U.S. v. Younger

• Decision Date: 01 March 2005
• Docket Number: No. 04-10206.,04-10206.
• Citation: 398 F.3d 1179
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clydell YOUNGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

398 F.3d 1179

UNITED STATES of America, Plaintiff-Appellee, v. Clydell YOUNGER, Defendant-Appellant.

No. 04-10206.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 12, 2005.

Filed March 1, 2005.

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Daniel P. Blank, Office of the Public Defender, San Francisco, CA, for the defendant-appellant.

Kevin V. Ryan, United States Attorney, Hannah Horsley and Susan R. Jerich, Assistant United States Attorneys, San Francisco, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California, Maxine M. Chesney, District Judge, Presiding. D.C. No. CR-03-00045-MMC.

Before: NOONAN, CALLAHAN, Circuit Judges, and JONES, District Judge.^*

ROBERT E. JONES, District Judge.

Clydell Younger appeals his jury conviction for possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Defendant asserts that (1) the district court erred in denying his motion to suppress statements; (2) the district court erred in permitting certain expert opinion testimony; (3) the prosecutors engaged in prejudicial misconduct during closing argument; (4) the Second Amendment bars prosecution for felon in possession; and (5) the evidence failed to satisfy the "interstate commerce" element of the felon-in-possession charge.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I. Facts

On November 18, 2002, police officers Hall and Benzinger, assisted by other officers, executed a warrant to search defendant's person, residence, and vehicle. The warrant was based on information Hall and Benzinger received from a confidential informant that defendant was selling crack cocaine from his residence.

After knocking and announcing their presence, the officers heard loud thumps of someone running inside the residence, and forced entry. After entry, Hall found defendant in an upstairs bedroom. Defendant was standing next to an open window with his right arm outside the window. He was wearing a light blue sweat suit and breathing heavily. Hall arrested defendant and placed him in handcuffs without incident. Hall then heard another officer call for his attention. The officer told Hall that "some guy wearing blue threw a backpack on the roof." Hall brought defendant to the window and the officer stated "[y]eah, that's the guy."

Officers retrieved the backpack and inside it found narcotics and firearms. Specifically, in the large compartment of the pack officers found a loaded, short-barrel shotgun with two loose rounds, a loaded revolver in a black holster, a replica machine gun with an unattached magazine, a black ski mask, a large folding knife, and a black glove. In the smaller compartment, officers found three plastic bags containing 81 smaller bags of crack cocaine, 17 smaller bags of powder cocaine, and plastic sandwich bags. Laboratory analysis later revealed the total amounts of crack and powder cocaine to be 12.5 grams and 4.7 grams, respectively. Officers seized $162 in small denominations from defendant, and also found a large box of sandwich bags in defendant's kitchen with smaller bags inside the box.

After identification of defendant as the one who had thrown the backpack onto the roof, Hall brought him downstairs to the living room. There, Hall advised defendant of each of his Miranda¹ rights, including his rights to remain silent and to have an attorney present before and during questioning, and asked him if he understood. After every question, defendant affirmatively acknowledged that he understood each right.

Meanwhile, Benzinger had detained defendant's girlfriend upstairs.² Before Hall had an opportunity to question defendant, defendant spontaneously stated "that stuff is mine. She [the girlfriend] don't know about nothing." Hall then asked defendant if the backpack belonged to him. Defendant replied "everything in the backpack is mine and [she] don't know nothing about none of that stuff." Benzinger entered the living room with the backpack and asked defendant if the girlfriend knew anything about the guns in the bag. Defendant responded "everything in the bag is mine."

Officers then transported defendant to the police station, where he was interviewed. The interview was tape-recorded and lasted approximately 25 minutes. At the beginning of the interview the following colloquy took place:

Hall: Don't trip, you're all good.

Benzinger: Okay, this is Officer Benzinger, 356.

Hall: Officer Hall, 567, the time right now is about, 11:15, and what's the date?

Benzinger: The 18th of November.

Younger: But, excuse me, if I'm right, I can have a lawyer present ...

Hall: (interrupting) If you want one.

Benzinger: (interrupting) Yeah.

Younger: ... through all this, right?

Hall: (interrupting) Yeah. Why don't we

read your Miranda rights, yeah.

Younger: Okay, yeah.

Benzinger then read defendant his Miranda rights, asking after each statement whether defendant understood. Benzinger did not interpret defendant's statement as a request for counsel; rather, he considered it "simply him stating one of his rights, and in fact, he was correct in that, and we told him that."³

In the interview that immediately followed, defendant made various statements, some that were inculpatory and some that showed that he understood his rights, including the right to have counsel present. For example, in response to a question from Hall concerning the backpack, defendant stated:

The bag? I don't know about the bag. We'll talk about that in front of a lawyer or something, I don't want to say anything that will incriminate myself in court, you know what I'm saying?

While discussing the weapons found in the backpack, defendant stated: "You know, I don't want to say too much ...," to which Hall responded "[t]hat's cool, you know, you can set your own limits and that's totally fine with us." At another point in the interview, defendant stated:

Yeah, that's why when I walk, you know, pretty much, I'm here, we caught, you know, I know the officer's word is going to be against mine, so we might as well talk about it and get it out right here.

Later, defendant acknowledged

[y]eah, they seen me, they seen me throw it, I might as well get it out there, man, I ain't trying, what I'm take this to trial? You know what I'm saying? ... I'm looking for a deal or something, I already know I'm looking at a lot of time.

Defendant was transferred to federal custody on February 3, 2003. On February 14, 2003, he was arraigned in federal district court on a three-count indictment charging him with possessing with intent to distribute five or more grams of cocaine base, felon-firearm possession, and possessing firearms in furtherance of a drug trafficking crime.

In pretrial proceedings, defendant moved to suppress the inculpatory statements he made while in custody at the residence and the police station. The court denied the motion. Defendant moved to dismiss the firearms-related charges as unconstitutional under the Second Amendment. The court denied the motion. Citing Federal Rule of Evidence ("FRE") 704(b),⁴ defendant moved to preclude the government's expert witness, a police lieutenant, from offering any opinion regarding defendant's intent to distribute the narcotics he possessed. The court granted the motion in part and denied it in part, ruling that if the expert conformed his opinions to the requirements of FRE 704(b), his testimony would be admissible.

On October 7, 2003, the jury found defendant guilty on counts one and two of the indictment, and not guilty on count three. On March 31, 2004, the district court sentenced defendant to 120 months imprisonment, eight years supervised release, and a $200 special assessment. Defendant timely appeals.

II. Denial of Motion to Suppress

We review the voluntariness of a waiver of Miranda rights de novo. United States v. Okafor, 285 F.3d 842, 846-47 (9th Cir.2002). Whether the decision was knowing and intelligent is reviewed for clear error. United States v. Garibay, 143 F.3d 534, 536 (9th Cir.1998). We review the district court's factual findings concerning the words a defendant used to invoke the right to counsel for clear error and whether the words actually invoked the right to counsel de novo. United States v. Ogbuehi, 18 F.3d 807, 812 (9th Cir.1994).

a. Miranda Waiver

Defendant argues that custodial statements he made at his residence and at the police station were taken in violation of his Miranda rights. His argument is two-fold. First, he argues that the police officers failed to obtain a valid waiver of his rights both at the house and the police station. Second, he contends that the police violated his rights by continuing to question him at the police station after he invoked counsel.

A defendant's waiver of Miranda rights must be "voluntary, knowing, and intelligent." Garibay, 143 F.3d at 536 (internal quotations and citations omitted). A valid waiver depends on the totality of the circumstances, where under the circumstances, defendant "was aware of `the nature of the right being abandoned and the consequences of the decision to abandon it.'" Id. (citation omitted).

A Miranda waiver need not be express. In soliciting a waiver of Miranda rights, police officers need not use a waiver form nor ask explicitly whether a defendant intends to waive his or her rights. United States v. Cazares, 121 F.3d 1241, 1244 (9th Cir.1997).⁵ There is, however, a presumption against waiver. Garibay, 143 F.3d at 536. The burden is on the government to prove voluntariness, but "`voluntariness of a waiver' has always depended on the absence of police over-reaching, not on `free choice' in any broader sense of the word.'" Cazares, 121 F.3d at 1244 (quoting Colorado v. Connelly, 479 U.S. 157, 170, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986)).

The district...