Opinion
Case No. CR-01-20154 JF.
January 13, 2010
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO SUPPRESS STATEMENTS
This disposition is not appropriate for publication and may not be cited.
The Court has read and considered Defendant Duong's motion to suppress certain statements he made to law enforcement officers, as well as any evidence derived therefrom. The Court also has considered the oral argument presented by counsel at the hearing on December 16, 2009. For the reasons discussed below, the motion will be granted in part and denied in part.
I. FACTS
The relevant facts are undisputed for the purposes of the instant motion and are set forth in Defendant's Notice of and Motion to Suppress Statements Obtained and Derivative Evidence ("Motion") (Document #1064).
II. DISCUSSION
Defendant moves to suppress all statements he made to law enforcement officers following his arrest and seeks an order precluding the use of those statements for any purpose at trial. The Government has stated that it does not intend to use any such statements between Defendant's arrest on July 16, 2001 and his initial court appearance on July 23, 2001 in its casein-chief. Accordingly, the motion is moot to that extent. See, e.g., United States v. Camarillo, Crim. No. 06-329-HA, 2007 WL 2292691 at *5 (D. Or. Aug. 7, 2007) (finding motion to suppress moot where government represented that it did not intend to use the challenged evidence in its case-in-chief). The Government does oppose suppression of statements Defendant made during three telephone calls to Federal Bureau of Investigations ("FBI") Special Agent Blake Wirth ("Agent Wirth") on October 23, 2002; November 5, 2002; and February 12, 2003. In addition, the Government argues that all of Defendant's statements are admissible for purposes of impeachment in the event Defendant testifies.
A. Admissibility of Defendant's Telephone Conversations with Wirth
Defendant's three telephone conversations with Agent Wirth, all of which Defendant initiated himself, occurred while Defendant was in custody and after he had been indicted. As both parties recognize, "[f]or the fruits of postindictment interrogations to be admissible in a prosecution's case in chief, the State must prove a voluntary, knowing, and intelligent relinquishment of the Sixth Amendment right to counsel." Michigan v. Harvey, 498 U.S. 344, 348-49 (1990). The government can satisfy its burden of proving the defendant's waiver was knowing and intelligent by showing that it was given "after receiving warnings equivalent to those prescribed by Miranda v. Arizona[, 384 U.S. 346 (1966)]."
Even assuming that Defendant's statements otherwise were voluntary, the Court concludes that the government has failed to show that Defendant knowingly and intelligently waived his right to counsel. Agent Wirth did not advise Defendant of his Miranda rights during any of the post-indictment telephone conversations. The Government relies entirely upon Agent Wirth's original Miranda advisement, which was given more fifteen months before the first telephone conversation at issue.
The government cites Coughlan v. United States and Reinke v. United States in support of its position. In Coughlan, the Ninth Circuit upheld the trial court's admission of a confession obtained in a jail interview room where "the record ma[de] it abundantly clear that the accused was fully and fairly advised of and understood his constitutional rights, including the right to have his appointed attorney present, and with that understanding he waived those rights and voluntarily gave the incriminating statements to police officers." 391 F.2d 371, 371-72 (9th Cir. 1968) (per curiam), cert. denied, 393 U.S. 870 (1968). Similarly, in Reinke, the Ninth Circuit upheld the admission of a confession given by a defendant while in custody where, after being contacted by the defendant, the agent who took the confession "informed the appellant of his rights to remain silent and to have counsel present, and had him sign a Waiver of Rights form." 405 F.2d 228, 229 (9th Cir. 1968).
The facts of this case are readily distinguishable. Most obviously, Defendant was not re- Mirandized. Also of note is that one of the apparent purposes of Defendant's calls to Agent Wirth was to ask the agent to communicate with Defendant's counsel. Nonetheless, the Government argues that Defendant "did not require the same admonishment because of his strong understanding of his rights." (Govt. Resp. 4 n. 1.) The Government contends that this "strong understanding" was evidenced by Defendant's apparent intent to confess to Agent Wirth in order to defer his state proceedings pending his trial in the instant case. The Government claims that "[t]here is no showing on the record, nor did Duong contend, that he did not comprehend his Miranda rights." ( Id.)
It is not Defendant's burden to show that he did not comprehend his rights; it is the government's burden to show that he did and that he waived them knowingly and intelligently. It is undisputed that Defendant was properly Mirandized several times in the days immediately following his arrest in July 2001. Even though he invoked his right to counsel several times, he was subjected to a series of interrogations before his first court appearance seven days later. Fifteen months elapsed before Defendant made the first of his three collect telephone calls to Agent Wirth. The Government does not contend that Agent Wirth made any effort to remind Defendant of his Miranda rights during any of the three conversations.
Because the Government has failed to meet its burden of showing that Defendant knowingly and intelligently waived his right to counsel in connection with his telephone conversations with Agent Wirth, the Government will be precluded from offering any statements Defendant made during those conversations in its case-in-chief.
Because it finds that statements obtained through Defendant's telephone conversations with Agent Wirth are inadmissible, the Court does not reach the issue of whether the statements were taken in violation of applicable ethical standards.
B. Admissibility of Defendant's Statements for Impeachment Purposes
Even though the Government will not introduce any of the statements at issue as part of its case-in-chief, either by agreement or as a result of this order, it may still use the statements to impeach Defendant's testimony as long as they were voluntarily given under due process standards. Mincey v. Arizona, 437 U.S. 385, 398 (holding that statements are inadmissible for impeachment where they were not "the product of a rational intellect and free will" (emphasis and citations omitted)); see also Dickerson v. United States, 530 U.S. 428, 434 (2000) (holding that the due process test is "an inquiry that examines `whether a defendant's will was overborne' by the circumstances surrounding the giving of a confession" (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). Defendant contends that none of his statements to law enforcement meets this standard.
"Determination of whether a statement is involuntary . . . requires careful evaluation of all the circumstances of the interrogation." Id. at 401. In Mincey, for example, the court found that the defendant's statements, which were obtained as he lay in a hospital bed recovering from a gunshot wound he had received just hours earlier, were involuntary where he "was weakened by pain and shock, isolated from family, friends, and legal counsel, and barely conscious, and his will was simply overborne." Id. at 401-02. In contrast, in United States v. Martin, after considering all of the circumstances surrounding the interrogation of the defendant, the Ninth Circuit held that "[t]he district court properly concluded that `although the defendant was injured and under medical care at the time the statements were made, the type, dosage, and schedule of painkilling narcotic administered to [Martin] was not sufficient to overbear his will to resist the questioning or impair his rational faculties.'" 781 F.2d 671, 674 (1985).
The present case is closer to Martin than to Mincey,. Defendant has not shown that his "will was overborne" during any of his conversations with law enforcement officers. While Defendant was questioned in custody by numerous officers over nearly a week before his arraignment, including several periods of questioning after he indicated his desire to see a lawyer, Defendant does not claim that any individual interrogation session was unreasonably long or that he was physically harmed or deprived of food, water, or sleep. At most, he argues somewhat conclusorily that the officers' repeated "badgering" rendered his statements involuntary. This showing is insufficient to establish a due process violation. This observation is particularly true with respect to Defendant's statements to Agent Wirth during the three telephone conversations Defendant himself initiated.
III. CONCLUSION
Good cause therefor appearing, the motion is granted in part and denied in part as set forth above.
IT IS SO ORDERED.