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    The Flawed Miranda Warnings Were Compounded by Conflicting Tribal and Miranda Warnings

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    mary eng
    This document is a reply brief filed by the defense attorney in response to the government's opposition to a motion to suppress statements. The defense argues that (1) the defendant was not properly advised of his Miranda rights because the agent said he would get a lawyer only if charged in federal court, (2) the agent failed to clarify conflicting tribal and Miranda warnings, and (3) under the circumstances, the defendant could not reasonably understand the nature of his rights. The defense requests that the court suppress all statements made by the defendant.

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    The Flawed Miranda Warnings Were Compounded by Conflicting Tribal and Miranda Warnings

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    mary eng
    33 views5 pages
    This document is a reply brief filed by the defense attorney in response to the government's opposition to a motion to suppress statements. The defense argues that (1) the defendant was not properly advised of his Miranda rights because the agent said he would get a lawyer only if charged in federal court, (2) the agent failed to clarify conflicting tribal and Miranda warnings, and (3) under the circumstances, the defendant could not reasonably understand the nature of his rights. The defense requests that the court suppress all statements made by the defendant.

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    The Flawed Miranda Warnings Were Compounded By Conflicting Tribal and Miranda Warnings

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    This document is a reply brief filed by the defense attorney in response to the government's opposition to a motion to suppress statements. The defense argues that (1) the defendant was not properly advised of his Miranda rights because the agent said he would get a lawyer only if charged in federal court, (2) the agent failed to clarify conflicting tribal and Miranda warnings, and (3) under the circumstances, the defendant could not reasonably understand the nature of his rights. The defense requests that the court suppress all statements made by the defendant.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    33 views5 pages

    The Flawed Miranda Warnings Were Compounded by Conflicting Tribal and Miranda Warnings

    Uploaded by

    mary eng
    This document is a reply brief filed by the defense attorney in response to the government's opposition to a motion to suppress statements. The defense argues that (1) the defendant was not properly advised of his Miranda rights because the agent said he would get a lawyer only if charged in federal court, (2) the agent failed to clarify conflicting tribal and Miranda warnings, and (3) under the circumstances, the defendant could not reasonably understand the nature of his rights. The defense requests that the court suppress all statements made by the defendant.

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    of 5

    Page 1 REPLY TO GOVERNMENTS RESPONSE TO MOTION TO SUPPRESS STATEMENTS

    Harold P. DuCloux, III


    Assistant Federal Public Defender
    101 S.W. Main Street, Suite 1700
    Portland, Oregon 97204
    (503) 326-2123 Telephone
    (503) 326-5524 Facsimile
    [email protected]
    Attorney for Defendant
    IN THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF OREGON
    UNITED STATES OF AMERICA,
    Plaintiff,
    v.
    EDGAR FARREL BOISE,
    Defendant.
    CR No. 07-477-RE
    REPLY TO GOVERNMENTS
    RESPONSE TO MOTION TO
    SUPPRESS STATEMENTS
    INTRODUCTION
    To comply with Miranda, law enforcement officers must warn the suspect that he has the
    right to an attorney, and that if he cannot afford an attorney one will be appointed for him prior to
    any questioning if he so desires. Miranda v. Arizona, 384 U.S. 436, 479 (1966). The suspect must
    be clearly advised of the unequivocal right to have counsel present both before and during the
    interrogation. United States v. Noti, 731 F.2d 610, 615(C.A. Cal.1984). When an officer advises
    a suspect that the right is contingent on a future condition, the advice is constitutionally infirm and
    Page 2 REPLY TO GOVERNMENTS RESPONSE TO MOTION TO SUPPRESS STATEMENTS
    the resulting statement must be suppressed. United States v. Perez-Lopez, 348 F.3d 839 (9th Cir.
    2003). The government admits that TFA Samuels advice to Mr. Boise was contingent upon a future
    condition: should the defendant be charged with a crime in Federal District Court, off the
    reservation, an attorney would be appointed for him at no expense. See Governments Response,
    p. 4. Therefore, Mr. Boises statements were obtained in violation of his Miranda rights and,
    furthermore, were involuntarily obtained.
    A. Mr. Boise Was Not Informed That He Would Have The Right To Counsel Prior To
    Questioning If He Could Not Afford An Attorney.
    When TFA Samuels stated that Mr. Boise would not have access to a lawyer unless he was
    charged in federal court, TFA Samuels failed to convey to Mr. Boise the governments obligation
    to appoint an attorney for indigent accused. Perez-Lopez, 348 F.3d at 848. In United States v. San
    Juan-Cruz, 314 F.3d 384 (9th Cir.2002), the Court stated, [t]he warning . . . must make clear that
    if the arrested party would like to retain an attorney but cannot afford one, the Government is
    obligated to appoint an attorney for free. Id. at 388 (emphasis added). While Miranda itself
    indicated that no talismanic incantation was required to satisfy its strictures, California v. Prysock,
    453 U.S. 355, 359 (1981), the warning must be clear and not equivocal. San Juan-Cruz, 314 F.3d
    at 387.
    In Perez-Lopez, the officer read Mr. Perez-Lopez his rights from a Miranda card in Spanish.
    The Court translated the warning to mean, you have the right to solicit the court for an attorney if
    you have no funds. Perez-Lopez, 348 F.3d at 848. The Court invalidated this warning because the
    warning was contingent on a future condition: Mr. Perez-Lopez soliciting the court. The word
    solicit implied the possibility of rejection. Id. at 848.
    Page 3 REPLY TO GOVERNMENTS RESPONSE TO MOTION TO SUPPRESS STATEMENTS
    Similarly, in United States v. Connell, 869 F.2d 1349 (1989), the Court rejected warnings that
    gave the government power to control appointment of free counsel based on a future condition. In
    Connell, the defendant was first told that you must make your own arrangements to obtain a lawyer
    and this will be at no expense to the government and later that a lawyer may be appointed to
    represent you. Id. at 1353. The Court held that the warning was constitutionally inadequate, using
    the word may, leaves the impression that providing an attorney, if Connell could not afford one,
    was discretionary with the government.
    The present case is even more contingent. No right to counsel exists unless the defendant
    is charged in federal court. Therefore, he had no right to appointed counsel before and during the
    interrogation because Mr. Boise had not been charged. Accordingly, this Court should find the
    Miranda warning inadequate and suppress any statements made in conjunction with the warning.
    B. The Flawed Miranda Warnings Were Compounded By Conflicting Tribal and Miranda
    Warnings.
    The government relies heavily on Duckworth v. Eagan, 492 U.S. 195 (1989), to justify TFA
    Samuels reading Mr. Boise an inadequate Miranda warning. In Duckworth, the Court addressed
    a situation in which the defendant was properly read his Miranda rights, but police additionally
    stated that an attorney would be appointed to him if and when he went to court. The government
    contends that, although Mr. Boise was read conflicting statements as in San Juan-Cruz, TFA
    Samuels cleared up any confusion by giving Mr. Boise a Duckworth-type clarification.
    In finding the Miranda waiver invalid in San Juan-Cruz, the Ninth Circuit noted with
    disapproval the fact that the defendant was read two conflicting versions of his rights (one version
    advised him that an attorney would be appointed free of charge if he could not afford one, the other
    one did not). San Juan-Cruz, 314 F.3d at 388. The Ninth Circuit went on to note that an agent
    Page 4 REPLY TO GOVERNMENTS RESPONSE TO MOTION TO SUPPRESS STATEMENTS
    could easily rectify any confusion by clarifying his statements or advising [a defendant] to disregard
    the [a]dministrative [r]ights in favor of those that [are] read to him under Miranda. San Juan-Cruz,
    314 F.3d at 389; accord United States v. Garcia-Hernandez, 550 F. Supp.2d 1228, 1233 (S.D. Cal.
    2008). The statement made by TFA Samuels after reading Mr. Boise the two conflicting versions
    of his rights failed to clarify his explanation.
    Indeed, TFA Samuels failed to clarify the conflicting statements twice. First, after reading
    Mr. Boise his Miranda rights and during the reading of the tribal rights, TFA Samuels explained to
    Mr. Boise that you have the right at your own expense to have the presence of an attorney. You
    understand that? And that is the difference between the two forms, but Ill go back to that.
    TFA Samuels further confused the issue during a second attempt:
    The difference between these two rights forms under the Indian Civil Rights Act
    which Warm Springs follows, for the purposes of tribal court, you would have to pay
    for an attorney at your own expense for a lawyer in tribal court. Should you be
    charged with a crime in the United States District Court, off the reservation, one, an
    attorney would be appointed for, for you at no expense to you. Do you understand
    the difference between the two?
    This statement is very different than that made in Duckworth. In Duckworth, the statements made
    by the police were characterized as involving form and phrasing; however, the case here involves
    substance and omission. United States v. Street, 472 F.3d 1298 (11th Cir. 2006).
    First, in Duckworth, the relevant phrase we have no way of giving you a lawyer, but one
    will be appointed for you, if you wish, if and when you go to court is reasoned by the Court to be
    a statement in addition to the Miranda that describes the procedure for appointment of counsel in
    Indiana. Duckworth, 492 U.S. at 205. In the present case, TFA Samuels clearly stated that the
    reason for his statement was to explain the two conflicting rights forms he had read Mr. Boise.
    Page 5 REPLY TO GOVERNMENTS RESPONSE TO MOTION TO SUPPRESS STATEMENTS
    Second, in Duckworth the Court approved the if and when you go to court language when
    it immediately followed a full and complete reading of defendants Miranda rights. Id. at 198.
    Subsequent to Mr. Boises Miranda rights, he was read the tribal rights, which state you have the
    right at your own expense, to have the presence of an attorney. He was told by TFA Samuels that
    you have the right at your own expense to have the presence of an attorney. You understand that?
    And that is the difference between the two forms. Unlike Duckworth, by the time TFA Samuels
    began to erroneously explain the difference between the two rights forms, Mr. Boise had already
    been told a couple of times that he needed to hire his own attorney.
    This Court should find that the conflation of these warnings without an adequate explanation
    was confusing. Mr. Boise was entirely unclear what the nature of his rights were under the Fifth
    Amendment. Specifically, Mr. Boise could not reasonably ascertain from the warnings provided to
    him by TFA Samuels whether he could or could not retain the services of an attorney for free. San
    Juan-Cruz, 314 F.3d at 333.
    CONCLUSION
    For the foregoing reasons and arguments made by Mr. Boise in his memorandum in support
    of his motion to suppress statements, Mr. Boise respectfully requests that this Court suppress all
    statements made by him upon arrest on September 17, 2007, and at the Warm Springs Police
    Department on September 18, 2007, and any evidence obtained as a result of those statements.
    Respectfully submitted on September 26, 2008.
    /s/ Harold P. DuCloux, III
    Harold P. DuCloux, III
    Assistant Federal Public Defender

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