Cozzens asked Defendant a number of biographical and background questions. (Ex. 7 at 25.) She then told Defendant that she needed to inform him of his rights before talking about why he had been arrested. (Id. at 5.) SA Cozzens gave Defendant a document labeled Statement of Rights and asked him to read it out loud to her. (Id. at 5; Ex. 8.) She also asked Defendant to move closer to the table so he could initial next to the lines as he read. (Ex. 7 at 5.) He did not acknowledge her request or move closer to the table, and she did not pursue having him initial as he read each line. (Id. at 5-6; Ex. 8.) Defendant read the Statement of Rights as follows:
"Ex." refers to exhibits admitted at the evidentiary hearing. At the hearing, the Court found the video was the best evidence of the interview and admitted the first of the three video segments. (Ex. 1, Part 1; Doc. 70.) However, the Court admitted two transcripts of the interview (Exs. 5, 7), for the limited purpose of citation in this Report and Recommendation and objections thereto. (Doc. 70.) The transcript admitted as Exhibit 7 only covers the portion of the interview up through Defendant's first substantive answer after the Miranda waiver. The Court chose primarily to cite this exhibit because it is certified. To the extent the exhibits differ as to particularly relevant exchanges between Defendant and SA Cozzens, the Court acknowledges the transcript variations.
Before we ask you any questions it is my duty to advise you of your rights. You have the right to remain silent. Anything you may say may be used against you in a court of law. Uh, or order procedures you have the right to consult, at, uh, consult an attorney before making any statement or answering any questions. You have the right to attorney, you have the right, yeah, an attorney present with you during questioning. You have, if you, if you canno -, cannot afford an attorney, one will be appointed for you, for you before questioning. If you wish, if you decide to answer questions now, you will have the right to stop the questioning at any time or to stop the questioning for the purpose of consulting an attorney.(Ex. 7 at 5-6.) The other transcript the Court admitted is quite similar, although some of the punctuation is in different locations. (Ex. 5 at 4.)
Defendant stated "yes," when asked if he understood everything he had read. (Ex. 7 at 6.) The agent testified that she did not explain his rights to him, but she had to assume he understood the rights he read because he answered that he did. Next, SA Cozzens stated to him:
if you understand everything that I explained to you and it's it up to you if you wanna waive your rights now and you wanna talk to me about what's going on here today or you can get an attorney and we just stop there and the interview's over. It's, I want you to make sure that you understand before we go any further that you have to waive your rights and sign this before we can talk.(Id.) Defendant responded affirmatively when asked if her statement made sense. (Id.) When the agent then asked Defendant what he would like to do, he stated, "[u]m, yeah, but I mean I do, do my rights" (id. at 7); the other transcript states, "[m]mm. Yeah, I'd like probably (unintelligible) do my rights" (Ex. 5 at 5). SA Cozzens then asked, "[y]ou want to waive your rights?" (Ex. 7 at 7.) And Defendant responded, "yeah," followed by "[c]ause I can't afford an attorney right now." (Id.; Ex. 5 at 5.) SA Cozzens immediately told him, "[o]kay," and directed him to print his name and place his signature on the waiver form to indicate he was willing to talk to her without an attorney. (Ex. 7 at 7.) At the hearing, SA Cozzens acknowledged that she did not read the waiver portion of the form to him, and he did not read it. Once Defendant signed the waiver form, the agent began to question him about the events leading to his arrest. (Id.)
Psychologist Laura Brookham testified at the evidentiary hearing, and the Court found her qualified to offer expert opinions. (Doc. 65.) She completed one report regarding Defendant's competency in September 2022, and a second report on his cognitive functioning as relevant to Miranda and voluntariness in July 2023. (Exs. 3, 4.) At the hearing, Dr. Brookham testified that Defendant's cognitive functioning was consistent at the two evaluations; therefore, she determined the results reflected his stable baseline. Dr. Brookham determined that Defendant did not exaggerate his symptoms for personal benefit during her evaluation. (Ex. 3 at 3, 9.) Dr. Brookham administered a Full Scale IQ test and Defendant scored a 65, which is two standard deviations below average and in the extremely low range. (Id. at 9.) Defendant's Perceptual Reasoning Index score was higher, in the low average range, while his Verbal Comprehension Index, Processing Speed Index, and Working Memory Index were in the extremely low range. (Id. at 10.) The psychologist stated that those scores indicate "his ability to define English words, abstractly reason how two items are similar, speed when visually scanning and responding with a pencil, and short-term memory were all much lower than expected for someone his age." (Id.) Defendant's reading ability was at the level of a fourth grader and his reading comprehension was similar to a student in third grade. (Id.; Ex. 4 at 2, 4.) The psychologist explained that, because his reading skills were stronger than his comprehension, Defendant may not understand things he is able to read and communicating with him "through purely written means is not recommended." (Ex. 3 at 10.)
Dr. Brookham opined that Defendant "meets the minimum requirements to be competent to proceed with his criminal case." (Ex. 3 at 16.) She explained that:
[h]e struggles with some cognitive limitations that might make it more difficult for him, such as poor language skills, difficulty understanding written language, and some memory impairment. His challenges are not so severe, however, that they prevent him from understanding his choices and making decisions about his case. His attorney will likely have to explain things to him differently than some other clients, and he will need to check more often to ensure Mr. Harvey understands his options, but Mr. Harvey has the capacity to understand his options and the potential outcomes of his decisions.(Ex. 3 at 16.) She noted that, because Defendant lacks insight into his impairment, he "can at times appear to have fewer impairments than he has." (Id.)
When Dr. Brookham asked Defendant to read the Statement of Rights used during his interview with SA Cozzens, he mispronounced several words without awareness of doing so. (Ex. 4 at 3.) In her report and testimony, the psychologist noted that Defendant's pronunciation mistakes, and the absence of any inflection in his reading, suggested Defendant lacked full comprehension of the material he read. (Id.) When the psychologist asked him reasons why a person would request or not request an attorney, he indicated a lawyer could be helpful to relay information and prevent a suspect from being threatened, but stated that if he had asked for an attorney, "they would have thought even more that I had done what they said." (Id.) When she asked why he did not request an attorney, he stated he could not afford one. (Id.) Dr. Brookham then questioned him about the right to have an attorney appointed, as included in the Statement of Rights, and "he indicated that one had never been provided to him during questioning before," and he was "too stupid to know to ask." (Id.)
Dr. Brookham attested that the Statement of Rights required a reading comprehension level of a sixth grader, and that an abstract understanding of rights as legal protections does not develop until approximately eighth grade. (Ex. 4 at 4.) She found that it "is extremely unlikely that someone with an IQ of 65 would have the ability to understand the concepts included in a typical statement of rights." (Id.) Specific to Defendant, she opined that his "ability to read and understand the statement of rights he was provided is extremely unlikely given his level of functioning." (Id.) Dr. Brookham also concluded that Defendant did not understand how the rights "applied to him in his situation, nor how to assert them." (Id. at 5.) She went on to find that individuals with impaired executive functioning, such as Defendant:
[o]ften do or say whatever is necessary to stop their immediate discomfort without consideration of the long-term consequences....Many people in uncomfortable situations, such as an interrogation, do or say things that they hope will stop the interrogation itself. One's susceptibility to suggestibility is a significant consideration when evaluating one's capacity to assert their rights, as well as the accuracy of one's possible statement to the police....
A low IQ, psychological distress, reduced decision-making ability, intimidation (real or believed, psychological or physical), and a tendency to comply with authority, are all significant risk factors when considering one's ability to assert their rights, and the accuracy of any statements they make after waiving their rights. Mr. Harvey's reports and test results indicate that he has all of these risk factors. He is in a group of individuals who are at extremely high risk for being manipulated by others, especially those he believes to be in positions of authority, even if the other individual is not intending to do so.(Id.)
II. DISCUSSION
Defendant argues that his statements should be suppressed because he was not adequately advised of his Miranda rights, he invoked his right to counsel, his Miranda waiver was not knowing, intelligent and voluntary, and his statement was involuntary. The government contends Defendant was properly advised of his Miranda rights and made an adequate waiver of those rights. The Court finds this motion is most expeditiously resolved by addressing only whether Defendant's waiver of his Miranda rights was knowing and intelligent.
Defendant argues that his waiver was not knowing and intelligent because he is not mentally capable of understanding the consequences. For incriminating statements obtained during a custodial interrogation to be admissible, any waiver of Miranda rights must be voluntary, knowing, and intelligent. See Miranda v. Arizona, 384 U.S. 436, 479 (1966). There is a presumption against waiver, and the government bears the burden of proving a valid waiver by a preponderance of the evidence. See Colorado v. Connelly, 479 U.S. 157, 168 (1986); United States v. Bernard S., 795 F.2d 749, 751 (9th Cir. 1986). "The government's burden to make such a showing 'is great,' and the court will 'indulge every reasonable presumption against waiver of fundamental constitutional rights.'" United States v. Garibay, 143 F.3d 534, 537 (9th Cir. 1998) (quoting United States v. Heldt, 745 F.2d 1275, 1277 (9th Cir. 1984)). A waiver is knowing and intelligent if, under the totality of the circumstances, it is "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412, 421 (1986); United States v. Rodriguez-Preciado, 399 F.3d 1118, 1127 (9th Cir. 2005) (citations omitted).
"A defendant's mental capacity directly bears upon the question whether he understood the meaning of his Miranda rights and the significance of waiving his constitutional rights." Garibay, 143 F.3d at 538 (citing Derrick v. Peterson, 924 F.2d 813, 817-824 (9th Cir. 1990); United States v. Glover, 596 F.2d 857, 865 (9th Cir. 1979)). In Garibay, the court explained that the defendant "could not have knowingly and intelligently waived his rights" because of his limited English knowledge and the fact that he was "borderline retarded with extremely low verbal-English comprehension skills." Id. Here, Defendant's IQ score of 65 was extremely low, two standard deviations below average. The extremely low categorization applied to the Verbal Comprehension Index, Processing Speed Index, and Working Memory Index; the only exception was Defendant's Perceptual Reasoning Index score, which was in the low-average range. Critically, Dr. Brookham opined that it was "extremely unlikely" Defendant was able to read and understand the statement of rights. (Ex. 4 at 4.) This conclusion was supported by her finding that the Statement of Rights required a reading comprehension level of a sixth grader, while Defendant's comprehension was only on a third-grade level. Additionally, Dr. Brookham determined that Defendant did not understand how his rights applied to his situation or how to assert his rights.
The government argues that one factor indicating Defendant was able to waive his Miranda rights knowingly and voluntarily is Dr. Brookham's finding that Defendant is competent and has the ability to understand choices and make decisions. As she testified at the hearing, the psychologist's finding of competency necessarily relied upon Defendant having counsel to assist him through the criminal process, repeating and explaining information as needed. Because of his cognitive limitations, Defendant requires different explanations than a typical client to allow him to evaluate his options, and an attorney would need to repeatedly verify Defendant's understanding. (Ex. 3 at 16.). The necessary accommodations identified by Dr. Brookham were not provided to Defendant during the advisal of rights and waiver process. For these reasons, Dr. Brookham's finding of competency is not persuasive evidence that Defendant's Miranda waiver was valid.
Defendant's intellectual functioning, combined with the opinion of Dr. Brookham, indicate Defendant's waiver of his constitutional rights was not knowing and intelligent. However, the Court examines the totality of the circumstances before reaching a final conclusion. The Ninth Circuit has identified several non-exclusive factors relevant to evaluating whether a waiver was knowing and intelligent, including: whether the defendant signed a waiver form, whether the defendant appeared to understand his rights, "whether the defendant's rights were individually and repeatedly explained to him," and the defendant's prior experience with the legal system. Garibay, 143 F.3d at 538 (internal citations omitted).
In Garibay, the defendant's primary language was Spanish. 143 F.3d at 537-38. Therefore, the circuit court also evaluated factors relating to the language used to advise him of his rights and whether a translator was made available to him. Id. Here, Defendant's native language is English. Therefore, SA Cozzens use of English does not bear upon the validity of Defendant's waiver, and the Court does not evaluate those Garibay factors.
The Court looks first at the extent to which SA Cozzens explained Defendant's rights to him. Review of the interview video confirms her testimony that she provided Defendant no explanation of his rights. They were communicated to him solely by his one-time reading of them. Additionally, Defendant was not asked to, and did not, read the written waiver. Next, there is meaningful evidence that Defendant did not understand the rights he read, despite responding affirmatively when the agent asked if he understood them. Watching the video of Defendant reciting the Statement of Rights reveals that his reading was hesitant, monotone, and contained errors and repetitions. (Ex. 1, Part 1.) Very shortly after Defendant read the Statement of Rights, he agreed that he would waive his rights because he could not afford an attorney. His statement indicates that he did not understand the rights he had just read, which included the right to have an attorney provided if he could not afford to hire one. This finding is consistent with Dr. Brookham's conclusion that Defendant possessed the reading comprehension of a third grader (three grades below that necessary to understand the Statement of Rights) and a written format is not recommended as a method for effective communication with him. (Ex. 3 at 10.) Additionally, Dr. Brookham noted that Defendant tended to comply with authority figures; thus, he might state that he understood his rights even if that was not true (Ex. 4 at 5). See Garibay, 143 F.3d at 539 (relying upon evidence that the defendant was inclined to indicate understanding to authority figures whether that was accurate or not).
Although Defendant has had numerous interactions with law enforcement officers, including indictment on two prior felonies, the government did not present any evidence regarding his experience with Miranda warnings or waivers. The government relied solely on a list of charges and convictions from a Pretrial Services report, and the fact that Defendant told Dr. Brookham he never had been provided an attorney when questioned by law enforcement prior to March 2022. Absent further information about Defendant's interactions with law enforcement, and whether they amounted to interrogation and involved adequate Miranda warnings and/or waivers, they provide little information regarding Defendant's understanding of his constitutional rights. For example, if Defendant had been read his rights in the past, one or more times, and each time he waived his rights without asking any questions, those experiences do not illuminate whether he understood his rights and how to assert them. Dr. Brookham found Defendant had memory impairment; therefore, prior experience with law enforcement may not have reinforced Defendant's understanding of his rights. Further, the psychologist noted that Defendant continued to hold false beliefs about his constitutional rights, such as an inability to have an attorney if he could not afford to hire one, that asking for an attorney would make him look guilty, and law enforcement might harm him if he declined to answer questions. For these reasons, the limited evidence of Defendant's prior interactions with law enforcement do not establish that his waiver was knowing and intelligent.
Finally, the Court considers Defendant's signing of the waiver form. "Although not dispositive, a written waiver of one's Miranda rights is 'strong' evidence that the waiver is valid." Bernard S., 795 F.2d at 753 n.4 (quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979)). The facts of this case are distinct from those in Bernard S. In that case, the agent read the Miranda rights to the suspect, explaining each one and confirming understanding as to each right. Id. at 753 (noting the defendant was a juvenile with limited English knowledge). Here, Defendant read the rights to himself, and the agent provided no verbal explanation, which was particularly problematic in light of Defendant's specific cognitive impairments. The waiver portion of the form states that Defendant's rights had been read and explained to him, and that he understood those rights. (Ex. 8.) However, the form provides no evidence that his waiver was knowing and intelligent because the agent asked Defendant to sign the form without reading it. For these reasons, the signed waiver form does not evidence the validity of Defendant's waiver.
The Court concludes that the government has failed to carry its burden to establish by a preponderance of the evidence that Defendant knowingly and intelligently waived his Miranda rights. To the contrary, the evidence suggests Defendant was unable to understand his rights under the circumstances he faced and, therefore, he was incapable of a knowing and intelligent waiver.
III. RECOMMENDATION
Because Defendant's waiver of his Miranda rights was not knowing and intelligent, Defendant's statements should be suppressed. Therefore, it is recommended that, after its independent review of the record, the District Court grant Defendant's Motion to Suppress Statements (Doc. 44).
Pursuant to Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file written objections within 14 days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived.