Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Filing 489

Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Doc. 489

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DENNIS K. BURKE United States Attorney District of Arizona ANCA I. POP Assistant U.S. Attorneys United States Courthouse 405 W. Congress Street, Suite 4800 Tucson, Arizona 85701 Telephone: [phone] Email: [e-mail] Attorneys for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, v. Plaintiff, CR-09-0658-TUC-DCB (CRP) GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO SUPPRESS STATEMENTS

Daniel Thomas, Defendant.

Plaintiff, United States of America, by its attorneys, Dennis K. Burke, United States Attorney, and Anca I. Pop, Assistant United States Attorney, respectfully submits this response to the defendant's Motion to Suppress Statements. As explained in the attached Memorandum of Points and Authorities, the defendant's statements were not obtained in violation of the Fifth Amendment or Miranda. 1/ Therefore, the statements should not be suppressed. The Motion to Suppress is currently scheduled for hearing before the Honorable Magistrate Judge Charles R. Pyle on Tuesday, November 3, 2009. The trial is currently scheduled to begin on January 12, 2010, before the Honorable District Judge David C. Bury.

DENNIS K. BURKE United States Attorney District of Arizona s/Anca I. Pop Anca I. Pop Assistant U.S. Attorney

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Miranda v. Arizona, 384 U.S. 436 (1966)
Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. MEMORANDUM OF POINTS AND AUTHORITIES ANTICIPATED FACTS: On March 27, 2009, at approximately 8:49 p.m., Tohono O'odham Nation K-9 Police Officer Leonard Henry was working traffic control on Highway 86, at milepost 120, in the Schuk Toak District on the Tohono O'odham Nation. Officer Henry stopped the vehicle driven by co-defendant Armando Padilla because he had reasonable suspicion that several traffic violations were committed. The defendant, Daniel Thomas, was a passenger in the front seat of the vehicle. Subsequent to the stop, a total of 243 pounds of marijuana were discovered in the vehicle. For details with regard to the stop and the events that led to the discovery of the marijuana please refer to The Government's Response to Motion to Suppress Evidence filed in this case. Officer Henry handcuffed Padilla and Thomas. No questions were asked of Thomas throughout the encounter. At approximately 9:28 p.m., Officers Ray Elkdreamer and George Traviola III arrived to assist Officer Henry. Padilla was placed in Officer Traviola's patrol car. Officer Henry's K-9 partner, "Robbie," alerted for illegal drugs on the large square object in the backseat and also near the trunk, in the area just above the license plate. Inside the trunk, the officers discovered nine other bales of marijuana packaged the same way as the bale found inside the vehicle. The total weight of the marijuana found in the vehicle was 243 lbs. Padilla and Thomas were placed under arrest but they were not questioned by the TOPD officers and they did not make any statements. At approximately 9:30 p.m., Officer Elkdreamer drove the vehicle with the illegal drugs and with Thomas detained in the front passenger seat to the U.S. Customs Office in Sells, AZ. Officer Henry escorted them. Upon
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arrival at the U.S. Customs Office, at approximately 9:41 p.m., the defendants and the illegal drugs were turned over to Immigration and Customs Enforcement (ICE) Special Agent Leander Mase who was the duty agent that day. At approximately 12:49 a.m., on March 28, 2009, Agent Mase advised Padilla of his Miranda rights. He indicated that he understood his rights and signed a waiver. Padilla stated he met Thomas through his girlfriend who said Thomas lost some cars for doing something. Padilla stated that he had seen Thomas about one week before at the Bashas' store in Sells and gave Thomas a ride home. Since that time, Padilla stated that he has given Thomas a ride about three times around the Sells area. Padilla stated that on March 27, 2009, in the afternoon, he received a call from Thomas. Thomas asked him to come to Sells to move something for him. When he arrived in Sells, Padilla called Thomas from a Shell Service Station and Thomas instructed him to drive to his house. At Thomas's house, Thomas told Padilla that he had some stuff in his house that needed to be moved to San Pedro and left by the road. Padilla told Thomas that he was only going to take it to San Pedro and that was it. Thomas agreed; he then started bringing gunnysacks tied with rope from his house and loading them into the trunk of Padilla's car. Padilla did not help Thomas load the marijuana in the car but knew that it was marijuana because he could smell it. After Daniel finished loading the car, they left heading towards State Route 86. Padilla passed a police vehicle; he saw it turn around and catch up to them. Padilla told Thomas that the cops were behind and asked him what to do. Thomas told Padilla that he should pull over. After they pulled over they were arrested. At approximately 2:26 a.m., on March 28, 2009, Agent Mase advised Thomas of his Miranda rights. He indicated that he understood his rights and signed a waiver. Thomas gave a statement. Officer Henry was also present. Thomas stated that he was a high school graduate and was about four or five credits short of a Bachelor's of Arts Degree. Thomas stated that the night before some Mexicans came to his house with stuff. Thomas stated that his companion, Lou, talked to them and they kept it on the hill. Thomas claimed that Lou

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called Padilla. Because Agent Mase believed that Thomas was not honest and was making untruthful statements, he terminated the interview at about 2:45 a.m. At approximately 4:00 a.m., Padilla and Thomas were taken to the Tohono O'odham Police Department (TOPD). They were temporarily quartered there until they could be booked into the Federal Correctional Institution (FCI) in Tucson, AZ, which normally happens around 2:00 p.m. Thomas stated that at around 7:00 a.m., he was given some food--yogurt, milk and juice. At approximately 9:00 a.m., TOPD Sergeant David Cray transported Padilla and Thomas from the TOPD to the ASAC Sells Office where they were going to stay until they could be booked into the FCI in Tucson, AZ. At approximately 11:00 a.m., at the duty Assistant United State Attorney's recommendation, Agent Mase re-interviewed Thomas. Agent Mase asked Thomas if he still understood his rights and Thomas stated that he did. Agent Mase asked Thomas if he was still willing to answer questions and Thomas said that he was. Agent Mase asked Thomas if he was willing to provide a written statement, and Thomas agreed. Thomas wrote that on Thursday, March 26, 2009, he returned home just before sunset and was informed by Lou that five Mexicans had stopped by and told him that they needed a ride with five packs of marijuana. Lou then talked to Thomas about what he had to do. Later that evening, Padilla called and Lou talked to him on the phone. However, Thomas claimed that he did not know what the conversation was about. The next day, March 27, 2009, Thomas went home at 5:00 p.m., and at around 6:00 p.m., Padilla called and told Thomas that he was coming over to the house. When Padilla got there, at around 8:00 p.m., both Thomas and Lou went outside to say "hello." Thomas claimed that he then went inside the house and stayed there while the Mexicans loaded the marijuana in the vehicle. At around 9:00 p.m, Lou asked Thomas to go with Padilla in the car and take it to a dirt road by San Pedro. Thomas stated that he made a "dumb judgment" by getting into the car, and that 30 minutes after they started driving, they got stopped by Officer Henry. Throughout his two interviews, Thomas did not ask for a lawyer at any time, and he never expressed an unwillingness to answer questions or a desire to terminate the interview.
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The first interview was not terminated at Thomas's request; rather, Agent Mase terminated it because he believed that Thomas was dishonest. The agent was calm and cordial to Thomas during the interview. He was not threatening and did not make any promises or threats. They were simply run-of-the-mill interviews. Thomas did not display at any time any attention or concentration deficits. He was alert, clear, coherent and cooperative, and was conducting himself consistent with his age and education. Thomas never indicated that he suffered from headaches or nosebleeds during his interviews or detention, and did not show any signs of unusual stress. Moreover, Agent Mase will testify that Thomas did not show any signs of cognitive impairment. To the contrary, Thomas indicated that he understood his rights and ultimately gave a written, very well articulated, statement. Moreover, none of the TOPD Correction Officers who came in contact with Thomas that night noticed any bleeding, excessive stress or any other physical or mental impairment, and Thomas did not make any complaints about headaches or nose bleeding. In fact, the Inmate Medical Report completed that night specifically states that Thomas was not disoriented, confused or unconscious, that he did not complain of pain, that he did not have visible trauma or bleeding, that there were no visible signs of alcohol or drug influence or withdrawal, and that when he was asked if he had a disease or needed medical care, Thomas answered, "No." At approximately 11:55 p.m., Agent Mase interviewed Padilla again. Agent Mase asked Padilla if he still understood his rights and he stated that he did. Agent Mase asked him if he was willing to answer questions and Padilla stated that he was. The agent asked him whether it was he or Thomas who called first and Padilla stated that Thomas called him. When Agent Mase told him that Thomas claimed that Padilla initiated the call first, Padilla said that was incorrect. Padilla stated that he stood by the car at Thomas's house and saw Thomas bring out the burlap packs from the house. Padilla then told Agent Mase that while at the TOPD, he and Thomas were housed in the same cell. While there, Thomas asked Padilla if he thought that Lou would be able to cover for him, and Padilla responded that he did not know. At approximately 2:30 p.m., Sergeant Cray and TOPD Criminal Investigator Manny Gonzalez transported Padilla and Thomas to the FCI in Tucson, AZ.
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On September 18, 2009 the defendant filed a Motion to Suppress Statements, arguing that Thomas did not knowingly and intelligently waive his rights and that his confession was involuntary. Therefore, the defendant argues that the statements he made subsequent to his arrest should be suppressed. The government disagrees and submits the following response.

II. LAW AND ARGUMENT: For a statement made during custodial interrogation to be admissible, the defendant's "waiver of Miranda rights must be voluntary, knowing, and intelligent."United States v. Garibay, 143 F.3d 534, 536 (9th Cir.1998). A waiver is valid if the "totality of the circumstances surrounding the interrogation" shows an uncoerced choice and the proper level of comprehension. Moran v. Burbine, 475 U.S. 412, 421 (1986). A. The defendant knowingly and intelligently waived his Miranda rights because the totality of the circumstances indicate that he had sufficient mental capacity, comprehension skills, and knowledge A waiver is made knowingly and intelligently if it is made with "a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Burbine, 475 U.S. at 421. In determining whether a defendant knowingly and intelligently waived his Miranda rights, the courts consider (1) the defendant's mental capacity;(2) the defendant's verbal comprehension skills; (3) whether the defendant encountered any language difficulties during custodial interrogation; (4) whether the defendant signed a written waiver; (5) whether the defendant was advised of his rights in his native tongue; (6) whether the defendant appeared to understand his rights; (7) whether a defendant had the assistance of a translator; (8) whether the defendant's rights were individually and repeatedly explained to him; and (9) whether the defendant had prior experience with the criminal justice system. Garibay, 143 F. 3d at 537- 538. Thomas argues that because he has difficulty concentrating and remaining focused on the task at hand, he was unable to knowingly and intelligently waive his rights. He
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claims that in 1995 he had a head injury, and after that he has had difficulties concentrating and remaining focused, paying attention during conversations, remembering times and places of meetings, and resisting what others want, he has had headaches, and he has made some poor decisions. In support of this claim, Thomas submitted a neuropsychological evaluation prepared by James Allender. The evaluation indicates that Thomas has some deficits in attention and concentration. However, nothing in Allender's report supports Thomas's claim that his mental capacity or comprehension skills caused him to sign a waiver that was not knowingly and intelligently made. The evaluation states that, while he demonstrated some mild word finding difficulty in conversation and lost his train of thought occasionally, Thomas"was found to be alert, cooperative, and oriented for person, place, and time. His fund of personal and general information was consistent with his age and education (some college course work). . . His speech was clear and coherent without evidence of loose associations or tangential thinking." Allender determined that Thomas' IQ of 101, which is a measure of intellectual abilities, was average, that his Verbal Comprehension Index of 94, which is a measure of verbal information and reasoning, was average, that his Perceptual Organization Index of 121, which is a measure of visuo-spatial problem solving, was in the superior range, that his Processing Speed Index of 122, which is a measure of psychomotor speed, was in the superior range, and that his Working Memory Index of 78, which is a measure of attention and concentration, was borderline. The report notes that Thomas scored average or above on tasks of conceptual reasoning, visual scanning, language generation, and response inhibition. The report concludes that Thomas' abilities were "in the average range or above except on tasks of attention and concentration and mental arithmetic."The report further concludes that while the "results of deficits in attention and concentration with relatively intact abilities in most areas evaluated could be 2/ consistent with a history of right frontal lobe injury," they were not The government notes that Allender does not claim that the results are consistent with a head injury, but rather, that they could be a consistent with such injury.
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independent diagnostic of such damage. Nothing in this report indicates that Thomas' mental capacity or comprehension skills prevented him from knowingly and intelligently waive his Miranda rights. Allender does not claim that Thomas did not knowingly and intelligently waive his rights. To the contrary, he emphasizes that the defendant is an intelligent 36-years-old adult, who has average or above average memory, reasoning and communication abilities. This conclusion is further supported by the statements made by Thomas himself. Thomas admitted that while it is harder for him to concentrate, he can ignore distraction and focus on a task. He also admitted that he can divide his attention and multi-task adequately. Thomas further admitted that he can comprehend language adequately and can organize things properly. These statements indicate that he can concentrate and refocus whenever he wants to do so and that he has no problem understanding things. Moreover, he stated that he worked for the Nation and was moved up to a supervisory position. Being promoted to a supervisor position clearly indicates that Thomas has no problem paying attention, concentrating, and understanding at an average or above-average level. Although he mentioned to Allender that he has had headaches and nosebleeds after the head injury, and in order to avoid stress, he does not want to argue and gets easily persuaded to do things, the relevance of such statements is minimal. Just because he wants to avoid stress and headaches, Thomas cannot reasonably claim that he waived his rights unintelligently and unknowingly. Rather, Thomas' skills indicate that he had the mental capacity and comprehension to waive his rights knowingly and intelligently, which is exactly what he did in this case. Approximately two months after the first evaluation, the defense attorney asked Allender to submit an addendum to his report addressing the impact of Thomas's 1995 head injury on his ability to make decisions about his rights after his arrest. In order to do this evaluation, Allender met with Thomas for one hour and asked him to describe how he was feeling throughout the night of his arrest. Thomas told Allender that he had headaches, nosebleeds and wanted to avoid stress that night. Allender notes that Thomas's
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cousin, Blaine Joaquin, told him that Thomas gets distracted more easily and demonstrates poor judgment. Based on this information, Allender concludes that getting distracted and wanting to avoid stress "could have played into [Thomas's] writing a confession which he initially refused to do." This conclusion is mere speculation and, as such, is irrelevant in this case. Allender does not state that these circumstances actually played any role in Thomas's decision to write a confession or that they caused him to waive his rights unknowingly, unintelligently or involuntarily. Allender further concludes that [i]f earlier in the evening he had focused on protecting his rights after he had heard his right [sic], but hours later at the second interrogation he had lost that focus and was at that time focused on his discomfort he might have given the officers what they wanted as a way to avoid further stress at the moment. If he had been read his rights at that time he might have been able to refocus on his need to protect his rights rather than avoid the stress related to his headache. Thus his ability to make an informed decision would have been compromised by his brain injury, headache and stress intolerance related to the assault in 1995. This statement is nothing more than a hypothetical with multiple unknown variables. At no point does Allender state that this situation actually happened or that it more than likely happened. His conclusion is riddled with "ifs" and "mights" and represents nothing but mere guesswork. In essence, Allender concludes that (1) if Thomas had focused on his rights at the first interview, and if he had lost that focus at the second interview, and if he chose to focus on his discomfort instead, he might have given the statement to avoid stress, and (2) that if the agent would have read all his rights a second time he might have been able to refocus on his need to protect his rights rather than focusing on avoiding stress. 3/ This conclusion does not represent a scientific conclusion. It is pure speculation The government would note that before the first interview the defendant was read his Miranda rights, he indicated that he understood his rights and signed a waiver. Thomas does not seem to claim that at the first interview he was unable to focus on his need to protect his rights, and Allender presumes that Thomas actually focused on protecting his rights at that time. Having focused on his rights, Thomas chose to waive his rights knowingly, intelligently and voluntarily. Thus, Thomas's first decision to protect his rights was reflected by his waiver of those rights; he did not invoke his rights. Later, before the second interview, he was reminded of his rights and he indicated that he still understood them and wished to proceed in the absence of an attorney. At that time, Thomas's decision to proceed was consistent with his previous decision (continued...)
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with no factual or scientific basis. Therefore, it should not be given any weight by this court and Allender should not be allowed to testify at the suppression hearing. Federal Rule of Evidence 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. In Daubert, the United States Supreme Court held that Rule 702 imposes a "gatekeeping" obligation on the trial judge to "ensure that any and all scientific testimony . . . is not only relevant, but reliable." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). The Court in Kumho clarified that the gatekeeping function is not limited to only "scientific" expert testimony, but applies to all expert testimony. Kumho Tire Co v. Carmichael, 526 U.S. 137 (1999); see also United States v. Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000). Although Rule 702 generally is construed liberally, the 9th Circuit has enumerated six preliminary question of law determinations to be made by the trial judge before determining the admissibility of expert opinions: (1) whether the opinion is based on scientific, technical, or other specialized knowledge; (2) whether the expert's opinion would assist the trier of fact in understanding the evidence or determining a fact in issue; (3) whether the expert has appropriate qualifications, i.e., some special knowledge, skill, experience, training or education on that subject matter; (4) whether the testimony is relevant and reliable; (5) whether the methodology or technique the expert uses "fits" the conclusions; and (6) whether its probative value is

(...continued) to protect his rights by signing a waiver. Thus, there is no reason to believe that if Agent Mase 28 would have actually re-read his rights instead of just reminding him of them, Thomas would have chosen not to waive his rights.
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substantially outweighed by the risk of unfair prejudice, confusion of issues, or undue consumption of time. Hankey, 203 F.3d at 1168. The government contends that, as it relates to his opinion in the addendum to his first evaluation, (1) Allender lacks the specialized knowledge or training, (2) does not have the appropriate qualifications and lacks the experience to support the proffered testimony with any reliability, (3) his opinion is not based on scientific, technical or specialized knowledge, (4) his testimony is irrelevant and unreliable, and, therefore, (5) it would not assist the court in its decision. There is nothing to indicate that Allender has any specialized knowledge, training or education to make the conclusions mentioned above. In fact, the defense counsel did not even submit a CV listing his education, training and experience. Moreover, Allender does not point to any scientific or specialized knowledge that he used to issue his opinion in the addendum. As noted above, his conclusions are purely hypothetical and have no basis in reality. Allender does not claim that the circumstances he listed in his conclusions actually existed or that they likely existed, and he does not point to any facts to support his conclusions. His conclusions are not based on facts, but rather, on mere speculative premises. Moreover, there is no indication that his final conclusions are the product of reliable principles and methods. Allender does not point to any principles or methods, let alone reliable principles or methods, that he applied to any facts in this case to arrive to these conclusions. Moreover, despite the fact that he states that the outcomes described in his conclusions might have occurred, he does not specify the probability of those outcomes. For the aforementioned reasons, his opinion is unreliable and irrelevant. Because an unreliable and irrelevant opinion cannot assist the court, Allender's opinion should be disregarded and his testimony should be precluded. Moreover, the proposed testimony of Thomas's cousin, Blaine Joaquin, who claims that Thomas is often unable to pay attention during conversations and is more influenced by others as a result of the head injury, and has demonstrated poor judgement, is also unreliable and irrelevant and should be precluded. Joaquin does not have the training and
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experience to state that the injury is the cause for Thomas paying less attention during conversations, being influenced by others, or making poor judgments. Moreover, he does not have the expertise necessary to claim that such conduct affected his ability to knowingly, intelligently and voluntarily waive his rights. What's more, while getting involved in drug smuggling is a clear example of poor judgment, waiving Miranda rights and confessing to marijuana smuggling is not. Poor judgment, getting more influenced by others, and failing to pay attention during conversations with his family and friends do not constitute defenses to criminal activity and or reasons for excluding subsequent confessions under the exclusionary rule. In addition, there is nothing to indicate that Thomas himself communicated that he was incapacitated in any way or unable to make a waiver knowingly and intelligently. To the contrary, he represented to Agent Mase that he was an educated adult by claiming that he was a few credits short of graduating from college with a Bachelor's degree. He did not tell Agent Mase or Officer Henry that he suffered from headaches or that he had nosebleeds. In fact, he did not tell this to anyone that evening. None of the TOPD Correction Officers who came in contact with Thomas that night noticed any bleeding, excessive stress or any other physical or cognitive impairment, and Thomas did not make any complaints about headaches or nose bleeding. In fact, the Inmate Medical Report completed that night specifically states that Thomas was not disoriented, confused or unconscious, that he did not complain of pain, that he did not have visible trauma or bleeding, and that there were no visible signs of alcohol or drug influence or withdrawal. It also notes that when Thomas was asked if he had a disease or needed medical care, Thomas answered, "No." Notably, Thomas merely claims that he wanted to get attention through the door, but no one opened it or offered to help. He does not claim that he actually communicated his medical condition to anyone.

Throughout his two interviews, Thomas did not ask for a lawyer at any time, and he never expressed an unwillingness to answer questions or a desire to terminate the
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interview. Thomas did not display at any time any attention or concentration deficits. He was alert, clear, coherent and cooperative, and was conducting himself consistent with his age and education. Thomas did not show any signs of unusual stress. Moreover, Thomas did not show any signs of cognitive impairment. There were also no language difficulties and the rights were communicated to Thomas in his native tongue. Prior to his first interview, Thomas indicated that he understood his rights orally and by signing a written waiver. Prior to his second interview, when the agent asked him if he still understood his rights and if he was still willing to answer questions, Thomas reaffirmed that he knew his rights and that he wished to answer questions in the absence of a lawyer. He ultimately gave a written, very well articulated, statement. The fact that he was able to write such a coherent statement is sufficient proof that he was able to knowingly, intelligently and voluntarily waive his rights. Moreover, Thomas has prior experience with the criminal justice system. On December 4, 2002, Customs Patrol Officers from Sells, assisted by the Tohono O'Odham Police Department, seized approximately 175.20 pounds of marijuana from Thomas's vehicle, which was parked in front of his residence in Sells Arizona. Further, on June 28, 2004, United States Immigration and Customs Enforcement Special Agents, along with United States Customs and Border Protection Patrol Officers, assisted by Tohono O'Odham Police Department, seized approximately 820.75 pounds of marijuana from Thomas's residence. Therefore, Thomas's personal life experience indicates that he was familiar with his Miranda rights, his option to waive those rights, and the consequences of such waiver. The aforementioned facts show that Thomas had the proper level of comprehension to waive his rights. Therefore, this court should find that Thomas's waiver was knowingly and intelligently made.

B. The defendant voluntarily waived his Miranda rights and made a confession
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because the totality of the circumstances indicate that his free will was not overborne "A waiver is voluntary if, under the totality of the circumstances, the confession was the product of a free and deliberate choice rather than coercion or improper inducement." Burbine, 475 U.S. at 421; United States v. Doe, 155 F.3d 1070, 1074 (9th Cir.1998). Thus, "[t]he test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne." United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988) (citing Haynes v. Washington, 373 U.S. 503, 513-14 (1963); United States v. Pinion, 800 F.2d 976, 980 (9th Cir. 1986); United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir. 1981)). A confession extracted by any sort of threat or violence, or obtained by promises or improper influence, will be found to be involuntary. However, "coercive police activity is a necessary predicate to the finding that a confession is not `voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Colorado v. Connelly, 479 U.S. 157, 167 (1986); Derrick v. Peterson, 924 F.2d 813, 819-822 (9th Cir. 1991). Absent the use of coercive activity to undermine the suspect's ability to exercise his free will, there can be no finding of involuntariness. Peterson, 924 F.2d at 818. The conduct of the agents, be it promises, threats, or actions, "must be sufficiently compelling to overbear the suspect's will in light of all attendant circumstances." Guerrero, 847 F.2d at 1366. In determining whether a defendant's will was over-borne in a particular case, the courts have assessed the totality of all the surrounding circumstances -- both the characteristics of the accused and the details of the interrogation. See Schneckloth v. Bustamonte,412 U.S. 218, 226 (1973). Some of the factors taken into account have included lengthy questioning, deprivation of food or sleep, threats of physical harm, improper psychological persuasion, the age, intelligence and education of the accused, the repeated or prolonged nature of the questioning, and whether Miranda warnings were given. Id.; Connelly, 479 U.S. at 164, n. 1. No one factor is controlling and focus is on "a
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careful scrutiny of all the surrounding circumstances." Bustamonte, 412 U.S. at 226. Applying the aforementioned test, it is clear that Thomas's waiver and statements were voluntary. Thomas was aware of the nature of the offense for which he was arrested and he was not subject to coercion or pressure. The agent was calm and cordial to Thomas during the interview. He was not threatening and did not make any promises or threats. The encounters were simply run-of-the-mill interviews. The interviews were short­ the first one lasted approximately 20 minutes and the second one was under an hour long. Thomas was not badgered repeatedly, but rather, he was interviewed briefly and only twice; he was not subjected to hours of interrogation. The first interview occurred approximately six hours after he was arrested, which was a reasonable time given the circumstances of his arrest. Thomas was transported to Sells at around 9:30 p.m. After collecting all the evidence, Agent Mase was able to finish the interview with Officer Henry at approximately 12:45 a.m., only ten minutes before he started to interview Padilla. The interview with Padilla ended at approximately 2:00 a.m., and only 26 minutes later, at 2:26 a.m., Agent Mase started Thomas's interview. These circumstances indicate that Agent Mase did not unreasonably prolong the first interview, but rather, that he diligently performed his duties. Moreover, although the second interview was conducted 14 hours after Thomas was arrested, the timing of this second interview was not unreasonable and was not an instrument of coercion. Rather, Agent Mase re-interviewed Thomas at the duty Assistant U. S. Attorney's recommendation, which was made in the morning. Before the first interview, Miranda warnings were read to Thomas, and he indicated both verbally and in written form that he understood his rights and wished to waive them. Before the second interview, Agent Mase asked Thomas if he still understood his rights and if he was still willing to answer questions, and Thomas reaffirmed that he knew his rights and that he wished to answer questions in the absence of a lawyer. Throughout these two interviews, Thomas did not ask for a lawyer at any time, and he never expressed an unwillingness to answer questions or a desire to terminate the interview.
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Thomas did not display at any time any attention or concentration deficits. Thomas is a 36-years-old adult of above-average intelligence and who has college education. At all times, he was alert, clear, coherent and cooperative, and was conducting himself consistent with his age and education. Thomas did not show any signs of unusual stress and did not communicate to Agent Mase or any of the officers that he suffered from headaches or nosebleeds or any cognitive impairments. Absent showing of coercive police activity, a defendant's mental condition alone does not justify a finding that the confession was involuntary under the Due Process Clause. Connelly, 479 U.S. at 164. Because Agent Mase was not even aware of any mental impairment, it cannot be claimed that he exploited Thomas's weaknesses. Moreover, Thomas was not deprived of food or sleep. Thomas admits that he was given food in the morning and there is no evidence that he did not sleep at all throughout the night. Thomas claims that he did not "effectively" rest that night. However, that he might not have slept that night as much as he would have slept had he not been arrested, does not mean that he was physically coerced by sleep deprivation. That Thomas voluntarily waived his rights and made a statement is further supported by the fact that he wrote a very articulated statement during his second interview. If he were so weak and fatigued by his headaches and the conditions of his detention and interview as to be incapable of making an unfettered decision to waive his rights and confess, he could not have written a statement like the one he provided. Nothing indicates that Thomas did not waive his rights and make a confession voluntarily. There is no evidence that the agents created a coercive atmosphere during the defendant's interview or that the agents employed any improper influence, threats, violence, or promises to induce the defendant to make an inculpatory statement. There is no evidence of even subtle psychological coercion. There is no evidence that Thomas's cognitive functions were impaired by his alleged headaches, nosebleeds or fatigue so as to prevent him from making a free decision and voluntary confession. To the contrary, the evidence in this case shows that the defendant was alert and coherent and made his
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statements voluntarily. III. CONCLUSION: The totality of the circumstances surrounding Thomas's interviews reveals both an uncoerced choice and the requisite level of comprehension. Therefore, the court may properly conclude that the Miranda rights have been properly waived and the confession was voluntary. Because there was no Fourth Amendment violation, Thomas's statements made following his arrest should not be suppressed under the exclusionary rule. Therefore, the United States respectfully requests that this honorable Court deny the defendant's motion to suppress statements. Respectfully submitted this 2nd day of October, 2009.

DENNIS K. BURKE United States Attorney District of Arizona s/Anca I. Pop ANCA I. POP Assistant U.S. Attorney

Copy of the foregoing served electronically or by other means this 2nd day of October, 2009, to: Jay Sagar, Esq.

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