Opinion
Case No. 99-CR-121 W
November 29, 1999
REPORT RECOMMENDATION
Defendant, Cesar Figueroa, has made a motion to suppress a statement he made in the Los Angeles County Jail on April 28, 1999 (File Entry # 68). Defendant Figueroa contends any statement he made was involuntary and that he did not waive his rights under Miranda v. Arizona, 384 U.S. 436 (1966).
The case was referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B). Hearings were held on the motion to suppress and this report and recommendation is submitted pursuant to the reference on the defendant Figueroa's motion to suppress.
Evidence
Detective Steve Cheever of the Salt Lake City Police Department, robbery squad, testified that he was investigating the defendant Figueroa and others about robberies in Salt Lake City (Tr. p. 4). On February 8, 1999, Cheever was aware there was a fugitive warrant for Figueroa. He was arrested in California on April 26, 1999 (Tr. pp. 4-5).
Cheever's testimony was given on July 9, 1999.
Officer Cheever went to California with FBI Agent Mike Dupler and they saw a defendant who was being held by California authorities on state charges (Tr. p. 5). Defendant had been arrested on a federal unlawful flight warrant ( 18 U.S.C. § 1073) for state charges. The Attorney General had not authorized a prosecution under 18 U.S.C. § 1073 (Tr. p. 7).
The officers went to the area where defendant was being held and asked to interview him. The interview occurred in a small room. Defendant was given his Miranda rights at 8:51. Cheever asked most of the questions. This was on April 28, 1999 (Tr. p. 8). Cheever asked the questions and Dupler was mostly a witness, although he did participate in questioning and discussion with defendant. The defendant was not intoxicated and spoke English. The officer said there were a lot of cases that the officer wanted to talk about and Cheever wanted to get the defendant's side of the story (Tr. p. 9).
The defendant's Miranda rights were read to him from a form. Each right was explained and the defendant was asked if he understood. He said "yeah" and nodded. The officer then said having the rights in mind did defendant wish to talk, the defendant said "yeah" again and nodded (Tr. p. 10). Defendant was told he was not going to be tricked. Exhibit 1 is the Miranda waiver form presented to Figueroa (Id.). The form was read to defendant and each box checked as read. The defendant indicated a willingness to speak and signed the waiver form (Tr. pp. 11-12). At no time during the interview did the defendant change his mind (Tr. p. 13).
Miranda v. Arizona, 384 U.S. 436 (1966).
The defendant was then interviewed about several robberies (Id.) (Tr. pp. 13-16). At one point the officer used a tape recorder during the interview (Tr. pp. 16-17). This was for a recap of what defendant had previously said (Tr. p. 17, Exhibit 2). Exhibit 3 (Tr. p. 20) is a transcript of the recording and the showing from exhibits 2 and 3 is that it was a mere question and answer interview with no threats or promises. It also shows defendant understood the questions and responded fully in English (See Tr.p. 19). No threats were made during the interview and defendant never asked for the interview to stop nor did he request an attorney during the recorded interview period (Tr. p. 21). Defendant was not intoxicated or undergoing withdrawal from drugs. Defendant was compliant and submissive (Tr. p. 22).
The defendant had been in the custody of state authorities over 48 hours when the interview took place (Tr. p. 23). Officer Cheever nor Agent Dupler wore a sidearm and defendant was not in handcuffs (Tr. p. 24). Before the interview, Officer Cheever told Figueroa there were a number of cases that the officers needed to talk to him about. The officer had no recollection of mentioning that others had incriminated the defendant or that his mother had identified him from a video tape of the ABC robbery (Tr. p. 29). The officer never told defendant that there were fingerprints that placed him at the robberies (Id.). Defendant was not told that he could get a lawyer in Salt Lake City and would not need one at the California interview (Tr. p. 30).
Agent Dupler did mention to defendant the United States Sentencing Guidelines, apparently at the end of the interview (Tr. p. 31). That was not recorded (Id.). Cheever told defendant the judge makes the decision on what happened to defendant and he needs both sides of the story (Tr. p. 33). He told defendant it was up to him whether he talked or not (Id.). Defendant was arrested about 10:00 p.m. on April 26th, the interrogation took place on April 28th at 8:51 a.m. 48 hours had not expired.
Special Agent Michael Dupler, FBI, testified that he accompanied Officer Cheever to Los Angeles to interview Cesar Figueroa (Tr. p. 37). FBI records showed defendant was arrested April 26, 1999 at 3:45 p.m. in Pomona, California. The interview took place at the Los Angeles County Jail (Tr. p. 38). Before the interview Detective Cheever asked how defendant was being treated. Cheever was the main interviewer (Id.). Exhibit I, the Miranda warning was read to defendant. Each right was read and as defendant acknowledged it, the box on the form pertaining to that right was checked (Tr. p. 39).
The interview was very relaxed (Tr. p. 40). Defendant was alert and coherent, the interview started before 9:00 a.m. Defendant said nothing about wanting an attorney. He said he would take responsibility for what he did but not for what he did not do. He did not invoke a right to silence (Tr. p. 41).
Dupler did speak to defendant about federal sentencing issues (Id.). Dupler told defendant he was being charged under the Hobbs Act. This was somewhere in the middle of the interview (Tr. p. 42). Dupler apparently said all the charges would be rolled under one complaint. He didn't discover until later that was not the case (Id.).
As to the sentencing guidelines, Dupler said,
I explained to Mr. Figueroa that if he were ever convicted and guilty of a federal crime that a Judge is given a sentencing guidelines of a high and a low based on several variables, his criminal history, the crimes and different factors that he would have to sentence an individual in that high and low area of months.
Nothing was said about not providing an attorney in Los Angeles rather than Salt Lake City (Tr. pp. 43-44). Dupler told defendant the maximum Hobbs Act sentencing was 125 years but that was not necessarily what defendant would be sentenced to (Tr. p. 44). Dupler also said cooperation would be a factor that would be considered in a sentence. He did not mention it with regard to a confession. The agent did mention to defendant taking "responsibility" for his actions (Tr. pp. 45-46). Defendant was told that if he was convicted the judge would take into consideration on the sentence if the defendant took responsibility (Tr. p. 46). The Agent did not say it would help defendant, but it would be taken into consideration by the judge in sentencing under the sentencing guidelines and could lower defendant's sentence based on acceptance of responsibility (Tr. p. 47). The agent never said by what range the sentence could be lowered, but explained a point system applied and the sentence score could be lowered by 2 points (Tr. p. 47). No number of years was mentioned (Tr. p. 48).
The Hobbs Act, 18 U.S.C. § 1951, carries a twenty year maximum on each count. Defendant is charged in the indictment with eight counts of violation of the Hobbs Act, along with other 18 U.S.C. § 924(c) offenses and one count under 18 U.S.C. § 2113. The Hobbs Act counts have a maximum statutory sentence of 160 years. The § 924(c) counts would add more time.
Defendant Cesar Figueroa testified. The defendant said he was arrested in Pomona and had been in custody about a week before the interview (Tr. p. 3). When Detective Cheever interviewed defendant, his Miranda rights were read to him and he signed the advice and waiver form (Exhibit 2, (Tr. p. 4). Defendant asked if he could get an attorney and was told by Cheever that he wouldn't get one then, but would when he went to Utah. Cheever said it was best for defendant to talk at that time, that things would go better (Tr. p. 5). This was before the waiver was signed (Id.).
This was on July 13, 1999. The reference are to the transcript of that date.
At some point Agent Dupler mentioned the federal sentencing guidelines. He told defendant the maximum sentence could be 125 years, and said if he pled guilty his points would drop and he could get 10 to 15 years (Tr. p. 6). Defendant thought he would get less time if he talked (Tr. p. 7). "Points" under the guidelines were discussed but defendant didn't understand (Tr. p. 7).
Defendant was not certain when he was arrested (Tr. p. 8). The following morning he was moved to Los Angeles County Jail (Tr. p. 9). He thought the arrest was for a traffic warrant (Tr. pp. 10-11). He was told he could get 125 years and he thought it was best for him to talk to the police, and codefendants were already taking deals (Tr. p. 11). He was shown pictures and said his mother and sister had identified him and that it was best to plead and work with them (Tr. p. 11). He was fully informed of his Miranda rights (Tr. pp. 11-12). When he asked for an attorney he was told it was best for him to work with the officers (Tr. p. 12). Defendant read through the rights form, it was not read to him (Tr. p. 12). The officer did not tell defendant he had the right to remain silent (Tr. p. 13). Cheever didn't give defendant an option to remain silent, he was told to cooperate or if he went to trial he could get the maximum sentence (Tr. pp. 13-14). Dupler's statement about a sentence occurred at the beginning, that's why defendant started talking because the 125 year sentence was mentioned (Tr. p. 14). Defendant did not ask for an attorney when the tape recorder was on, because of the prior refusal to give him one (Tr. p. 15). Defendant was not under the influence of drugs or alcohol at the interview (Tr. p. 17).
Agent Dupler testified as a rebuttal witness (Tr. p. 19). He said he first spoke to defendant about the sentencing guidelines in the middle or middle end of the interview (Tr. p. 19). It came up when defendant asked about how many aggravated robbery counts he was facing in state court (Tr. p. 20). There was an outstanding federal Hobbs Act indictment for defendant but he had not been arrested on it. The Agent explained the Hobbs Act and said he thought the maximum penalty was 125 years, but the Agent said he would have to double check on it (Tr. pp. 20-21). The Agent spoke about the high and low sentencing range and a sentence imposed within the range. After defendant waived his rights and spoke about taking responsibility for his offenses but not others, the agent mentioned acceptance of responsibility under the federal sentencing guidelines and a possible two point benefit (Tr. p. 22). The subject came up when the maximum sentence was discussed (Tr. p. 23). There was no statement that defendant ought to cooperate, nor was 10 to 15 years mentioned (Tr. pp. 23-24).
Defendant never said anything about an attorney or an attorney in Utah (Tr. pp. 24-25). Defendant was not told that if he talked he would get 2 points off (Tr. p. 26). The defendant was not told that acceptance of responsibility would minimize his sentence only that the judge would take that into account (Tr. p. 29).
Detective Cheever further testified (Tr. p. 32). He said he read the Miranda form to the defendant word for word and checked off each box on the form. Defendant didn't read it. Nothing was said by defendant about an attorney (Tr. p. 33). Defendant, during the interview, was told that persons had identified him from photographs (Tr. p. 34). The photographs were not shown to defendant although the officer had some photographs (Tr. pp. 34-35). Photos were discussed. Detective Cheever was aware that defendant had been indicted by a federal grand jury (Tr. p. 35). The officer did not mislead defendant as to what evidence had been developed (Tr. p. 36).
Based on the above evidence the court enters the following:
Findings of Fact
1. The defendant Cesar Figueroa was arrested on April 26, 1999 in California on a federal fugitive warrant under 18 U.S.C. § 1703 based on a charge in the State of Utah for robbery. The Attorney General did not authorize prosecution on the fugitive charge. Defendant was arrested in Pomona, California and held by California as a fugitive for Utah authorities. Defendant was transferred to the Los Angeles County Jail where he was held on April 28, 1999. Defendant was arrested on April 26th at 3:45 p.m. in Pomona. He was later interrogated by Officer Steve Cheever of the Salt Lake City Police Department, who was the head interrogator, and Special Agent Michael Dupler of the FBI. This interrogation took place on April 28, 1999 at 8:51 a.m. in a room at the Los Angeles County Jail. There was an outstanding federal indictment against defendant in Utah on the Hobbs Act ( 18 U.S.C. § 1951) and other charges, but defendant had not been arrested on the indictment and was not told about it. The defendant had not been taken before a magistrate and did not have counsel at the time of the interview.
2. Before the defendant's interview, Officer Cheever and Agent Dupler identified themselves, Cheever told defendant that the officer wanted to talk to defendant about robberies in Salt Lake City and to get his side of the story. The defendant was not intoxicated, spoke and understood English, and was not intimidated. The interview was relaxed. Officer Cheever said there were a lot of cases he wanted to talk about.
3. Officer Cheever then read a Miranda warning to the defendant from a Miranda form. As each right was read the defendant said he understood and Officer Cheever checked the specific warning right on the form. The defendant did not read the form himself. After advising the defendant of each right, Cheever asked defendant if, having in mind the rights of which he had been advised, did he wish to talk with officers and defendant nodded his head and said "yeah" and also said at one point he would take responsibility for what he did but not for what he did not do. Defendant was told he was not going to be tricked. Defendant signed the waiver form after again affirming he would speak.
4. Defendant did not at anytime ask for counsel nor request to remain silent. He was not told that he didn't need counsel in California at the interview and could get counsel in Utah after signing the waiver form. Defendant made statements about robberies in Utah. Officer Cheever did tell the defendant that he had surveillance photos and the defendant had been identified as the person in the photos. The photos were never shown to defendant and no false statement was made about the photos. This portion of the interview was not recorded.
5. During the interview, the defendant asked about the penalties for aggravated robbery, the state robbery charges. Agent Dupler informed defendant he was to be charged under the federal Hobbs Act in a single large charge. He was actually charged in several counts. Agent Dupler advised defendant that the maximum penalty for the charges the agent believed was 125 years but he would have to check on that. The maximum penalty for the Hobbs Act charges in the indictment is actually more than that. The agent said there was a high and low sentencing range. No specific sentence was mentioned. Acceptance of responsibility under the federal sentencing guidelines was mentioned. These were matters of information and they were not threats or promises. Defendant was told acceptance of responsibility would be a matter for the judge. No mention was made as to any particular sentencing range. No threats, promises, or indication that cooperation in making a statement would reduce defendant's sentence, was made to defendant.
6. After defendant made his oral statement to Officer Cheever, Cheever took a tape recorder to make a summary of what defendant had previously said. A recorded statement was taken from defendant. He was not threatened or promised anything for the statement. The statement was voluntary and at no time did defendant ask for counsel or to remain silent. The statement was a summary of what defendant had previously said.
Discussion
The defendant contends his statement to Officer Cheever and Agent Dupler should be suppressed because: (1) the defendant, after receiving a Miranda warning, requested counsel and was told he would not need counsel in California and could get counsel in Utah and (2) the statement given by defendant to Officer Cheever and Agent Dupler was involuntary.
Miranda
The defendant's contention that his statement should be suppressed because after being given a Miranda warning and requesting counsel, interrogation continued, is without merit. Of course, if a suspect is given a proper Miranda warning, as in this case, and waives his rights, but thereafter makes an unequivocal request for counsel, interrogation must cease. Davis v. United States, 512 U.S. 452 (1994). If after the warning is given, the suspect, before waiving his rights, requests counsel, no further interrogation can take place. Miranda v. Arizona, 384 US at 444-45; Smith v. Illinois, 469 U.S. 91, 100 (1984).
However, in this case, the defendant expressly gave a written and oral waiver of his Miranda rights, including the right to counsel. At no time did defendant request or mention counsel. There was a proper waiver, by defendant, of the right to counsel and no later invocation of such right. Therefore, there was no Miranda violation.
Voluntariness of Defendant's Confession
The defendant contends that his confession was involuntary because of misrepresentation as to the charges and promises of leniency made in exchange for defendant's cooperation.
The defendant asserts defendant had been in custody over 48 hours. He had not. He had been arrested, was in state custody, and had been in custody 41 hours when the interview commenced. The period was within that allowed under Riverside County v. McLaughlin, 500 U.S. 44 (1991). See also Gerstein v. Pugh, 420 U.S. 103 (1975). Also because defendant was not in federal custody, the time frame under 18 U.S.C. § 3501(c) is inapplicable. United States v. Alvarez-Sanchez, 511 U.S. 350 (1994). Finally, defendant in his testimony lied as to the period he had been in custody, but did not assert that it affected his decision to speak. The issue is still one of voluntariness. United States v. Glover, 104 F.3d 1570 (10th Cir. 1997).
The defendant states the room where the interview occurred was small. It was estimated at 10' by 12', but this is the size of many functional rooms and offices. The defendant has not shown how this affected him. This assertion is grasping at straws. See United States v. Buckley, 4 F.3d 552, 560 (7th Cir. 1993).
Defendant asserts he was told he would only face one Hobbs Act charge. This is not correct. Agent Dupler told defendant that all the Hobbs Act violations would be in a single charge. This was erroneous and Dupler admitted he was mistaken, how ever, there is no evidence it had any influence on defendant. The form of the charging document was simply immaterial because it was plain to the defendant that he would have to answer to the various robberies.
This underscores the admonition that interrogators should not speculate about what they don't know.
There is no evidence this was of any importance to him or affected his decision to give a statement.
The defendant contends Dupler's erroneous statement that the maximum sentence for the Hobbs Act violations was 125 years, effected the defendant. Actually, the maximum sentence was substantially more if all the counts of the indictment were added together. The agent also said he was not certain and would have to "check on it." The statement was not made as a threat, but in response to a question defendant asked about how many aggravated robbery charges he was facing. Advising a defendant as to penalties applicable to the offense under investigation is not improper coercion United States v. Nash, 910 F.2d 749, 752, 53 (11th Cir. 1990); United States v. Mendoza, 85 F.3d 1347, 1350 (8th Cir. 1996); United States v. Scurlock, 52 F.3d 531, 536 (5th Cir. 1995); United States v. Ballard, 586 F.2d 1060, 1063 (5th Cir. 1978); Hawkins v. Lynaugh, 844 F.2d 1132, 1139-41 (5th Cir. 1988); United States v. Jones, 32 F.3d 1512, 1516 (11th Cir. 1994); United States v. Bautista-Avila, 6 F.3d 1360, 1364 (9th Cir. 1993) (confession not rendered involuntary by agents informing defendant of potential penalty for the crime he was suspected of). In addition, Agent Dupler indicated sentencing guidelines would be used to calculate a sentencing range. No specific sentence or range was mentioned. The conduct of Agent Dupler discussing penalties may have been unwise, but it did not make the defendant's confession involuntary.
Aggravated robbery, under Utah law, is a first degree felony, Utah Code Ann. § 76-6-302(2), and is punishable by five years to life with an additional penalty if a firearm is used, Utah Code Ann. § 76-3-203(1).
Defendant contends there was a promise of leniency in exchange for cooperation. The court has found that no promise of leniency or reduced sentence was made in exchange for a statement. A promise of leniency is relevant to the issue of voluntariness of a confession. Clanton v. Cooper, 129 F.3d 1147, 1159 (10th Cir. 1997). However, advising a suspect that leniency would be recommended if the suspect is cooperative will usually not render a confession involuntary United States v. Byram, 145 F.3d 405, 407 (1st Cir. 1998); United States v. Glover, 104 F.3d 1570, 1582 (10th Cir. 1997); United States v. Ruggles, 70 F.3d 262, 265-66 (2d Cir. 1995); United States v. Rutledge, 900 F.2d 1127, 1130 (7th Cir. 1990); United States v. Willard, 919 F.2d 606, 608 (9th Cir. 1990); Williams v. Johnson, 845 F.2d 906 (11th Cir. 1988).
In this case, there was no promise of leniency, nor even an indication of a recommendation. The only reference to any benefit from cooperation was the reference by Agent Dupler to the United States Sentencing Guidelines point credit a defendant might receive if he accepted responsibility. The Agent advised defendant it was up to the judge.
Advice on the sentencing benefit as to acceptance of responsibility is not improper. The Supreme Court has recognized that confession is a legitimate factor to consider in imposing a sentence. Roberts v. United States, 445 U.S. 552 (1980). A confession is also a legitimate factor to be considered in imposing sentence under the federal sentencing guidelines United States v. Chee, 110 F.3d 1489, 1494 (9th Cir. 1997); United States v. McKinney, 15 F.3d 849, 854 (9th Cir. 1994); United States v. Rogers, 972 F.2d 489 (2d Cir. 1992). See circumstances in United States v. Mitchell, 113 F.3d 1528 (10th Cir. 1997); United States v. Portillo-Valenzuela, 20 F.3d 393, 394 (10th Cir. 1994); United States v. Robertson, 45 F.3d 1423, 1449 (10th Cir. 1995). The Agent did not make a promise. He gave reasonable advice. Acceptance of responsibility is something a suspect might rationally consider in determining to make a statement. It does not render a confession involuntary. See United States v. Rogers, 921 F.2d 975, 979 (10th Cir. 1990) (anticipation of acceptance of responsibility credit did not make involuntary a statement to a probation officer, as to greater involvement in the offense). This court has expressly held that an FBI agent's referring to the acceptance of responsibility guideline in an interrogation of a bank robbery suspect was not improper. United States v. Scott, 96-CR-282 B (D.Utah 1997); United States v. Jiminez, #98-CR-290 B (D. Utah 1999).
In Colorado v. Connelly, 479 U.S. 157, 170 (1986), discussing the issue of a challenge to a confession based on voluntariness said:
We hold that coercive police activity is a necessary predicate to the finding that a confession is not "voluntary" within the meaning of the Due Process Clause of the Fourteenth Amendment.
The same standard applies under the Fifth Amendment in this case.
A statement is involuntary if "the government's conduct cause[d] the [person's] will to be overborne and his `capacity for self-determination critically impaired'", United States v. Gonzales, 164 F.3d 1285, (10th Cir. 1999); United States v. McCullah, 76 F.3d 1087, 1100 (10th Cir. 1996). This is to be determined by the totality of the circumstances. Arizona v. Fulminante, 499 U.S. 279, 285-86 (1991).
In United States v. Nguyen, 155 F.3d 1219 (10th Cir. 1998) the court held a defendant's statement, as to the commission of a robbery, was voluntary where defendant was advised of his Miranda rights, no force or threat of force was used and defendant was intelligent and capable of understanding his statement when reduced to writing. The interrogation was noncoercive and not lengthy. The court also said the FBI agent did not act improperly in advising a suspect that cooperation would be brought to the attention of the prosecutor. Id. p. 223. That is not a promise or improper. United States v. Roman-Zarate, 115 F.3d 778, 780, 783, 84 (10th Cir. 1997); United States v. Lewis, 24 F.3d 79 (10th Cir. 1994); United States v. Garot, 80 F.2d 1241, 1244-45 (10th Cir. 1986).
The facts in this case show that defendant was fully advised as to his Miranda rights and signed a written waiver. He said he would take responsibility for what he did but not what he didn't do, he was not threatened or handcuffed. The interview session was relaxed. Defendant was not made any promises. Based on the totality of the circumstances, Arizona v. Fulminante, supra, the government has established by a preponderance of the evidence that the confession of defendant was voluntary. United States v. Nguyen, supra; United States v. Erving L., 147 F.3d 1240 (10th Cir. 1998); United States v. Benally, 146 F.3d 1232 (10th Cir. 1998); United States v. Alvarez, 142 F.3d 1243 (10th Cir. 1998); Lucero v. Kerby, 133 F.3d 1299 (10th Cir. 1998); United States v. Glover, 104 F.3d 1570 (10th Cir. 1997).
Also applying the standards of 18 U.S.C. § 3501(a)(b), the defendant' s statement is voluntary and admissible.
Conclusion
Defendant's motion to suppress should be denied.
Copies of the foregoing Report and Recommendation are being mailed to the parties who are hereby notified of their right to object to the same. The parties are further notified that they must file objections to the Report and Recommendation, with the clerk of the court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.