Opinion
CRIMINAL ACTION NO. 06-10337-GAO.
September 7, 2007
ORDER
The defendant, Jason Depina (also known as Jelson Depina), is charged with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). He has moved to suppress statements made by him to police officers regarding the ownership of the firearm at issue. After consideration of the parties' arguments and the testimony given by Depina and Boston Police Officer Martin O'Malley at an evidentiary hearing on the motion, I make the following findings of fact and conclusions of law.
Depina also moved to suppress evidence seized during the search of the car he had been riding in. After taking testimony and considering the parties' arguments, I denied that motion at the hearing on May 18, 2007.
I. Findings of Fact
Shortly before 10:00 p.m. on the night of July 21, 2006, officers from the Boston Police Department's Youth Violence Strike Force ("YVSF") ran the license plate number of a Ford Taurus through the mobile data terminal in their unmarked police vehicle. The check revealed that the license plate was registered not to the Taurus but to a white Honda Civic owned by Eliseu Mendes. The officers then conducted a traffic stop of the vehicle based on the illegally attached license plate.
The vehicle had three occupants: the defendant Depina, who was sitting in the right rear passenger seat; his cousin, Mendes, who was driving; and Nilson Depina ("Nilson"), another cousin of the defendant, who was sitting in the front passenger seat. The officers asked the three to show their hands, which they did, and then, having observed what appeared to be marijuana on the pants of Mendes and Nilson, asked the three to exit the Taurus. Once outside the car, all three were pat frisked. Marijuana was recovered from Mendes and Nilson, but nothing was found on Depina's person.
Soon thereafter, Officer O'Malley arrived at the scene. He recognized Depina — he testified that he had previously had "hundreds" of interactions with him — and informed the other officers that he had once arrested Depina on a gun charge. At this, one of the other officers, Sergeant Tarantino, searched the passenger areas of the car, including the back seat where Depina had been sitting. He felt a hard object under the rear seat cushion which he pulled out with his right index finger. The object was a small, silver Derringer handgun with a brown handle and a two bullet capacity. It was loaded with a single bullet. Once the gun was discovered, all three of the car's occupants were handcuffed.
Mendes, the driver, was cited for having illegally attached license plates and released. Nilson was arrested for possession of marijuana and was brought to Boston Police Department District C11 for booking. Depina was arrested for possessing the firearm found in the back seat, was read his rights from a Miranda card, and was then taken to a YVSF office for "debriefing." At that office, Depina was presented with a copy of the Boston Police Department's Miranda warning form, which he signed, indicating that he "was willing to make a statement at this time without a lawyer being present." He then signed a form in which he declined to have his interview with the officers electronically recorded, and the officers proceeded to question him.
The first part of the interview focused on the ownership of the firearm recovered from the back seat of the car. Officer O'Malley informed Depina that both he and his cousins could be charged with possession of the gun. O'Malley testified that he asked Depina "more than once" whether the gun was his — notwithstanding Depina's repeated answer that it was — because he wanted to be sure that Depina did not take responsibility for the firearm if it was not actually his. For similar reasons, Officer O'Malley also asked Depina to describe the gun, which he did, characterizing it as a silver firearm with a brown handle that was capable of holding only two bullets.
When officers were finished questioning Depina about the gun, they began to ask him about the prior occasion when he had been shot. Specifically, they were interested in learning whether he knew who had been involved in the incident. Depina refused to discuss the shooting, and the interview ended soon thereafter. At some point before the interview terminated, however, Depina asked for, and received, permission to call his girlfriend.
II. Legal Analysis and Conclusions
Certain procedural safeguards must be employed during custodial interrogations in order to secure a defendant's constitutional right against self-incrimination. Miranda v. Arizona, 384 U.S. 436 (1966). Prominent among those safeguards is the right to be represented by counsel. Generally speaking, if a defendant indicates at any stage that he wishes to consult a lawyer, questioning must cease. Id. at 44-45. A defendant may waive his Miranda rights, however, so long as he does so voluntarily, knowingly and intelligently. Id. at 444. Because there is a presumption that a defendant has not waived his rights, see United States v. Palmer, 203 F.3d 55, 60 (1st Cir. 2000), it is the government's burden to prove, by a preponderance of the evidence, that he has done so voluntarily, see Colorado v. Connelly, 479 U.S. 157, 168 (1986). To determine whether a waiver was indeed knowing, intelligent and voluntary, a court must consider the totality of the circumstances, see United States v. Bezanson-Perkins, 390 F.3d 34, 40 (1st Cir. 2004), including factors such as the "background, experience, and conduct of the accused," Edwards v. Arizona, 451 U.S. 477, 482 (1981) (internal quotations omitted).
There is ample evidence in this case that Depina knowingly, intelligently and voluntarily waived his Miranda rights prior to admitting to ownership of the firearm retrieved from the back seat of Mendes's car. Officer O'Malley testified credibly that Depina was first advised of his Miranda rights at the scene by Officer Cogavin. Depina, who has a significant criminal history, testified at the hearing that he was familiar with his Miranda rights — including the right to be represented by counsel. He signed a detailed form waiving his Miranda rights prior to being questioned at the YVSF office by Officers O'Malley and Cogavin. O'Malley read through the waiver form with Depina and had Depina initial next to each sentence as it was read. Depina signed the form immediately below a statement reading, "I, Jelson Depina have read and understand the above rights as explained to me by Police Officer Martin O'Malley (Y.V.S.F.) and I am willing to make a statement without a lawyer being present."
Testimony at the hearing suggested that Depina had been arrested previously at least six times.
Depina makes two separate arguments in support of his suppression motion. At the hearing, he testified that he only signed the Miranda waiver because the police officers told him that if he did not, they would charge one or both of his cousins with possession of a firearm. This was a different tack from the one in Depina's affidavit and briefing filed in support of his motion to suppress. There he argued that his statements admitting to ownership of the firearm should be suppressed because, after signing the Miranda waiver, he requested a lawyer, was told he did not need one, and was questioned by Officers O'Malley and Cogavin notwithstanding his request.
As to Depina's first argument, I do not find as a matter of fact that O'Malley made a threat as characterized by Depina. I do find that O'Malley told him that all three of the occupants of the car were potentially in jeopardy of being charged with possession of the gun. Although the testimony was sketchy on the point, I think it likely that O'Malley also conveyed to Depina in some form of words that if the others were not culpable, he (Depina) should say so to stave off charges against them. But I do not accept Depina's version that the officer in effect said, "Sign and confess or we'll charge your cousin."
Moreover, I conclude, based on the totality of the evidence, that Depina was not susceptible to the pressure from such a threat even if it had been made. Depina was somewhat of a veteran of the criminal justice system, and, as he acknowledged, he knew his rights. He also knew O'Malley and had interacted with him on numerous occasions. It is simply not believable that he felt such pressure from whatever O'Malley said about charging the cousin that he succumbed, his will overborne, and signed the Miranda waiver involuntarily. Even if O'Malley's statement to Depina that his cousin Nilson might face a firearm charge were to be characterized as trickery or a threat, "to determine voluntariness it is necessary to look at the totality of the circumstances, including any promises or threats made by police officers . . ., in order to see whether the will of the accused was overborne." United States v. Jackson, 918 F.2d 236, 242 (1st Cir. 1990) (emphasis in original). Unlike the mothers threatened with loss of their children in Lynumn v. Illinois, 372 U.S. 528 (1963) and United States v. Tingle, 658 F.2d 1332 (9th Cir. 1981), there is no suggestion that Depina was "unusually susceptible to psychological coercion" due to his relationship with Nilson, "particularly in light of [his] very substantial previous experience with the criminal justice system." Jackson, 918 F.2d at 242. Finally, and quite significantly, the undisputed testimony was that Depina absolutely refused to discuss the prior shooting of which he was a victim when the topic was raised during questioning, effectively terminating the interview. This was in marked contrast to his willingness to discuss the gun. Standing alone, this factor might not be determinative, but considered in the full context, it leads me to conclude that Depina's will was not overborne by the police and that he maintained the capacity to make independent and voluntary decisions, including the decision to sign the Miranda waiver.
Mostly for the same reasons, I also do not credit Depina's assertion that he requested a lawyer but continued to be questioned notwithstanding the request. His testimony on the subject was conclusory and lacked specificity. He first testified that he asked for a lawyer at the scene of the arrest. Notably, this assertion is not consistent with either his affidavit or the brief in support of his motion to suppress, both of which stated only that he had requested a lawyer after signing the Miranda form and made no mention of a demand at the scene of the arrest. In light of the apparent inconsistencies in Depina's assertions, for either version of events — his prior sworn statement or his hearing testimony — to be deemed credible, it needed to be developed in more believable detail at the hearing. That did not happen. In fact, some of his testimony seemed to undercut his claim that he requested a lawyer but was rebuffed by Officers O'Malley and Cogavin. For example, Depina asked for, and received, permission to call his girlfriend while he was at the YVSF facility for questioning. Although this does not prove that a request for legal representation would have been honored as scrupulously, it would seem inconsistent for the police to have let him use the phone to contact his girlfriend but not his lawyer. In addition, there was evidence that Depina had signed a form waiving his right to have his questioning electronically recorded. (Without the waiver, the police would have been required to record the interview in order to make it admissible in evidence in the Massachusetts courts.) Depina's willingness to waive the recording suggests that he was not at that time concerned that the officers were overstepping their bounds or interfering with his constitutional rights, because by requesting recording he could either have given the officers an incentive to conduct the interview properly or have caused a record to be made of their refusal to do so. Finally, as mentioned above, I find it significant that when Depina did assert his right to remain silent — refusing to answer questions about the prior shooting — the interview stopped. These circumstances, when considered together, lead me to conclude that Depina did not ask for a lawyer after he signed the Miranda waiver form.
It is likely that the Boston police would have thought a state prosecution the route the case would take, and correspondingly unlikely that they would have done the interview without taping because they were anticipating a less stringent admissibility issue in a federal prosecution.
IV. Conclusion
In sum, I conclude that Depina knowingly, intelligently and voluntarily waived his right to counsel when he signed the Miranda waiver form and that he did not thereafter request the interview to stop pending his consultation with a lawyer. I therefore conclude that Depina's statement that he owned the firearm seized from Mendes's car at the time of his arrest was made voluntarily and was obtained without any violation of his constitutional rights. Accordingly, his motion to suppress his statements to the police is DENIED.
It is SO ORDERED.