United States v. Williams

• Decision Date: 05 December 2016
• Docket Number: No. 15-10475,15-10475
• Citation: 842 F.3d 1143
• Parties: United States of America, Plaintiff-Appellant, v. Alfonzo Williams, AKA Fonz, aka Relly; Antonio Gilton, AKA TG, AKA Tone; Barry Gilton, AKA Prell; Lupe Mercado; Adrian Gordon, AKA Tit; Reginald Elmore, AKA Fat Reg; Charles Heard, AKA Cheese; Esau Ferdinand, AKA Sauce; Paul Robeson, AKA P World ; Monzell Harding, Jr.; Jaquain Young, AKA Loc, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

842 F.3d 1143

United States of America, Plaintiff-Appellant,

v.Alfonzo Williams, AKA Fonz, aka Relly; Antonio Gilton, AKA TG, AKA Tone; Barry Gilton, AKA Prell; Lupe Mercado; Adrian Gordon, AKA Tit; Reginald Elmore, AKA Fat Reg; Charles Heard, AKA Cheese; Esau Ferdinand, AKA Sauce; Paul Robeson, AKA P World ; Monzell Harding, Jr.; Jaquain Young, AKA Loc, Defendants-Appellees.

No. 15-10475

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 16, 2016, San Francisco, California

Filed December 5, 2016

Ann M. Voigts (argued), Assistant United States Attorney; Barbara J. Valliere, Chief, Appellate Division; Brian J. Stretch, United States Attorney; United States Attorney's Office, San Francisco, California; for Plaintiff-Appellant.

Mark Stuart Goldrosen (argued), San Francisco, California, for Defendants-Appellees.

Before: Andrew J. Kleinfeld, Johnnie B. Rawlinson, and Andrew D. Hurwitz, Circuit Judges.

Dissent by Judge Kleinfeld

OPINION

HURWITZ, Circuit Judge:

Antonio Gilton was arrested for murder and promptly invoked his right to an attorney. Hours later, after Gilton was taken from police headquarters to a jail, a sheriff's deputy asked him whether he was a member of a criminal gang. The government seeks to introduce Gilton's responses to that questioning in its case-in-chief to establish membership in an "enterprise," an element of the RICO offense for which he is charged. 18 U.S.C. § 1962(c), (d). The district court suppressed Gilton's statements under the rule of Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We affirm.

I.

On the afternoon of July 4, 2012, San Francisco police officers arrested Gilton for the murder of Calvin Sneed. Officers first took Gilton to a local police station; he was transported that evening to an interrogation room at the San Francisco Hall of Justice. At the Hall of Justice, a homicide inspector advised Gilton of his Miranda rights and attempted to interrogate him; Gilton unequivocally invoked his right to an attorney.

Gilton then was taken to county jail and placed in a holding cell. Around 2:30 a.m. on July 5, a deputy sheriff removed Gilton from the cell and asked whether he was a gang member. The deputy did not advise Gilton that he was free to return to his cell without answering or to have a lawyer present; nor was Gilton informed that his answers could be used to incriminate him. In response to the deputy's inquiry whether he was affiliated with the Fillmore/Central Divisadero Playas ("CDP") gang, Gilton said, "Yeah, I hang out there, put me where I'm from."

Gilton's answers were entered by the deputy on two forms used by jail officials in determining where to house inmates—an "Information Report," which designates any gang affiliation, and a "Class Interview," which reflects whether the prisoner presents any "High Risks," including being a gang member. The deputy designated Gilton a gang member on the Information Report, and checked off "Gang Member" on a list of "High Risks" on the Class Interview. Absent a direct admission of gang affiliation, a prisoner can still be designated a gang member on the forms if two other criteria are met—including a gang-related tattoo, a prior gang-related arrest, frequent association with validated gang members, or police intelligence that he is a gang member. In classifying Gilton, the deputy relied not only on his responses to questioning, but also on his arrest record and police intelligence.

Gilton was initially charged in state court with murder, conspiracy to commit murder, discharge of a firearm at an occupied motor vehicle, and possession of a firearm by a felon. In November 2013, he was indicted by a federal grand jury and the state charges were dismissed. A superseding indictment charged Gilton with conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d), murder in aid of racketeering for the murder of Calvin Sneed, 18 U.S.C. § 1959(a)(1), and related firearms offenses. An element of the RICO count is Gilton's membership in a RICO enterprise—here, the CDP gang. See 18 U.S.C. § 1962(c), (d).

Gilton moved to suppress the statements made to the deputy about gang affiliation. The district court granted the motion, holding that because "asking about Gilton's gang affiliation was reasonably likely to elicit incriminating information," the so-called "booking exception" to Miranda did not apply. This timely appeal followed.¹ See 18 U.S.C. § 3731 (allowing appeal of order granting motion to suppress).

II.

Under the iconic rule of Miranda v. Arizona , "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). "Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Id. Once the defendant "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." Id. at 444–45, 86 S.Ct. 1602. "[U]nless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him." Id. at 479, 86 S.Ct. 1602.

"[T]he term ‘interrogation’ under Miranda refers ... to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis , 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The so-called "booking questions exception" exempts "from Miranda 's coverage questions to secure the biographical data necessary to complete booking or pretrial services." Pennsylvania v. Muniz , 496 U.S. 582, 601, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (plurality opinion) (quotation marks omitted) (concluding that the answers to questions regarding the defendant's name, address, height, weight, eye color, date of birth, and current age were admissible in the absence of Miranda warnings); see id. at 608, 110 S.Ct. 2638 (assuming the existence of a "routine booking question" exception but finding it "unnecessary to determine whether the questions fall within" it) (Rehnquist, J., concurring). Because such questions "rarely elicit an incriminating response, routine gathering of biographical data does not constitute interrogation sufficient to trigger constitutional protections." United States v. Gonzalez – Sandoval , 894 F.2d 1043, 1046 (9th Cir. 1990).

The booking questions exception, however, is subject to an important qualification: "When a police officer has reason to know that a suspect's answer may incriminate him, however, even routine questioning may amount to interrogation." United States v. Henley , 984 F.2d 1040, 1042 (9th Cir. 1993). Thus, we have consistently emphasized, consistent with Innis , that "the ultimate test for whether questioning constitutes interrogation is whether, in light of all the circumstances, the police should have known that a question was reasonably likely to elicit an incriminating response." United States v. Booth , 669 F.2d 1231, 1238 (9th Cir. 1981) ; see United States v. Washington , 462 F.3d 1124, 1132–33 (9th Cir. 2006) (applying Booth ). Thus, for example, when there is reason to suspect that a defendant is in the country illegally, questions regarding citizenship do not fall under the booking exception—even if they are biographical—because a response is reasonably likely to be incriminating. See Gonzalez – Sandoval , 894 F.2d at 1047 ; United States v. Mata – Abundiz , 717 F.2d 1277, 1280 (9th Cir. 1983) ; see also Henley , 984 F.2d at 1042 ("[W]hile there is usually nothing objectionable about asking a detainee his place of birth, the same question assumes a completely different character when an INS agent asks it of a person he suspects is an illegal alien.").

The government insists that the deputy who asked about Gilton's gang affiliation could not have known that a response was reasonably likely to be incriminating, because no gang-related charges were then pending. But, "[t]he test is an objective one; the subjective intent of the police is relevant, but not conclusive." Washington , 462 F.3d at 1132. The absence of specific gang-related charges does not mean that questions regarding the gang affiliation of a defendant arrested for a violent crime are not likely to prove incriminating. As a unanimous California Supreme Court recently noted, gang membership exposes a defendant to "a comprehensive scheme of penal statutes aimed at eradicating criminal activity by street gangs." People v. Elizalde , 61 Cal.4th 523, 538, 189 Cal.Rptr.3d 518, 351 P.3d 1010 (2015).

The California Street Terrorism Enforcement and Prevention Act created a substantive offense, section 186.22(a), which punishes as a misdemeanor or felony "any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang." Subdivision (b)(1) of that section imposes greater punishment when a felony is committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." The additional punishment can be substantial.

Section 12022.53 provides enhancements for personal use or discharge of a firearm. Its provisions apply to any principal when the offense is committed to benefit a criminal street gang.

Finally,

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