BARRY J

BARRY J. PORTMAN

Federal Public Defender

SHAWN HALBERT

Assistant Federal Public Defender

450 Golden Gate Avenue

San Francisco, CA 94102

Telephone: (415) 436-7700

Counsel for Defendant XXX XXX

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

XXX XXX,

Defendant.

)

No. CR-00-0000 ABC

DEFENDANT’S REPLY IN SUPPORT OF MOTION TO SUPPRESS STATEMENTS

Date: February 21, 2001

Time: 2:15 p.m.

Court: Honorable Charles R. Breyer

By the morning of October 4, 2000, XXX XXX had been held for seventy-two straight hours in San Francisco County Jail without any contact with an attorney or anyone to assist him. The only people with whom he had contact during these seventy-two hours were skilled and well-trained FBI and San Francisco Police Department interrogators who were trying to get Mr. XXX XXX to confess to a crime before he ever saw a lawyer or a judge. By October 3, 2000, a day earlier, it was already known to federal and state law enforcement that Mr. XXX XXX was suicidal. This was consistent with psychiatric reports about Mr. XXX XXX prepared in connection with his federal sentencing on October 21, 1997, which revealed that in addition to being mildly mentally retarded with an IQ of 67, Mr. XXX XXX also suffered from Major Depressive Disorder with severe psychotic features when without antipsychotic medication and had repeated hospitalizations from 1989 through 1997 for suicide attempts or suicidal ideation.

Mr. XXX XXX was being held a five minute drive away from the federal building in San Francisco, at the San Francisco County Jail at 850 Bryant Street. The government did not bring Mr. XXX XXX before a magistrate judge on October 2, 2000, the date on which the U.S. Attorney’s Office had committed to prosecuting Mr. XXX XXX and on which there was already probable cause for the arrest. The federal government did not bring Mr. XXX XXX before a magistrate judge on October 3, 2000, the date on which the federal government obtained a signed complaint from Magistrate Judge Joseph Spero. Rather, the government waited another day, until October 4, 2000, until they brought the suicidal and mildly retarded Mr. XXX XXX to federal court.

The FBI knew that Mr. XXX XXX would finally, seventy-two hours after he was arrested, have an opportunity to have a lawyer appointed to represent him after he went down to magistrate court that morning. The FBI also knew that it did not yet have a confession from Mr. XXX XXX and that he had declined to speak to the FBI or the San Francisco Police Department during an attempted interrogation three days earlier. Thus, in the early morning hours of October 4, 2000, before Mr. XXX XXX was appointed an attorney, the FBI tried again to get a confession. They offered to Mr. XXX XXX kindness and sustenance, offering him coffee and candies. They told him that it would benefit him to talk to them, a claim that turned out to be utterly without merit. Moments before he was brought down to magistrate court and had a lawyer to represent him, Mr. XXX XXX acquiesced, and spoke to the two federal agents who had reopened a previously terminated interrogation.

Mr. XXX XXX’s invocation of his right to silence was not "scrupulously honored" on October 1 or October 4, 2000. Nor was Mr. XXX XXX timely presented to a magistrate in federal court. Thus, his statements must be suppressed.

ARGUMENT[1]

I. MR. XXX XXX WAS INTERROGATED IN VIOLATION OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION

A. Mr. XXX XXX’s October 1 Statement Must be Suppressed Because the FBI Agents Improperly Continued to Question Him After he Had Refused to Speak to Them

Even under the version of the first interrogation provided in the FBI 302 prepared by Special Agent Margaret Eason, Mr. XXX XXX’s few statements at the first interrogation should be suppressed.

According to SA Eason, she and SFPD Inspector Horan went to interrogate Mr. XXX XXX at the police station. See FBI 302 regarding interrogation of Mr. XXX XXX on October 1, 2000, Ex. E to defendant’s opening brief ("Def. Mot."). They asked Mr. XXX XXX several introductory questions. Id. According to SA Eason, she told Mr. XXX XXX his Miranda rights and he said that he understood them. Id. SA Eason asked if keeping those rights in mind, Mr. XXX XXX wished to speak to them. Id. Mr. XXX XXX replied that he did not want to talk to her because he knew that they knew everything anyway. Id.

According to SA Eason’s account in the FBI 302, even after Mr. XXX XXX said that he did not wish to speak to her, she responded to Mr. XXX XXX by saying that the FBI in fact did not know everything. Id. SA Eason alleged that Mr. XXX XXX then asked if there was a photograph of him inside a bank. Id. SA Eason acknowledges that once again she asked Mr. XXX XXX if he wished to waive his rights and continue talking to them. Id. Mr. XXX XXX said that he did not want to see the photograph. Id. Despite what Mr. XXX XXX said, SA Eason showed him the bank surveillance photograph. Id. Mr. XXX XXX viewed the photograph and once again said, "I have nothing to say." Id. SA Eason and Inspector Horan terminated the interview. Id.[2]

The government now argues that Mr. XXX XXX did not invoke his right to silence on October 1, 2000. Gov. Opp. at 8. Although it is not clear from the government’s opposition, this is a two-part question -- first, whether Mr. XXX XXX invoked his right to silence during the October 1 interrogation the first time he said that he did not wish to speak to SA Eason, thus requiring suppression of the few and more minor comments he made during the next few minutes of that same interrogation, and second, whether Mr. XXX XXX invoked his right to silence by the end of the October 1 interrogation, which impacts the reopening of the interrogation on October 4.

With respect to the first question, whether Mr. XXX XXX invoked his right to silence during the October 1 interrogation the first time he said that he did not wish to speak to SA Eason, the answer could not be more evident. In Miranda v. Arizona, 384 U.S. 436, 473-74 (1966), the Court held that "[i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." (emphasis added). The government’s own report indicates that Mr. XXX XXX stated that "he did not wish to talk to [SA Eason]." Def. Mot., Ex. E (emphasis added). The government’s justification of SA Eason’s further questioning -- that she was just trying to let Mr. XXX XXX know that his invocation of his constitutional right to silence in the face of questioning by law enforcement was "predicated" on the false assumption that the agents already "knew everything" -- is a stretch. Mr. XXX XXX was under no obligation to give an explanation for his invocation of a constitutional right that was satisfactory to SA Eason. The difference between this case and United States v. Johnson, 56 F.3d 947, 955 (8th Cir. 1995), Gov. Opp. at 8, is that the defendant in Johnson never said that he did not want to talk to the agents. This is a critical distinction for obvious reasons. The fact that SA Eason continued with questioning and continued showing the interrogation by showing Mr. XXX XXX the surveillance photograph after he indicated that he did not want to see it demonstrates that his right to silence was not "scrupulously honored," as required by United States v. Mosley, 423 U.S. 96 (1975). SA Eason deliberately attempted to get Mr. XXX XXX to make a statement after he said that he did not wish to talk to her. Thus, any further statements by Mr. XXX XXX during that interrogation must be suppressed.

Regarding the second question raised by the government, whether Mr. XXX XXX invoked his right to silence by the end of the October 1 interrogation, the government’s contention that there was no such invocation is at odds with all of the evidence for the following reasons:

C According to San Francisco Police Department Inspector Horan’s Record of Investigation, Mr. XXX XXX was not interview on October 1, 2000 because he "refused" an interview. Gov. Opp., Ex. A-(B). Inspector Horan’s original conclusion is more reliable than the prosecution’s recharacterization of what happened.

C Mr. XXX XXX said at least twice during the interrogation, by SA Eason’s own account, that he did not want to talk, and he stated that he did not want to view the surveillance photograph, which SA Eason showed him anyway. This was a repeated and clear invocation of Mr. XXX XXX’s right to silence.

C Mr. XXX XXX refused to sign a Waiver of Rights form presented to him by the agents. Def. Mot., Ex. E.

C SA Eason’s own account in the FBI 302 states that Mr. XXX XXX repeatedly said that he did not want to talk to her.

C The fact that the two agents terminated the interview is fully consistent with the actions of law enforcement agents who have encountered a suspect who has invoked his right to silence. The FBI has shown itself to be persistent and resourceful in this and other cases. There is no reason that the two agents would have left Mr. XXX XXX on a Sunday morning at San Francisco County Jail if they thought that he intended to speak with them.

Thus, any statements alleged to have been made by Mr. XXX XXX at the first interrogation must be suppressed.[3]

B. Mr. XXX XXX’s October 4 Statement Must be Suppressed Because the FBI Agents Improperly Reopened Questioning of Mr. XXX XXX After he had Refused to Speak to Them

The FBI’s questioning of Mr. XXX XXX on October 4, 2000 was outrageous. After leaving Mr. XXX XXX for three days in jail without any contact with anyone, including an attorney, the FBI gave him coffee and food and deliberately reopened questioning, with full knowledge that he had refused to be questioned by another FBI agent three days before. As the government points out, the issue is whether Mr. XXX XXX’s invocation of his right to silence was "scrupulously honored," as required by Michigan v. Mosley, 423 U.S. 96 (1975). There is nothing to suggest that Mr. XXX XXX’s invocation of his constitutional right to silence was "scrupulously honored"; in fact, the only possible interpretation of the actions by the FBI agents is that they were trying to get Mr. XXX XXX to change his mind about his invocation of his constitutional rights during in the two hours before he had counsel appointed for him.

In Mosley, the Supreme Court found that the police had scrupulously honored a defendant’s prior invocation of the right to remain silence where four conditions existed: first, the police immediately ceased the first interrogation; second, the police resumed questioning after the passage of a significant period of time; third, the police gave a fresh set of warnings; and fourth, the police restricted the second interrogation to a crime that had not been the subject of an earlier interrogation. Id., 423 U.S. at 105-106. Thus, the Court found that the police had not "persist[ed] in repeated efforts to wear down [the defendant’s] resistance and make him change his mind." Id. In United States v. Hsu, 852 F.2d 407, 410 (9th Cir. 1988), the Ninth Circuit found that the factors set out in Mosley were just facts for a court to consider in deciding whether law enforcement had "scrupulously honored" a defendant’s invocation; in other words, not all factors needed to be present for a statement to be admissible. Hsu concerned an unusual circumstance in which a DEA Agent who did not know that the defendant had just invoked his right to silence, read the defendant his rights, and when the defendant waived his rights, questioned the defendant on the same subject on which he had just been questioned. Id. at 409-410. The court found that it was appropriate to look at the "egregiousness" of a particular case, id. at 411, and that under the circumstances in that case, law enforcement had displayed respect for the defendant’s invocation of rights and had not tried to pressure him. Id. at 409.

Here, there was more than the innocent mistake by law enforcement described in Hsu. Mr. XXX XXX was known to be suicidal by the FBI agent who interrogated him on October 4, Agent Parker. Gov. Opp., Ex. A, & 11. Unfortunately, this was foreseeable because Mr. XXX XXX had a history of mental and psychiatric issues, including suicidal acts and ideation. In fact, when Mr. XXX XXX was sentenced by District Court Judge Vaughn R. Walker in October, 1997, he was known to be suffering from Bipolar Disorder, Major Depressive Disorder -- recurrent with psychotic features, Polysubstance Dependence, Mild Mental Retardation (IQ’67), and suicidal tendencies. See, e.g., Psychological Evaluation of XXX XXX, attached hereto as Exhibit I.[4] In fact, Mr. XXX XXX had received a downward departure from Judge Walker based in part on Mr. XXX XXX’s "limited degree of acuity," and Judge Walker had recommended that Mr. XXX XXX serve his sentence at the Rochester, Minnesota or Springfield, Missouri facilities in light of his psychiatric issues. Mr. XXX XXX did serve part of his sentence at Rochester.

Unlike in Hsu, where law enforcement innocently re-questioned the defendant a short time after he had already been questioned without knowing what had happened earlier, the agents here knew that Mr. XXX XXX had invoked his right to silence in his October 1, 2000 interrogation. Def. Mot., Ex. D, & 5. Whereas the defendant in Hsu was questioned just shortly after the first questioning, before the pressure on him had any time to build, Mr. XXX XXX was kept in a jail cell for seventy-two hours without knowing what would happen to him or where he was going. Unlike the innocent agent in Hsu, the FBI agents here deliberately used the softer side of coercion -- provision of food, coffee, and promises that it would be to his benefit to talk to agents because then the U.S. Attorney’s Office would know that he cooperated[5] -- to wear down Mr. XXX XXX’s will.

Mr. XXX XXX acknowledges that he did receive a new set of Miranda warnings and waive his rights, one of the many factors that this Court must consider, but the other factors in this case indicate that he waived his rights because he had been worn down, which is exactly what the Supreme Court in Mosley was trying to avoid. Further, delay has also been found to suggest involuntariness of a Miranda waiver, if one exists. United States v. Wilson, 838 F.2d 1081, 1087 (9th Cir. 1998), citing Frazier v. United States, 419 F.2d 1161, 1167 (D.C. Cir. 1969). As indicated below, there was unnecessary delay in this case, which is another factor for the Court to consider regarding the second interrogation.

II. MR. XXX XXX WAS INTERROGATED IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

The Sixth Amendment right to counsel is distinct from the Fifth Amendment right to counsel created by Miranda. United States v. Karr, 742 F.2d 493, 495 (9th Cir. 1984), citation omitted. "The right attaches >when formal judicial proceedings are initiated against an individual by way of indictment, information, arraignment or preliminary hearing.’" Id.

Under normal circumstances, the filing of a complaint alone does not constitute the commencement of adversary proceedings. See, e.g., United States v. Pace, 833 F.2d 1307, 1312 (9th Cir. 1987). However, in this case, there is no dispute that adversary proceedings had begun on October 2 or October 3 at the latest. This Court should not find that the Sixth Amendment right had not attached just because the government had not brought Mr. XXX XXX to magistrate court, for this would reward the government for its inexcusable failure to bring Mr. XXX XXX on the mile or so trip to federal court on either (1) the day that the U.S. Attorney’s office had officially decided to prosecute Mr. XXX XXX, October 2; (2) or even the day that the federal complaint was filed and state charges were dropped in favor of the federal prosecution, October 3. Gov. Opp. at 4-5.

In this case, "the government ha[d] committed itself to prosecute" and "the adverse positions of government and defendant ha[d] solidified" by October 2 at least, and absolutely by October 3. Kirby v. Illinois, 406 U.S. 682, 689 (1972). While bright line rules are generally helpful, this Court should not encourage delay in presenting defendants to federal court by allowing the government to hold a defendant in jail and not bring him to court, and then interrogate him without a lawyer on the basis that he does not have a right to counsel because he has not yet been brought to court. Unlike in Pace, where the defendant made his unprompted confession to a cellmate on the same day he was arrested out of state, Mr. XXX XXX’s confession came three days after he was arrested, two days after he could and should have been brought to federal court while being held at a local jail, at a reopened interrogation by federal agents in the moments before he was arraigned. Thus, Mr. XXX XXX’s Sixth Amendment right to counsel was violated and his October 4 confession should be suppressed.

III. MR. XXX XXX WAS INTERROGATED IN VIOLATION OF 18 U.S.C. Section 3501

In his opening brief, Mr. XXX XXX argued that his October 4, 2000 confession was obtained in violation of Title 18 Section 3501(b), which sets out the factors that a court must review to determine whether a confession is voluntary. Section 3501(c) provides that a confession shall not be inadmissible solely because of delay in bringing a person before a magistrate if such confession was made within six hours immediately following his arrest or detention. 18 U.S.C. ' 3501(c). Mr. XXX XXX explained that the law in the Ninth Circuit still holds that delay of more than six hours alone may form a basis for suppression, regardless of voluntariness. Def. Mot. at 12, citing United States v. Alvarez-Sanchez, 975 F.2d 1396 (9th Cir. 1992), rev’d on other grounds, 511 U.S. 350 (1994). The delay in this case clearly exceeds the six hour delay described in section 3501(c) and requires suppression of the confession.

The government does not respond at all to this basis for Mr. XXX XXX’s motion on the grounds that Mr. XXX XXX stated that he would refrain from addressing the issue fully until "learning the government’s position." Gov. Opp. at 1 n. 1. Mr. XXX XXX never refrained from argument on this issue. Instead, he stated that he would "refrain from addressing the issue of whether section 3501 is applicable to his case on the basis that he had been arrested on state rather than federal charges until he is able to learn the government’s position on this issue." Def. Mot. at 12-13 (emphasis added).

As it turns out, the government did not make the argument that section 3501 is inapplicable due to Mr. XXX XXX’s arrest on state rather than federal charges. Nor could it. Based on the time line presented by the government’s opposition, Mr. XXX XXX’s charge was identified as a federal one by October 2, 2000 at 1:45 p.m., forty-two hours before Mr. XXX XXX was interrogated again and forty-four hours before he was presented to a magistrate court. Gov. Mot., Ex. C, & 10. In fact, after the federal complaint was signed and sent to the state authorities, the state had officially declined to prosecute Mr. XXX XXX by October 3, 2000 at 1:45 p.m., eighteen hours before Mr. XXX XXX was interrogated again and twenty hours before he was presented to a magistrate court. Gov. Mot., Ex. A, & 12, Ex. C, & 11.

There is no excuse for this delay. It is, of course, virtually impossible to delve into the minds of federal agents, and no federal agent will ever have reason to admit that a delay was due in part or wholly to a desire to try to elicit a confession. But this Court can look to the undisputable fact that Mr. XXX XXX could have been arraigned in federal court on October 2, or at the very least on October 3, 2000, on a morning or an afternoon calendar. Magistrate courts will hold an afternoon calendar if a person is not available for a morning calendar. It is not infrequent for magistrate courts to sign complaints before duty calendar so that defendants may be arraigned, or for attorneys from the Office of the Federal Public Defender to be called down to magistrate court in the afternoon for the arraignment of a defendant who has just been brought in to court. Mr. XXX XXX was sitting in San Francisco County Jail, a very short distance away from the Federal Building in San Francisco. There is actually no reason why his rights under 18 U.S.C. ' 3501 were not honored with a timely presentment. Thus, on the record, this Court should suppress the October 4 confession.[6]

CONCLUSION

For the foregoing reasons, Mr. XXX XXX respectfully requests that this Court enter an order suppressing any statements made or alleged to have been made by him on October 1 and 4, 2000. If the Court is not able to reach a decision based on this motion, Mr. XXX XXX requests that the Court hold an evidentiary hearing in order to obtain sufficient evidence on which to decide the motion.

[1]The arguments that Mr. XXX XXX made regarding a warrantless arrest and whether there was probable cause for the arrest were based on the assumption that there were no further relevant materials regarding the state arrest and prosecution. This assumption was based on Mr. XXX XXX’s December 11, 2000 written request to the government for any and all documentation relating to a possible or considered state prosecution of this case, including communications between the police and local prosecuting authorities and/or communications between federal and state authorities, on the basis that such material would affect the arguments that Mr. XXX XXX made in his motion. The government provided some other supplemental material, but indicated in a December 12, 2000 letter that no further material existed.

It was on the basis of this representation that Mr. XXX XXX researched and argued issues based on the original arrest and the fact that Mr. XXX XXX was held for too long without a determination of probable cause. In its opposition, the government attached materials obtained after Mr. XXX XXX filed his motion. If Mr. XXX XXX had been in possession of such materials, as he had requested, he would not have included some of these argument in his original motion. In light of the government’s Exhibit A-A, attached to the government’s Opposition, Mr. XXX XXX will not further pursue the argument that he was held for longer than forty-eight hours without a probable cause determination. In light of Exhibits A, B and C to the government’s Opposition, describing the state investigation and communications between agents, Mr. XXX XXX will not further pursue the argument that there was not probable cause for his arrest.

[2]Mr. XXX XXX’s recollection of the interrogation is that it was shorter and that less was said. See Def. Mot., Ex. D. Regardless, under either version, the alleged statements should be suppressed.

[3]As argued in his original motion, Mr. XXX XXX’s statement indicating that he knew that they wanted to see him about a bank robbery should not be admitted for the independent reason that it is misleading and highly prejudicial -- he knew why he was being questioned because the police had told him. Thus, it is not an incriminatory statement.

[4]Exhibit H was the last exhibit to defendant’s opening brief, so the next exhibit continues the sequence.

[5]FBI agents acknowledge that they told Mr. XXX XXX that they would tell the U.S. Attorney’s Office that he cooperated but that they did not tell him anything else, presumably including that it would be to his benefit if the U.S. Attorney’s Office knew that he cooperated. Gov. Opp., Ex. C, & 15. While the one statement certainly seems to imply the other, an evidentiary hearing would assist on this point. Further, Mr. XXX XXX’s version of the second interrogation varies somewhat from the FBI’s version. Again, an evidentiary hearing would be necessary to resolve these discrepancies.

[6]Mr. XXX XXX had argued that under section 3501(b), there is substantial evidence that Mr. XXX XXX’s confession was not voluntary, and that facts that would be introduced at an evidentiary hearing on this issue include the delay in presenting Mr. XXX XXX, the fact that he was left alone for three days, the fact that he is of extremely low IQ and has known mental health issues, that he had previously refused to be questioned and had refused to waive his rights, and the false and manipulative promises made by the FBI that he would be helped by confessing. There is no need for further government briefing on this issue prior to this Court’s holding an evidentiary hearing, if the Court does not rule in Mr. XXX XXX’s favor on the papers alone.