Opinion
No. 4:99 CR 561 SNL, DDN.
February 28, 2000.
Carter C. Law, [term 12/23/99], 314-421-3177 fax, [COR LD NTC pda], Kevin Curran, [term 02/18/00], 314-421-3177 fax, [COR LD NTC pda], FEDERAL PUBLIC DEFENDER, 1010 Market Street, Suite 200, St. Louis, MO 63101, 314-241-1255, FTS 421-3177; Daniel A. Juengel, 314-721-4377 fax, [COR LD NTC ret], FRANK AND JUENGEL, 7777 Bonhomme, Suite 1601, Clayton, MO 63105, 314-725-7777, FTS 721-4377, for defendant.
Thomas J. Mehan, 314-539-7695 fax, [COR LD NTC], OFFICE OF U.S. ATTORNEY, 1114 Market Street, Room 401, St. Louis, MO 63101, 314-539-2200, FTS 539-7695, U.S. Attorneys.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This action is before the Court upon the pretrial motions of the parties which were referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636 (b). An evidentiary hearing was held on January 27, 2000. At the hearing, counsel requested and the undersigned granted counsel leave to file post-hearing memoranda on or before February 11, 2000.
Motion to suppress evidence .
Defendant David Williams has moved to suppress evidence and statements (Doc. No. 14) and the government has moved for a determination of admissibility pursuant to 18 U.S.C. § 3501 (Doc. No. 16). From the evidence adduced at the suppression hearing, the undersigned makes the following findings of fact and conclusions of law:
FACTS
1. In November 1998, federal Bureau of Alcohol, Tobacco, and Firearms Special Agent Dana Nichols, with other law enforcement agencies, began investigating a triple homicide which had occurred in May 1998 in Ferguson, Missouri. During her investigation, Agent Nichols learned that defendant David Williams had flourished a firearm at one Aman West in the presence of one of the homicide victims, Donna Beasley.
2. On July 15, 1999, Agents Nichols and Baratti interviewed Williams in the St. Louis County Jail, where he was incarcerated for probation violation. At the beginning of the interview, Agent Nichols told Williams that she was there to interview him about the homicides and the weapon flourishing under investigation, not for the probation violation for which he was then incarcerated. She advised Williams of his constitutional rights to remain silent and to counsel by having them read to him from a written warning and waiver form and by having him read the form out loud. Williams signed the form indicating that he understood his rights and waived them. Gov. Exh. A. Thereafter, Agent Nichols questioned Williams about firearms and Williams made oral statements. Approximately five minutes after Police Det. Mudd entered the interview room, Williams stated for the first time that he had nothing more to say without an attorney. Agent Nichols then terminated the interview. No threat, coercion, or promise was made to induce Williams to make any statement. He was not intoxicated during the interview. When the interview ended, Williams returned to his jail cell.
3. On December 16, 1999, the instant federal indictment was filed against Williams. On December 20, Agent Nichols arrested Williams on the federal indictment and took custody of him at the jail for federal processing and presentation before a United States Magistrate Judge for an initial appearance. Initially, Agent Nichols orally advised Williams of his federal constitutional rights to remain silent and to counsel, which he understood. Besides obtaining biographical information from him, she asked Williams whether he had anything to say about the murders she had questioned him about on July 15. In response, Williams reiterated his earlier statements. None of Williams' statements was coerced.
DISCUSSION
The motion to suppress should be denied. The statements defendant Williams made to Agent Nichols on July 15 and December 16, 1999, are the subject matter of the motion. On each of these occasions, defendant was in custody and was subjected to interrogation by Agent Nichols. The admissibility of custodial statements of a defendant which resulted from police interrogation depends upon whether the defendant had been advised of his rights, as prescribed by Miranda v. Arizona, 384 U.S. 436 (1966); whether the defendant knowingly and voluntarily waived the Miranda rights, North Carolina v. Butler, 441 U.S. 369, 373, 375-76 (1979); and whether the statements were voluntary. On each occasion, Williams was advised of his rights under Miranda and he voluntarily waived them. On July 15, his waiver was explicit and in writing. On December 16, the waiver is implied from the totality of the circumstances, including the background, experience, and conduct of Williams. North Carolina v. Butler, 441 U.S. at 373, 375-76. Williams was not intoxicated, knew his rights, and had invoked them on July 15.
Defendant argues that his statement was involuntary, because the agents falsely told him on July 15 that his answers to their questions would not be used against him in his probation revocation proceedings. This argument is without merit for several reasons. First, there is no evidence before this Court that defendant's statements were in fact used against him in any probation revocation proceedings. Second, the case at bar does not involve a probation revocation. And third, the circumstances of the interviews in no way indicated that his statements would not be used against him in any case. The July 15 statements were not rendered involuntary because the agents told defendant that they were not going to ask him about the probation revocation.
The fact that Williams had invoked his right to remain silent and his right to counsel on July 15 did not constitutionally prevent Agent Nichols from questioning him on December 16. Three factors are relevant to whether the December 16 interview questioning was constitutionally proper. Michician v. Mosley, 423 U.S. 96, 103 (1975). First, on July 15, after he invoked his rights, Agent Nichols immediately ended the interview. Second, she did not re-question him until after he was indicted five months later and not until after she again advised him of his constitutional rights to remain silent and to counsel. Third, she asked him about the same subject matter as the July 15 interview. The fact that the second interview was on the same subject as the interview in which he invoked his rights to counsel and to remain silent does not by itself render the second interview unconstitutional. Brown v. Caspari, 186 F.3d 1011, 1014-15 (8th Cir. 1999); United States v. House, 939 F.2d 659, 662 (8th Cir. 1991). In the circumstances of both interviews, Agent Nichols scrupulously honored the July 15th invocation of his rights. The passage of time between the interviews was so long that there could have been no intent on Agent Nichols' part to wear down defendant's resolve to remain silent or to require the presence of counsel. Brown v. Caspari, 186 F.3d at 1015.
Finally, Williams' statements on both July 15 and December 16 were voluntary. They were not the result of government overreaching, such as coercion, deception, or intimidation.Colorado v. Connelly, 479 U.S. 157, 169-70 (1986); Moran v. Burbine, 475 U.S. 412, 421 (1986); United States v. Jordan, 150 F.3d 895, 898 (8th Cir. 1998), cert. denied, 119 S.Ct. 1153 (1999); United States v. Goudreau, 854 F.2d 1097, 1099 (8th Cir. 1988).
For these reasons,
IT IS HEREBY ORDERED that the motion of the government for a determination of admissibility (Doc. No. 16) is denied as moot.
IT IS HEREBY RECOMMENDED that the motion of defendant to suppress evidence and statements (Doc. No. 14) be denied.
The parties are advised they have ten (10) days to file written objections to this Order and Recommendation. The failure to file objections may result in a waiver of the right to appeal issues of fact.
Signed this 28th day of February, 2000.