US v. Olsen

• Decision Date: 24 November 1993
• Docket Number: No. 93-CR-52B.,93-CR-52B.
• Parties: UNITED STATES of America, Plaintiff, v. William Arden OLSEN, Defendant.
• Court: U.S. District Court — District of Utah

840 F. Supp. 842

UNITED STATES of America, Plaintiff, v. William Arden OLSEN, Defendant.

No. 93-CR-52B.

United States District Court, D. Utah, C.D.

November 24, 1993.

Mark K. Vincent, Asst. U.S. Atty., Salt Lake City, UT, for plaintiff.

Dierdre A. Gorman, Ogden, UT, for defendant.

ORDER

BENSON, District Judge.

This matter was referred to Magistrate Judge Ronald N. Boyce pursuant to 28 U.S.C. section 636(b)(1)(B). On August 16, 1993, Magistrate Judge Boyce heard oral argument on defendant's motion to suppress. At that hearing, the Magistrate Judge requested supplemental briefing from the defendant and took the matter under advisement. The Magistrate Judge recommends that defendant's motion to suppress be denied. Although defendant filed an Objection to the Report and Recommendation, defendant did not raise any specific objections. In spite of the fact that defendant did not raise any specific objections, the court has made a de novo review of this matter.

After having reviewed the Magistrate Judge's Report and Recommendation, all other related documents of record, and relevant case law, the court finds that the Magistrate Judge was correct in his legal interpretation and factual conclusions. Based on this finding, defendant's objection is overruled, and the Report and Recommendation of the Magistrate Judge is accepted pursuant to 28 U.S.C. section 636(b)(1)(C). Accordingly, IT IS HEREBY ORDERED that the September 16, 1993, Report and Recommendation of the Magistrate Judge is adopted in its entirety. Defendant's motion to suppress is DENIED.

REPORT AND RECOMMENDATION

BOYCE, United States Magistrate Judge.

Defendant, William Arden Olsen, has been indicted on one count charging him with being a convicted felon in possession of a firearm (18 U.S.C. §§ 922(g) and 924(a)(2)). The defendant filed a motion to suppress a statement made by defendant as being obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and the Sixth Amendment to the United States Constitution (File Entry 13).

The case has been referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B). This report and recommendation is submitted pursuant to the reference on defendant's motion to suppress his statement.

The defendant filed a memorandum in support of the motion to suppress (File Entry 26). In the memorandum, the defendant states that defendant was arrested by Moab City, Utah police for public intoxication and possession of a dangerous weapon by a restricted person in violation of Utah law. See Utah Code Ann. § 76-10-503. At the time defendant was on probation after conviction in a Utah court of a third degree felony, burglary (File Entry 26). The defendant was arraigned in state court on an information on January 7, 1993 and after he requested counsel, attorney Sandra Starley was appointed on January 13, 1993 to represent defendant. The case was set for a preliminary hearing and for a probation violation hearing. These were separate proceedings.

Subsequently, on February 18, 1993 the defendant was contacted at his home by his probation officer, Wendell Thayne, and special agent Ray Boland of the Federal Bureau of Alcohol, Tobacco, and Firearms (BATF). The defendant was interrogated by Agent Boland about the incident which gave rise to the pending state and subsequent federal charge. The indictment charges the defendant with the possession of a firearm and a having occurred on January 5, 1993 (File Entry 1). The state arrest was the same event (see "Information" attachment to defendant's memorandum, File Entry 26).

Hearing was held before the magistrate judge on defendant's motion to suppress August 16, 1993 (Tr.). The transcript was received August 25, 1993. The above statements of facts is taken from the defendant's memorandum.

At the hearing it was also represented and accepted that at the time of defendant's interrogation no Miranda warning was given. The defendant was not in jail or police custody but was at his home (Tr. pp. 4-5). The defendant also asserted that the motion to suppress included a voluntariness claim (Tr. p. 5).

Special Agent Robert F. Boland, BATF, testified at the hearing (Tr. p. 6). Boland received information that defendant was involved in an incident when he was in the possession of a firearm (Tr. p. 7). The information came from Wendell Thayne, a probation officer with the Utah Department of Corrections (UDC) (Id.). Boland was advised that defendant was a restricted person, having been convicted of a felony. The defendant was facing a state felony charge of being a restricted person in possession of a firearm. Boland was aware that state court proceedings had commenced (Tr. pp. 7-8).

On February 18, 1993, Boland went to defendant's home in Moab, Utah. Agent Thayne accompanied Boland. They arrived at the home at about 9:00 a.m. They knocked on the door and were greeted by defendant. They asked if they could come in, and defendant invited them inside (Tr. p. 9). Thayne introduce Boland to defendant Olsen. Thayne asked if Olsen would be willing to speak about the incident on January 5, 1993. Olsen said he would be willing to talk. Olsen was extremely cooperative. The conversation took place in the front room of defendant's residence. Thayne was seated on a couch and Boland was leaning against a railing. Olsen was seated opposite Boland on a couch (Tr. p. 10). Boland asked the defendant if he had an attorney and the defendant said no, but was looking for one. Defendant was then questioned about the incident.

Boland was first contacted by Thayne sometime after January 5th and prior to February 18, 1993. Boland did not know Thayne before. Thayne's purpose was to advise Boland of a potential federal firearms violation (Tr. p. 11). Thayne did not give any details because the matter was a Moab City Police Department case (Tr. p. 11). Boland got copies of reports from the Moab City police. Boland contacted the United States Attorney's office and was advised to attempt to interview Olsen (Tr. p. 12). The police reports did not have all the information that was needed.

Boland went to Moab and he and Thayne went to the defendant's home (Tr. p. 13). Thayne went along because he knew where defendant lived and he was willing to be a witness to Boland's interview of the defendant. Boland believed it was a good policy to have a witness present. No tape recording was made of the statement (Tr. p. 14). Boland was aware of the state proceedings (Tr. p. 14). No discussion was ever had with the state prosecutor about converting the prosecution into a federal prosecution. No Miranda warning was given. Boland did ask if defendant had an attorney (Tr. pp. 15-16) and defendant said no he was looking for one. Defendant told Boland that defendant was unhappy with the Moab public defender's office (Tr. p. 16). Boland did not know at what stage of the proceedings the state prosecution was at (Tr. p. 17). Exhibits 1 and 2 were received, which are the docket sheets from the Seventh District court in Moab. Exhibit I indicates the original charge and arraignment was on January 7, 1993. Bond was eventually posted by Olsen. At arraignment on January 13, 1993, attorney Sandra Starley was appointed to represent the defendant. Exhibit 2 reflects that on January 20, 1993 at a court hearing the case was continued. Defendant said he wanted to hire his own counsel. Sandra Starley continued to represent defendant (See affidavit of Starley). On February 24, 1993 defendant pled guilty to Count I of the state charge of possession of a dangerous weapon; (Utah Code Ann. § 76-10-503) Count II was dismissed. Defendant was ordered to undergo a ninety (90) day evaluation on his probation violation. The state probation violation charge was eventually dismissed.

Defendant was arrested on January 5, 1993 and charged in state court. Eventually defendant received court appointed counsel, counsel contacted the defendant by telephone (Tr. p. 23). At one point defendant said he wanted to hire his own attorney and attorney Starley said she would continue looking into the matter until defendant did find other counsel. Defendant did not find other counsel so Starley remained defendant's counsel. From January 20, 1993 to the time Boland came to defendant's house, defendant told Starley he had not found other counsel (Tr. p. 24).

Defendant testified that Agent Thayne and BATF Agent Boland came to defendant's home in February, 1993. Thayne said that the BATF agent wanted to ask a few questions to see if there was any federal offense Olsen had committed (Tr. p. 25). Thayne said it was "no big deal." At the time Olsen was charged in state court with possession of a firearm and an intoxication charge. There was also an outstanding probation action pending. Defendant understood the ultimate determination of his sentence would be made by the judge (Id.). Defendant made the determination to talk because he knew that ninety-nine percent of the time the judge follows the recommendation of the probation officer (Tr. pp. 25-26) and he had been told to be on his best behavior. Thayne had told defendant he would go to prison for sixty to ninety days, apparently for the sentencing evaluation (Tr. pp. 26-27). Defendant thought by cooperating he could improve his relationship (Tr. p. 27). Thayne had been present in state court on one occasion at the time of questioning, defendant did not recall either of the officers asking about an attorney. The state charge of possession of a weapon was dropped on March 31, 1993 (Tr. p. 28, Ex. B. to def. memorandum, File Entry 26).

At the time defendant was questioned he told Boland he was looking for another attorney (Tr. p. 29). The defendant never did hire another attorney. He wasn't sure he was going to hire an attorney or not (Tr. pp. 30-31). At the time of interrogation, Thayne did not tell defendant he had to cooperate (Id.), or that Thayne would make an unfavorable recommendation (Tr. ...