US V. Hill, et al. CR-99-112-M 02/11/00 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America, Plaintiff

v. Criminal No. 99-112-1-4-M Opinion No.

Allister Hill; Damion Murdock; Bobby Robinson; and Robin Goss, Defendants

O R D E R

Defendant Robinson moves to exclude from evidence at trial

any testimony by DEA agents to the effect that he made self-

incriminating statements. The government counters that defendant

was properly warned under Miranda, waived those rights by

agreeing to cooperate, voluntarily answered questions, and

incriminated himself and others. Therefore, says the government,

defendant's statements were voluntary, made only after he

knowingly and intelligently waived his Miranda rights, and

constitute admissible evidence. Miranda v. Arizona,

(19 6 6) . An evidentiary hearing was held on January 28, 2000, and

supplemental memoranda and affidavits have been filed. Having

considered the testimony, affidavits, and legal memoranda, the

motion to exclude or suppress is granted.

The circumstances involved here are somewhat unique and go

beyond typical factual disputes such as whether an oral Miranda

waiver was given by a defendant, whether unrecorded incriminating

statements were in fact made, and whether a defendant did or did

not invoke his right to counsel before custodial questioning

began. Although all of those issues are present here, this case

also presents substantial procedural issues related to the

prosecution's failure to disclose both written records

memorializing statements allegedly made by defendant, and the

substance of oral statements allegedly made by the defendant, "in

response to interrogation by a person then known to defendant to

be a government agent, that the government intends to use at

trial." Fed. R. Crim. P. 16(a)(1) (A); see also LCrR 16.1(a)(1).

It is of course the government's burden, as a condition of

admissibility, to demonstrate by a preponderance of the evidence

2 that before giving a statement during a custodial interrogation,

a defendant voluntarily, knowingly, and intelligently waived his

Miranda rights. The evidence in this case, taken as a whole, is

not very persuasive - indeed the figurative scales measuring

relative persuasive weight probably remain close to balance.

This is so because while a DEA agent testified that defendant was

informed of his rights under Miranda (from a DEA form that

presumably accurately recorded those rights) , agreed to

cooperate, and made incriminating statements, corroborating

evidence is virtually absent. For example, written waiver forms

were readily available, but not used; no written statement was

taken from defendant; no written or typed statement was signed by

defendant; no notes were taken by any of the DEA agents during

the interrogation; and, although the interrogation room

prominently displayed a number of unavoidable signs disclosing

that the proceedings were being videotaped by the local police

department, no effort was made by the DEA to obtain and preserve

a copy of that tape until a day or two before the suppression

hearing. (The interrogation was in fact videotaped.) While none

3 of those factors is required to establish the voluntariness of

defendant's alleged waiver, their absence is disquieting.

Moreover, defendant argues that he not only made no

statements, but unequivocally invoked his right to counsel. See,

e.g., Edwards v. Arizona,

(1981); Smith v.

Illinois,

(1984). His story is not without support.

Defendant was afforded the opportunity to have a phone call made

on his behalf (which the lead investigator placed and conducted

from the interrogation room and in defendant's presence). The

person called. Shannon Loughlin, credibly testified that the

agent told her of defendant's arrest, informed her of his

imminent transportation to Concord for arraignment, and advised

that she might seek legal counsel for defendant. She testified

that the agent was repeating what she could hear defendant saying

in the background - that he needed a lawyer and that she should

try to find him a lawyer. The prosecution suggests that

defendant's comments, if made, were related solely to his

upcoming arraignment, and were unrelated to any invocation of

Miranda rights. Perhaps, but it is hardly clear.

4 It does seem an odd practice for an experienced DEA agent to

pass along that kind of burdensome request when he well knows

(and could have easily informed a cooperating suspect) that at

arraignment his rights to counsel would be discussed and either

counsel would be provided for him if he could not afford counsel,

or he would be free to arrange for private counsel. And,

defendant probably knew that as well, having had previous

experience with the criminal justice system. Based on the

evidence of record, I find that defendant did request the

assistance of counsel, and the government has not proven by a

preponderance of the evidence that he invoked that right in an

equivocal or limited way unrelated to his interrogation, or that

he knowingly, intelligently, and voluntarily waived that right

before his custodial interrogation began.

In addition, the only notes taken by law enforcement

officers relative to incriminating statements made by defendant

were taken by Agent Houle, in his car, while he was driving

defendant to Concord for arraignment, after defendant asked for

legal counsel. Those notes are apparently of statements made by

5 defendant during the custodial interrogation at the police

station, and reiterated in the car on the way to Concord. The

government's explanation for taking notes while driving a car but

not at the police station - a mere interviewing technique - seems

odd. One might expect notes of criminal admissions to have been

made at the station - after confession but before the drive - or

at the courthouse after arrival. If the defendant made

statements at the police station, and reiterated them in the car,

there would seem to be no urgency compelling note-taking while

driving. But, if the first incriminating statements were made in

the car, then perhaps some urgency to record the statements might

be in play. In any event, defendant had invoked his right to

counsel before the drive to Concord, and further interrogation

absent counsel was impermissible. See Edwards v. Arizona, supra.

Of course, the videotape of the custodial interrogation

procedure would conclusively resolve all doubt as to the facts,

(i.e., whether defendant waived his rights, made statements,

agreed to cooperate, or invoked his right to counsel). But, it

is not available. Somersworth Police Captain Krutchfield

6 testified that he thought the taping equipment might have been

inoperable when defendant was interrogated, or that the tape had

already been recorded over prior to the hearing on January 28.

(The same tape is apparently used continuously and is recorded

over about every 30 days or so.) But defense counsel pursued the

matter after the hearing and reports, without dispute by the

prosecution, that defendant's interrogation was indeed taped, but

that the tape was recorded over or erased in the usual course, on

December 26, 1999.

That fact is significant for a few reasons. First,

government counsel was aware that DEA agents claimed to have

obtained incriminating statements from defendant as early as

November 11, 1999, when counsel informed the Magistrate Judge at

defendant's detention hearing that defendant had made inculpatory

statements. Second, in violation of Fed. R. Crim. P. 16(a)(1)(A)

and LCrR 16.1(a) (1), the prosecutor did not disclose either the

substance of those alleged oral statements, or the DEA's written

report referencing the alleged statements, within fourteen (14)

days after arraignment. Indeed, on November 17, 1999, the

7 prosecutor advised defendant's counsel, by letter, that "[t]he

government is not aware of any statement made by your client to

persons known to your client to be law enforcement officers."

The explanation for that mistake and failure to disclose is

certainly reasonable - the prosecutor forgot about the DEA

agent's passing remark and his own bail hearing statements, no

doubt expecting to later send a routine disclosure letter based

upon the investigative case file. But, the case file provided to

the prosecutor by the DEA omitted (through administrative error)

Agent Houle's report, which made reference to defendant's alleged

admissions. When Agent Houle informed the prosecutor, in early

January of this year, that he found it surprising that defendant

was going to trial in light of his prior confession, the

prosecutor expeditiously tracked down the report and sent it to

defense counsel. But that was too little and too late.

The dispositive interrogation videotape had already been

erased or recorded over. Defense counsel persuasively argues

that had timely disclosure been made, as required by the rules of

procedure and our local rules, he would have had ample opportunity to investigate the matter and would likely have

obtained the videotape long before it was destroyed. And, the

government probably would have obtained it as well, since the

prosecutor likely would have asked the DEA for corroborating

evidence to help establish a Miranda waiver had he seen the

agent's report in a timely fashion but saw no written statement,

no written waiver, no signed statement, no contemporaneous notes,

and was informed that what notes existed were taken later while

driving defendant to Concord.

The prejudice to defendant is apparent and presumed.

Responsibility for the loss of the video, and its dispositive

evidentiary character, is squarely on the government, due to its

failure to comply with the applicable rules of procedure. Given

that failure, as well as the absence of reasonable justification

for it, the ambiguous nature, taken as a whole, of the evidence

of defendant's waiver of his Miranda rights, credible evidence

that defendant invoked his right to counsel in the booking room

where he was being interrogated, and the presumptive prejudice to

defendant occasioned by the loss of potentially critical evidence

9 regarding whether he waived or invoked his rights, or made

inculpatory statements, his motion ought to be and is hereby

granted. Defendant was deprived of the opportunity to

investigate the circumstances of his alleged waiver and the

opportunity to effectively present evidence of particular

relevance to the government's claim of express waiver. See,

e.g.. United States v. Lanoue,

(1st Cir. 1995);

United States v. Hemmer, et a l .,

(1st Cir. 1984) .

Conclusion

Having failed to comply with the applicable rules of

procedure, to the prejudice of defendant, evidence of alleged

oral statements made by defendant to Agent Houle or other DEA

agents during his initial interrogation, or thereafter while

being transported to Concord, shall not be admitted at

defendant's trial in the government's case-in-chief. Fed. R. Cr.

P. 16(d)(2). In addition, because I also find that the

government has not met its burden to establish, by a

preponderance of the evidence, a knowing, intelligent, and

10 voluntary waiver by defendant of his Miranda rights, before

initiating a custodial interrogation, and that plaintiff invoked

his right to counsel at some point, certainly before any

statements were made during the drive to Concord, and perhaps

before any interrogation at all. Therefore, statements made by

defendant during his custodial interrogation, if any, are

inadmissible in the government's case-in-chief.

SO ORDERED.

Steven J. McAuliffe United States District Judge

February 11, 2000

cc: Jeffrey S. Downing, Esq. Stephen A. White, Esq. Harry N. Starbranch, Jr., Esq. Rudolph F. Miller, Esq. Jonathan R. Saxe, Esq.

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