U.S. v. Clark

• Decision Date: 21 October 2010
• Docket Number: Criminal No. 10–82–P–S.
• Citation: 746 F.Supp.2d 176
• Parties: UNITED STATES of America, Plaintiffv.Roy CLARK, Defendant.
• Court: U.S. District Court — District of Maine

746 F.Supp.2d 176

UNITED STATES of America, Plaintiff

v.Roy CLARK, Defendant.

Criminal No. 10–82–P–S.

United States District Court, D. Maine.

Oct. 21, 2010.

Timothy Zerillo, Zerillo Law, LLC, Portland, ME, for Defendant.Darcie N. McElwee, U.S. Attorney's Office, Portland, ME, for Plaintiff.

ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

GEORGE Z. SINGAL, District Judge.

The United States Magistrate Judge filed with the Court on September 14, 2010, his Recommended Decision (Docket No. 61). Defendant filed his Objection to the Recommended Decision (Docket No. 63) on October 1, 2010. Plaintiff filed its Response to Defendant's Objection to the Recommended Decision (Docket No. 64) on October 15, 2010.

I have reviewed and considered the Magistrate Judge's Recommended Decision, together with the entire record, including listening to the audio recording of the hearing; I have made a de novo determination of all matters adjudicated by the Magistrate Judge's Recommended Decision; and I concur with the recommendations of the United States Magistrate Judge for the reasons set forth in his Recommended Decision, and determine that no further proceeding is necessary.

1. It is therefore ORDERED that the Recommended Decision of the Magistrate Judge is hereby AFFIRMED.

2. It is hereby ORDERED that Defendant's Motion to Suppress and Dismiss (Docket No. 40) is DENIED.

RECOMMENDED DECISION ON MOTION TO SUPPRESS

JOHN H. RICH III, United States Magistrate Judge.

Roy Clark, charged with possessing nine firearms in violation of 18 U.S.C. §§ 922(g)(8) and 924(a)(2), see Indictment (Docket No. 31), seeks to suppress statements that he characterizes as involuntary and/or given in asserted violation of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), see Motion To Suppress and Dismiss (“Motion To Suppress”) (Docket No. 40) at 1.¹ He further seeks to suppress, as fruit of the poisonous tree, additional evidence gathered as a result of these asserted violations. See id.

An evidentiary hearing was held before me on August 17, 2010, at which the defendant appeared with counsel. The government tendered two witness and offered two exhibits, which were admitted without objection. The defendant tendered no witnesses and offered no exhibits. After both sides rested, counsel for each argued orally. I now recommend that the following findings of fact be adopted and that the Motion To Suppress be denied.

I. Proposed Findings of Fact

At approximately 2:45 a.m. on February 15, 2010, the South Portland Police Department (“SPPD”) received a report of a domestic dispute between Roy Clark, the defendant, and his wife at their residence on Washington Avenue. When police reported to the residence, they were unable to locate the defendant, but they observed several guns. They did not then seize them, learning only later that morning that the defendant was prohibited, by virtue of the entry of a protection from abuse order against him, from possessing them.

At approximately 7:00 a.m., the SPPD mobilized several officers starting their shifts to pursue the case by locating the defendant, arresting him, and seizing guns believed to belong to him. Among these were Detective Sergeant Kevin Webster, a 23–year veteran of the SPPD, and police officer Kevin Battle, a 25–year veteran of the SPPD. At 9:30 a.m., several officers returned to the defendant's residence. They did not find him there, but they located and seized eight to 11 long firearms. One of the defendant's relatives informed them that there were other firearms, all handguns. However, officers were unable to locate those guns.

At about 11:20 a.m., Battle stopped the defendant's vehicle, arrested him, and transported him to the SPPD station. Battle and another officer, Sergeant Tom Simons, brought the defendant to an interview room, where they removed his handcuffs. The room, which was approximately 10 feet by 12 feet, contained bare walls, chairs, a round table in the center, and a videocamera that recorded the ensuing interview. That tape was introduced into evidence, without objection, as Gov't Exh. 1 (“Interview Room DVD”).

At 11:23 a.m., Webster, who was in charge of the defendant's case insofar as it concerned the prohibited possession of firearms, commenced interviewing him, with the primary goal of locating the missing handguns. Battle and/or Simons were present in the interview room with the defendant for periods of time, including after Webster departed at 12:06 p.m. At the outset, Webster read the defendant each of his Miranda rights. The defendant told Webster that he understood each. He did not state that he wished to invoke any of those rights, and Webster began asking questions.

Webster soon moved to the subject of the whereabouts of the handguns. The defendant initially denied that there were any guns in the house, that he personally possessed any guns, or that he had removed any guns. At approximately 11:33 a.m., after acknowledging, in response to a question, that he knew that he was not allowed to have any guns, but again denying that he had any, he stated: “I guess this is where I have to stop and ask for a lawyer, I guess.” Interview Room DVD at 11:32:52. At the same time as the defendant uttered the words “and ask for a lawyer, I guess,” Webster spoke over him in a louder tone of voice, stating: “Well, here's where I will just be honest with you and tell you what we're going to do. I was just looking for some honesty from you, and I was not going to put the screws to you.” Id. at 11:32:59.

Webster heard the defendant say, “I guess this is where I have to stop....” But he did not hear the rest of that sentence. Nor did he hear it upon initially reviewing the videotape. Only after the defendant alleged that he had asked for a lawyer, and Webster viewed that portion of the tape several times with the Assistant United States Attorney, did he hear the remaining words. He now acknowledges that the defendant stated: “I guess this is where I have to stop and ask for a lawyer, I guess.” ² While Webster heard the defendant say, “I guess this is where I have to stop,” he did not understand that phrase to be an invocation of the defendant's right to remain silent. The following exchange immediately ensued:

Webster: What I will do is, the guns that we did get, we will run a DNA check on them. My guess is your DNA's going to be on them. You're going to be charged, which wasn't my goal here, alright? My 23 years I've been doing this, and I don't like being dicked around. A little honesty goes a long way, OK?

* * *

Webster: That's all I have is my word, and if I tell you I'm going to do something, I'm going to do it. Right now, here's the way I look at it. You have two options.... Do you necessarily want to be charged with a gun offense?

Defendant: No, of course not.

Webster: Then if you don't, this is what I will offer you. Do you see that right there (pointing to the videocamera)?

Defendant: Mm-hmm.

Webster: We're being recorded. So it's not like I'm going to trick-fuck you or lie to you. If you tell me where the guns are, I will not charge you with being a prohibited person. We will take the guns and hold them here, OK? We're not stealing them. We're not going to keep them. We will keep them here until this protection order stuff is done. When you have the right to have the guns back, we will give them back to you.

Id. at 11:33:06.

Webster believed that he possessed the authority and discretion to refrain from charging the defendant with unlawful possession of the guns. At hearing, he termed the offer “unorthodox,” but testified that he made it because he would “rather have the guns off the streets than seek prosecution.” He explained that he believed that the defendant was the only person who knew where the guns were, and that failing to locate them posed a public safety threat.

At 11:37 a.m., Webster reassured the defendant: “I have no reason to lie to you. Like I said, 23 years, that's all I have is my reputation.” Id. at 11:37:25. The defendant responded: “That's fair enough. The rest of them [the guns] are up in the attic of that house.” Id. at 11:37:40. Webster left the room to begin making arrangements to search for the guns. He reentered with Battle, turned to the defendant and stated: “This is what we agreed to, correct?” Id. at 11:42:10. He then told Battle, in the defendant's presence: “The guns, the remaining guns, are in the attic, OK, but we're not going to charge him with that. For now, we're just going to take the guns ... and until he gets that paperwork squared away, the protection order....” Id. at 11:42:15. Noting that officers had already been to the residence, seized rifles, and not found handguns, Battle warned: “Don't throw out this [inaudible] deal, don't be holding back.” Id. at 11:43:05.

For nearly 20 more minutes, Battle and Webster continued to press the defendant as to the veracity of his report. The defendant continued to insist that he had left the guns in the attic, offering to go look with the police and suggesting that, if they were not there, someone else must have moved or taken them.

When Battle questioned the defendant as to whether he had taken or handled the handguns that morning, the defendant stated: “He [Webster] gave me a deal, I mean, you guys are going to hang onto them[.]” Id. at 11:46:17. Battle responded: “I don't know if he [Webster] told you ... this place is recorded. This ain't television, guy, we're not going to sit here and pull some BS and then all of a sudden afterwards [...], because we've got to explain everything.” Id. at 11:46:24. A short time later, Battle told the defendant: “You do realize that he [Webster] can't tell you one thing and do another. I can't tell you one thing and do another. That throws the whole case out and ruins my credibility.” Id. at 11:50:42.

Before noon, Webster left the interview room for a few minutes. When he returned at...