US v. Diggs

• Decision Date: 10 July 1992
• Docket Number: Crim. A. No. 91-10126-01.
• Citation: 801 F. Supp. 441
• Parties: UNITED STATES of America, Plaintiff, v. Donald DIGGS, Defendant.
• Court: U.S. District Court — District of Kansas

801 F. Supp. 441

UNITED STATES of America, Plaintiff, v. Donald DIGGS, Defendant.

Crim. A. No. 91-10126-01.

United States District Court, D. Kansas.

July 10, 1992.

COPYRIGHT MATERIAL OMITTED

D. Blair Watson, Asst. U.S. Atty., Wichita, Kan., for plaintiff.

Stephen E. Robison, Wichita, Kan., for defendant.

MEMORANDUM AND ORDER

BELOT, District Judge.

This matter is before the court on the pretrial motions of defendant. Three motions are pending: (1) motion to suppress statement; (2) motion to sever counts; and (3) motion for discovery materials. The court held hearings on the motions on June 5 and 22, 1992. The court has considered the evidence and the parties' briefs and is prepared to rule.

Defendant is charged in a two count indictment. Count I charges possession of cocaine with intent to sell arising from an arrest on November 25, 1991. Count II charges the same, but arises from an earlier arrest on June 18, 1991. The incidents are unrelated.

Count II of the indictment relates to an undercover operation that led to defendant's arrest in the early morning hours of June 18, 1991. Defendant came to be associated with a residence at 2320 White Oak in Wichita, at which address a package containing cocaine was to be delivered. The police observed defendant emerging from this residence with the package and then getting into a car. The police followed the car, pulled it over, and arrested defendant and a companion. Defendant was interviewed by postal inspector Fluekiger, but no charges were brought at that time.

Count I of the indictment relates to defendant's subsequent arrest on November 25, 1991. The reports furnished to defendant's counsel indicate that on that date, an informant attempted to sell a quantity of cocaine to defendant. When defendant replied that he did not have money to buy drugs, the informant gave the cocaine to defendant without payment. Defendant was arrested within minutes after receiving possession of the cocaine.

I. Suppression of Statement (Doc. 27)

Defendant moves to suppress incriminating statements that he made after his November arrest on the ground that he was intoxicated on cocaine at the time he gave it. Because he was under the influence of drugs at the time he waived his Miranda rights and made incriminating statements to the police, defendant contends that his confession was involuntary and thus subject to suppression.

The government argues that defendant's statements cannot be deemed involuntary, because defendant has made no showing relating his alleged cocaine intoxication to police action.

In order to establish that a confession or a waiver of Miranda rights was "involuntary" in the constitutional sense, there must also be a showing of "coercive police activity." Colorado v. Connelly, 479 U.S. 157, 163-67, 107 S.Ct. 515, 519-22, 93 L.Ed.2d 473 (1986). Although a defendant may have been legally insane at the time he gave the confession, "absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law." Id. at 164, 107 S.Ct. at 520. Thus, in determining whether a confession was "voluntary" for purposes of due process, "the relevant test no longer focuses on the defendant's free will, as it has in the past," but instead focuses "on the presence or absence of police coercion." United States v. Raymer, 876 F.2d 383, 386 (5th Cir.), cert. denied, 493 U.S. 870, 110 S.Ct. 198, 107 L.Ed.2d 152 (1989).

Nonetheless, "police exploitation of the mental condition of a suspect, using `subtle forms of psychological persuasion' could render a confession involuntary." Raymer, 876 F.2d at 386-87 (quoting Connelly, 479 U.S. at 164-65, 107 S.Ct. at 520-21). See also McCall v. Dutton, 863 F.2d 454, 459 (6th Cir.1988), cert. denied, 490 U.S. 1020, 109 S.Ct. 1744, 104 L.Ed.2d 181 (1989). Moreover, the fact that a confession may not be constitutionally "involuntary" due to a lack of official coercion does not exclude the possibility that it may nonetheless be unreliable — and thus subject to exclusion under the rules of evidence. Connelly, 479 U.S. at 167, 107 S.Ct. at 521-22 (citing Fed.R.Evid. 601).

The direct evidence of defendant's intoxication or sobriety at the time of his arrest and statement came from defendant, who testified he was high on cocaine, and from an arresting officer, who opined that defendant did not appear to be high on drugs.

In addition, the court has reviewed a videotape of the November 1991 incident leading to defendant's arrest. The police made this tape surreptitiously approximately 45 minutes before defendant was interviewed, and it features a conversation between defendant and a cooperating individual. Defendant speaks with slurred speech and a raspy weak voice, and appears to be either extremely fatigued or intoxicated. However, defendant's comments during his conversation with the cooperating individual show that defendant was oriented as to time, place and, most important, clearly understood the purpose of his visit to the cooperating individual. During the conversation, which lasted several minutes, defendant discussed in detail his desire to acquire not merely a small quantity of cocaine but also a much larger quantity as well as the means through which he planned to distribute the larger quantity.

The court also heard the testimony of defendant's wife and of a local dentist named Murphy. Neither of these witnesses saw defendant on the evening of his arrest but both claimed to have seen defendant high on cocaine. Indeed, a fair summary of these witnesses' testimony is that defendant was high on cocaine much of the time. Dr. Murphy, defendant's friend and client, testified that he had seen defendant actually ingest cocaine on 15-20 occasions in the past year. Both defendant's wife and Dr. Murphy testified that when defendant was high on cocaine he had a short attention span and did not carefully think things through. The testimony of Dr. Murphy to this effect was considerably suspect since Murphy also testified that defendant was handling legal business for him during the same period when he had seen defendant ingest cocaine.

The court finds that defendant had a cocaine dependency in November, 1991 and that defendant's actions in the videotape certainly are suggestive that defendant was under the influence of something, most probably cocaine. The court finds uncredible that Detective Benton, allegedly an expert in identifying persons who are intoxicated, would not at least have suspected that defendant was high on something at the time of his arrest and statement.

These findings, however, do not resolve whether defendant's statements were in fact involuntary. The government has the burden to establish that statements elicited during the custodial interrogation were the result of defendant's knowing and intelligent waiver of his privilege against self-incrimination and the right to retained or appointed counsel. E.g., McNeil v. Wisconsin, ___ U.S. ___, ___, 111 S.Ct. 2204, 2207-08, 115 L.Ed.2d 158, 167 (1991). The court must assess the voluntariness of defendant's statements in light of the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). Some of the factors that bear on that determination are the defendant's age, level of education, the location of the interrogation, the length of the detention, and the use of physical punishment such as deprivation of food or sleep. Id.

The court finds that the government has sustained its burden of proving both the voluntariness and reliability of defendant's statements. Defendant is an attorney who appears to be an intelligent man. Although in the videotape defendant appears to be under the influence of narcotics, he nonetheless demonstrates complete coherence. There is adequate, although not overwhelming, evidence to support the government's position that defendant was similarly lucid when he was interviewed approximately 45 minutes later.

Accordingly, the court will deny the motion to suppress.

II. Severance of Counts

Pursuant to Fed.R.Crim.P. 14, defendant moves for separate trials on the two counts of the indictment.

Defendant contends that there is no nexus between the events of the two counts of his indictment, and that his defense as to each will differ. As to Count II relating to the June arrest, defendant's defense will be that he did not know what was in the package he was carrying. As to Count I relating to the November arrest, the defense will be outrageous government conduct and entrapment. Thus, the defendant argues that there is a danger of unfair prejudice in that the jury will infer defendant's knowledge of the contents of the package in Count II based on his conduct in Count I, and that the jury will infer defendant's predisposition to commit Count I based on his conduct in Count II.

Rule 8(a) of the Federal Rules of Criminal Procedure allows the government to charge two or more offenses in the same indictment "if the offenses charged ... are of the same or similar character...." A defendant seeking a Rule 14 severance of separate counts against him "bears a heavy burden of showing real prejudice to his case." United States v. Burrell, 720 F.2d 1488, 1492 (10th Cir.1983). "Prejudicial joinder occurs under Rule 14 of the Federal Rules of Criminal Procedure only `if an individual's right to a fair trial is either threatened or actually deprived.'" United States v. Sturmoski, 971 F.2d 452, 460 (10th Cir.1992). Rule 8(a) allows the government to charge a defendant with separate counts of possession with intent to distribute controlled substances that involve separate, unrelated instances. See United States v. Cox, 934 F.2d 1114, 1119 (10th Cir.1991); United States v. Kellerman, 432 F.2d 371, 374-75 (10th Cir.1970).

In United States v. Burrell, 720 F.2d 1488, 1492-93 (10th Cir.1983), the court rejected an...