United States v. McCluskey

• Decision Date: 27 August 2012
• Docket Number: CR. No. 10–2734 JCH.
• Citation: 893 F.Supp.2d 1117
• Parties: UNITED STATES of America, Plaintiff, v. John Charles McCLUSKEY, Defendant.
• Court: U.S. District Court — District of New Mexico

893 F.Supp.2d 1117

UNITED STATES of America, Plaintiff,

v.John Charles McCLUSKEY, Defendant.

CR. No. 10–2734 JCH.

United States District Court,

D. New Mexico.

Aug. 27, 2012.

Gregory James Fouratt, Linda Mott, U.S. Attorney's Office, District of New Mexico, Albuquerque, NM, Michael S. Warbel, U.S. Department of Justice, Washington, DC, for Plaintiff.

Gary Mitchell, Mitchell Law Office, Ruidoso, NM, Michael N. Burt, Law Office of Michael Burt, San Francisco, CA, Theresa M. Duncan, Duncan Earnest, LLC, Albuquerque, NM, for Defendant.

AMENDED MEMORANDUM OPINION AND ORDER¹

JUDITH C. HERRERA, District Judge.

This case is before the Court on Defendant John Charles McCluskey's Motion to Suppress Statements [Doc. No. 293], filed January 30, 2012. In the motion, Defendant seeks to suppress statements that he made to FBI Agent James Rominger on August 20, 2010 and statements that he made to FBI Agent James McCaskill and New Mexico State Police Agent Patrick Bucksath on August 24, 2010. On May 29 through May 31, 2012, the Court held an evidentiary hearing on the motion (as well as on another motion to suppress filed by the Defendant as Doc. No. 295), for which Defendant was present. After considering the evidence and reviewing the parties briefs, the relevant legal precedents, and counsel's written closing arguments, the Court concludes that the motion should be granted in part and denied in part. Specifically, in accordance with Miranda v. Arizona and Edwards v. Arizona, the Court concludes that all of McCluskey's statements to law enforcement on August 20 and August 24, 2010 should be suppressed on the grounds that law enforcement officers improperly interrogated him after he invoked his right to counsel. McCluskey's motion to suppress his statements on the grounds of (1) violation of his right to silence; (2) coercion; and (3) violation of his Sixth Amendment right to counsel will be denied.

I. LEGAL STANDARD

On a motion to suppress a defendant's statement allegedly obtained in violation of defendant's Miranda rights, the Government bears the burden of proving by preponderance of evidence that the Defendant's rights were not violated. See United States v. Gell–Iren, 146 F.3d 827, 830 (10th Cir.1998). For example, “[w]henever the State bears the burden of proof in a motion to suppress a statement that the defendant claims was obtained in violation of our Miranda doctrine, the State need prove waiver only by a preponderance of the evidence.” Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

II. FINDINGS OF FACT

For the purposes of the motion that is the subject of this Memorandum Opinion and Order, the Court finds the facts as follows:

A. August 20, 2010 Interviews

McCluskey was arrested on August 19, 2010 near Greer, Arizona. On August 20, Agent James Rominger of the FBI interviewed McCluskey in a small interrogation room at the county jail in Apache County, Arizona. As he was being led into an interrogation room, he told authorities several times that he did not want to talk to anyone without a lawyer present. Hearing Transcript, May 29, 2012, at pp. 138–139. In fact, his first statement on the recording of his discussion with Rominger was “I don't want to talk to nobody without a lawyer.” Ex. 1A–R at 2. The two guards at the jail who accompanied McCluskey, along with Rominger, all heard McCluskey make this statement. Tr. May 29, 2012 at 56, 139, and 166. Rominger responded by introducing himself to McCluskey and explaining his presence at the jail, as well as encouraging McCluskey to make a statement that would benefit Welch:

Why don't you come in here just for a second. Have a seat. We'll make this short and sweet it sounds like. Thanks. You want to take a seat? I'll jut talk to you for a second. My name is Jay Rominger. I'm with the FBI out of Pine Top.... So I've been an agent for 24 years.... You know, I've done a lot of good for guys like yourself and others. I'm happy to help you out to testify on your behalf of what you tell me because I understand that your friend, your partner who was in on this, that maybe she wasn't involved in a lot of this stuff. You know, I think this is an opportunity for you to, you know, be a stand up guy for her benefit.

Ex. 1A–R at 2 (emphasis added). Rominger did not read McCluskey his Miranda rights at that time. Instead, in the foregoing statement Rominger offered McCluskey the opportunity to clear his codefendant, Casslyn Welch, of any involvement in the murders under investigation by “being a stand up guy for her benefit.” Shortly thereafter, McCluskey made some obliquely self-incriminating remarks, and Agent Rominger reiterated to McCluskey that now was his opportunity to explain Welch's role in the murders.

Rominger: But if—if you and I can explain what her role was in New Mexico and that, that's going to make a huge difference.

McCluskey: Her role was that she was irrelevant in New Mexico. That was all me. Ex. 1A–R at 5. At this point, Rominger told McCluskey to let Rominger read him his rights, “and then if you're willing to talk to me, let's talk, you know.” Id. McCluskey responded, “Yeah, I'm not too good right now. I'm kind—I'm kind of, maybe on another day.” But right now I'm—I'm telling you right now, I'm not too good. Rominger responded, “I understand.” McCluskey elaborated, “In the head, okay?” Id. Then, McCluskey made further self-incriminating remarks. Rominger again offered to read McCluskey his rights and encouraged McCluskey to explain Welch's role in the murders. (“Let me read you your rights so you understand your rights.... And then you—you can only answer the questions you want to answer. You know, just do that, and we'll—we'll just talk about her and her role. And that way at least you get that documented, right?”) Id. at 6–7. McCluskey agreed, and Rominger explained his Miranda rights. Id. at 7. After another short exchange, McCluskey once again made an unambiguous assertion of his Fifth Amendment right to counsel, stating, “I don't want to talk to you without my lawyer.” Id. at 8. Despite this second invocation of the right to counsel, Rominger did not cease his interview of McCluskey. Instead he responded by pursuing the subject of McCluskey making a statementexculpating Welch by saying, “Okay. Even now? I mean, even with Casslyn?” In response, McCluskey stated that “If she (Welch) needs my help, she knows how to get it.... And I'll do anything for her.” Id. at 8. At this point, McCluskey made an unprompted proposition:

McCluskey: So if you (Rominger) want to go talk to her and say, hey, your cousin says he'll do anything for you. If you tell him to do it, I'll do that.

Rominger: And then you'll come back in and talk to me?

McCluskey: Yeah, but she has got to tell me to talk to you.

Id. at 9. After Rominger indicated his willingness to arrange a meeting between McCluskey and Welch, McCluskey stated, “I will come in here and tell you everything about New Mexico word for word how it went down.” Id. at 10. This initial encounter between McCluskey and Rominger lasted less than eight minutes. At that point, jailers escorted McCluskey back to his cell. A few minutes later, they brought Welch to the interview room to meet with Rominger.

After Welch sat down, Rominger introduced himself to her, and then he said,

John says that he wants to help you out because they're talking death penalty, they're talking all kinds of horrible things for everybody. I said, John, I can't believe Casslyn is involved in that part of this. And he said, she's not.... And John said he will tell everything, do everything for your benefit. He said you had nothing to do with it. But I said I need specifics. I need details .... but he said I would like Casslyn to give me the okay to do that and I'm going to do it. Because he said that's what he wants to do. So that's one thing that I'd like to do with you if you're willing. And we'll just have you tell John just please do that. You know, come in and he'll explain everything.

Ex. 1B–R at 2–3. At that point, Welch agreed to talk to McCluskey. Id. at 3. After further discussion by Rominger in which he explained to Welch why it could benefit her to talk to him, Welch asked him to have her taken off suicide watch so that her clothes and blankets would be returned to her. Id. at 6. Rominger agreed to look into that for Welch, though he made no express promise that he could achieve that for her. Id. at 7. After additional exchanges, Rominger told Welch, “They'll run you by and just say, please talk to the man. And then when—when I bring you back in, I'll fill you in on what he said.” Id. at 12. Welch again consented to talk to McCluskey. Id. This encounter between Rominger and Welch lasted approximately ten and a half minutes.

Rominger arranged a meeting between McCluskey and Welch. He told one of the jailers, Jacob Strang, to instruct Welch tell McCluskey that it was okay to talk to Rominger. Tr. May 29, 2012 at pp. 142–43. During their brief meeting, Welch directed McCluskey to “tell them what we did.” Id. at 143. McCluskey asked Welch if she was sure, and she said, “Yeah, go ahead.” Id. After this brief exchange, the guards returned Welch to her holding cell and escorted McCluskey back to the interview room. McCluskey did not appear surprised at their appearance, nor did he resist returning to the interview room. Id. at 144. However, there is no evidence that McCluskey asked to return to the interview room or to speak with Rominger.

Then, guards led McCluskey back into the interrogation room, where he had a second encounter with Rominger that began approximately eight minutes after Rominger's meeting with Welch had ended. Exs. 1 and 1C–R. Rominger informed McCluskey that he had arranged for Welch to be taken off suicide watch so that she could have a blanket, and that he had done what McCluskey had asked. Ex. 1 C–R at 2. Then the following exchange took place:

Q. So what do you think? Are you...