Opinion
Case No. CR-04-127-S-RCT.
December 22, 2004
MEMORANDUM DECISION AND ORDER REGARDING MOTION TO SUPPRESS EVIDENCE OF DEFENDANT'S ALLEGED CONFESSION
Pending before the Court is the Defendant's Motion to Suppress Evidence of Defendant's Alleged Confession (and Request for Evidentiary Hearing) (Docket # 58). Having conducted an evidentiary hearing on December 7, 2004, and after considering the evidence and the legal authorities provided by each side, the Court now rules as follows:
FINDINGS OF FACT
1. Defendant David Roland Hinkson is charged by Superseding Indictment with soliciting other persons to murder federal officials or employees, specifically United States District Judge Edward J. Lodge, Assistant United States Attorney (AUSA) Nancy D. Cook, and Internal Revenue Service Special Agent Steven M. Hines, as well as threatening to do bodily harm to the family members of Cook and Hines (hereafter referred to as the "Solicitation and Threats Case"). All of these solicitations and threats are alleged to have occurred in the District of Idaho after the Defendant was arrested on November 21, 2002, and thereafter placed on pretrial release in another federal criminal case then pending against Hinkson in this District.2. Hinkson is currently detained in federal custody at the Ada County Jail in Boise, Idaho, pending sentencing after a jury returned verdicts of guilty on twenty-six counts of income tax and employment tax violations, structuring financial transactions to avoid currency transaction reporting requirements, and after Hinkson pled guilty pretrial to two counts of introducing misbranded drugs and devices into interstate commerce under the Food and Drug Act (FDA) (hereafter collectively called the "Tax Case").
3. William R. Long is a Special Agent with the Federal Bureau of Investigation (FBI). He has been an FBI agent for about fifteen and one-half years. He is currently assigned to the Coeur d'Alene, Idaho, office and has been stationed there for about six and one-half years. His duties relate to the investigation of domestic terrorism including anti-government groups such as the Aryan Nation and other militia groups.
4. Agent Long participated in the initial arrest of Hinkson in the Tax Case on November 21, 2002. He was not involved in the investigation of the Tax Case, but assisted other federal agencies when the FDA contacted the FBI for deployment of the FBI's Special Weapons and Tactics (SWAT) team to execute a federal search warrant and an arrest warrant which resulted in Hinkson's initial arrest. Agent Long is a member of the SWAT team.
5. Hinkson was granted pretrial release following his arrest in the Tax Case shortly after November 21, 2002.
6. In March 2003, Agent Long became the case agent in this prosecution of Hinkson when he received information that an individual had voluntarily contacted the FBI and the United States Attorneys' Office to report solicitations to murder and threats made by Hinkson against federal officers and their families.
7. On or about March 24, 2003, Agent Long was contacted by AUSA Cook, who indicated that she was the subject of such a threat.
8. On March 24, 2003, Agent Long contacted James C. Harding. He interviewed Harding on three different occasions, one of which was on March 26, 2003. As a result of these interviews, Harding was outfitted by the FBI with a recording device and subsequently made a tape recording of a conversation he had with Hinkson on March 27, 2003.
9. On April 4, 2003, AUSA Ralph Gonzalez filed an ex parte motion with Chief United States District Judge B. Lynn Winmill for revocation of Hinkson's pretrial release in the Tax Case for violating the terms and conditions of his release. Agent Long assisted in preparing that motion. The motion alleged that Hinkson was a danger to the community and also a flight risk. Exh. 1.
10. Agent Long was aware that Hinkson was represented in the Tax Case by an attorney, Brit Groom.
11. On Friday, April 4, 2003, Hinkson was arrested by Agent Long pursuant to an arrest warrant authorized by Chief Judge Winmill for violating the terms and conditions of his pretrial release. The arrest took place at the Idaho County Sheriff's Department substation located in Kooskia, Idaho.
12. The arrest was planned and conducted by Agent Long and Idaho County Sheriff's Detective (Det.) Lieutenant Scott Mealer. Det. Mealer informed Agent Long that Hinkson had recently filed a report alleging that one of his former employees, Mariana Raff, had stolen money from Hinkson. Agent Long and Det. Mealer determined that arresting Hinkson would be accomplished best by having Det. Mealer call Hinkson into the Sheriff's substation on the pretense of discussing Hinkson's allegations regarding Raff. They determined that this would be the easiest and safest approach, and would help avoid a confrontation in the more rural setting at Hinkson's home and his WaterOz manufacturing facility. An arrest at Hinkson's home would require the involvement of a large number of law enforcement officers, as had been the case for Hinkson's previous arrest and the search of his premises on November 21, 2002.
13. On April 4, 2003, Agent Long intended to both complete the arrest and try to interview Hinkson on the Solicitation and Threats Case he was investigating. He and Det. Mealer were both at the small Kooskia Sheriff's substation when Hinkson arrived. Three other government agents were outside.
14. Agent Long and Det. Mealer were both watching through a window as Hinkson drove up to the substation. Hinkson was alone. Det. Mealer noticed Hinkson fumbling in his pocket with something, but could not identify the object.
15. Hinkson entered the building and began talking with Det. Mealer about the Raff matter. Hinkson gave Det. Mealer some information including a card, PIN numbers, and an account statement for the account from which money was allegedly taken in Mexico. The two men briefly discussed aspects of the alleged theft. Exhs. 3 4.
16. Approximately five minutes after Hinkson entered the station, Det. Mealer asked Hinkson to sit down. He introduced Hinkson to Agent Long and told Hinkson that he would continue to look into the Raff allegations.
17. Det. Mealer then told Hinkson that Agent Long was there "on a totally separate situation." Hinkson made an unclear response. Det. Mealer then said: "[Agent Long has] got some information he needs to deal with you on with [sic] the FBI and federal stuff. So I am going to turn everything over to him, basically, and have him talk to you right now." Exh. 3, p. 9.
18. After Det. Mealer's statement, the following dialogue between Hinkson and the officers then took place, which Hinkson partially recorded with a pocket cassette tape recorder:
Agent Long: Dave, what I have for you is a warrant for your arrest.
Hinkson: Why?
Agent Long: The warrant is the judge signed an order to revoke your pretrial release.
Hinkson: Why?
Agent Long: I'm going to explain that to you, okay.
Hinkson: (Inaudible).
Agent Long: Before I do that, okay, since you're under arrest at this time, do you have any weapons on you or anything like that?
Hinkson: No.
Agent Long: Okay. Go ahead and stand up.
Hinkson: Can I make my phone call?
Agent Long: Not right now. Stand up. Stand up.
Hinkson: I really don't want to go with you right now. It's Friday night.
Agent Long: Well, it's not really negotiable. Put your hands behind your head. I'm just going to pat you down for any weapons.
Hinkson: I can't call my lawyer?
Agent Long: Not right now you can't.
Hinkson: How come? That's just my tape recorder.
Det. Mealer: It's on. Do you want me to leave it on?
Agent Long: You can turn it off.
Exh. 3, pp. 9-10.
19. Agent Long was concerned with officer safety and wanted to assume complete control of the situation, so he twice ordered Hinkson to stand up. Hinkson did not immediately comply with Agent Long's requests and the agent reasonably interpreted Hinkson's words and actions as argumentative and intended to delay the arrest. Shortly after, Hinkson stood up, and Agent Long held Hinkson's hands on his head while the agent conducted a search of Hinkson's person.
20. Agent Long was aware that Hinkson owned a handgun because the agent had seen such a weapon near Hinkson's bed during his November 21, 2002, arrest. The agent wanted to complete a pat-down search for weapons to ensure that Hinkson was not armed.
21. Hinkson asked the questions, "Can I make my phone call?" and "I can't call my lawyer?," while Agent Long was in the midst of the pat-down search of Hinkson's person and while the agent had one hand on Hinkson's head, using his other hand to frisk Hinkson for weapons. Agent Long acknowledges that he understood Hinkson's statement to be a request to call his lawyer when this statement was made. The agent could not accommodate the request at the time it was made because he was still engaged in searching Hinkson. This statement was the only direct reference Hinkson made to a lawyer during the arrest. He did not refer to an attorney again until almost three hours later during his transport to a detention facility in Coeur d'Alene, Idaho.
22. Agent Long testified that it is a standard policy of the FBI to not tape record interviews unless express permission is granted by the Special Agent in Charge (SAC) of the regional FBI division, here the Salt Lake Division. Agent Long did not have the SAC's permission to tape an interview with Hinkson on April 4, 2003. Agent Long therefore directed Det. Mealer to turn off Hinkson's cassette recorder after the agent found it during his pat-down search of Hinkson and Det. Mealer had determined that the recorder was operating.
23. At no time did Hinkson ask the officers to leave the cassette recorder on to record the proceedings, nor did he ask for the interview to be recorded.
24. After completing the search of Hinkson's person, Agent Long asked Hinkson to sit back down. Agent Long decided that he would not handcuff or physically restrain Hinkson because Hinkson was not physically resistive.
25. After Hinkson sat down, Agent Long told Hinkson that the agent was going to read him his Miranda rights. The agent placed an Advice of Rights form on the desk in front of Hinkson, Exh. 2, and pulled up a chair on the same side of the desk so that Hinkson could read along while the agent read it aloud. Agent Long proceeded to read Hinkson his Miranda rights verbatim from the form. Agent Long pointed to each particular item with his pen as he slowly read the items word for word from the form. Between the reading of each item on the form, Agent Long gave Hinkson the opportunity to comment or ask a question if he did not understand. At the end of each item, Agent Long would ask Hinkson if he understood, and Hinkson would either say "yes" or nod his head affirmatively. Hinkson tried to interject two or three times while Agent Long read through the form, and Agent Long asked Hinkson to wait for him to finish reading the form.
The Advice of Rights form states:
YOUR RIGHTS
Before we ask you any questions, you must understand your rights.
You have the right to remain silent.
Anything you say can be used against you in court.
You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning.
If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.
If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.
WAIVER OF RIGHTS
I have read this statement of my rights and I understand what my rights are. At this time, I am willing to answer questions without a lawyer. Exh. 2 (signature blocks omitted).
26. Agent Long read the Waiver of Rights portion of the form to Hinkson and asked if Hinkson understood. Hinkson then nodded his head to indicate that he understood the waiver and, without Agent Long or Det. Mealer posing any questions, immediately began talking. Agent Long viewed this action as a verbal waiver and did not ask Hinkson to sign the form.
27. Agent Long and Det. Mealer both signed the Advice of Rights form as witnesses. The form was dated 4/4/03 and states that the Advice of Rights was completed at 3:30 p.m. Hinkson did not sign the form.
28. Hinkson spontaneously began speaking, without prompting from the officers, about his allegation that Raff stole money from him in Mexico. He said that Raff "set him up" on a trip to Mexico and that she arranged for a wire transfer of funds. Hinkson stated that Raff made the arrangements for the transfer of $86,000 to Mexico, that they went there on a business trip, and that he believed that she and an unidentified third party in Mexico stole that money. He stated that he had not been able to recover $32,000 of the missing funds.
29. The time that elapsed between Hinkson's request to call his lawyer and his subsequent voluntary statements about Mariana Raff after Agent Long read him his Miranda rights was less than five minutes.
30. The Court finds that Defendant Hinkson knowingly and voluntarily waived his constitutional rights to remain silent and to have the assistance of a lawyer during any questioning on April 4, 2003, when he himself initiated communication and made statements to the officers about matters potentially relevant to the solicitation investigation immediately after Agent Long had carefully read Hinkson his Miranda rights.
31. Agent Long asked Hinkson a question about the wire transfer of money to clarify whether it was all wire transferred or whether some of the money was carried or transmitted by alternate means. He also asked how much money was recovered.
32. Hinkson continued to respond to Agent Long's follow-up questions. In response to Agent Long's question about when and with whom Hinkson went to Mexico, Hinkson said that he traveled with Raff. Hinkson said that she spoke Spanish and so she represented him in arranging the wire transfer. Agent Long asked how she could have stolen the money, and Hinkson said that he did not know because the transaction was all in Spanish.
33. Hinkson stated that he told Raff that he wanted his money back and that he wanted to have the third person in Mexico responsible for taking it hurt or killed. Hinkson stated that Raff offered to "get that done" for the price of $6,000. Hinkson also stated that he had $6,000 stolen from him, that he never paid Raff $6,000 for anything, and that $6,000 was the amount of money Raff needed for a down payment on a house.
34. Agent Long then told Hinkson that he had information from a person other than Raff that Hinkson had made statements about hurting or killing Judge Lodge, AUSA Cook and IRS Agent Hines. Hinkson responded that he been very frustrated and angry since his arrest in November 2002, and that he had been "venting" out of frustration in conversations with some people.
35. Agent Long asked with whom Hinkson had had these conversations. Hinkson mentioned "J.C.," the initials for James C. Harding. Agent Long asked whether he "vented" to Anne Bates, and Hinkson said "yes." Hinkson then asked about Mariana Raff, and Hinkson said "yes." Agent Long asked if he talked to other people about that subject and to whom, and Hinkson answered, "yes" and "just people I know."
Anne Bates is the Government's witness regarding Counts 10 and 11 of the Superseding Indictment.
36. Agent Long asked why Hinkson was angry with Judge Lodge. Hinkson stated that Judge Lodge never made a correct ruling in his career on the bench. He said that he had followed Judge Lodge's rulings and mentioned specifically the Judge's dismissal of charges against the FBI agent involved in the shooting of Vicky Weaver during the Ruby Ridge incident in the 1990's.
37. Agent Long asked why Hinkson was angry with AUSA Cook. Hinkson stated that Cook forged the indictment against him and that she had a personal vendetta against him.
38. Agent Long asked why Hinkson was angry with IRS Agent Hines. Hinkson stated that Hines had stalked him since 1997 and Hines's goal was to put Hinkson and his company, WaterOz, out of business. Hinkson stated that Hines lied to the grand jury about Hinkson's involvement with two militia groups and illegally dealing in machine guns and incorrectly summarized testimony from grand jury proceedings.
39. Agent Long asked if and why Hinkson was angry with Grangeville attorney Dennis Albers. Hinkson stated that he was angry because Albers represented a former WaterOz employee in a successful lawsuit against Hinkson.
40. Agent Long asked directly if Hinkson ever offered anyone money to hurt or kill Judge Lodge, AUSA Cook, IRS Agent Hines, or Albers. Hinkson's response was "I never with intent said I would pay to kill someone." Agent Long asked the question again. Hinkson said that he never seriously offered to pay to have anyone killed or hurt and that he never actually hired anyone to do such a thing. Hinkson then mentioned the third party in Mexico (who allegedly stole Hinkson's money) and stated, "I did say it would be really nice if someone hurt that guy."
41. Agent Long asked Hinkson about Hinkson's conversations with Harding in regard to hurting Judge Lodge, AUSA Cook, IRS Agent Hines, and Albers. Hinkson said that he did not remember whether he had made a statement about hurting Hines. Agent Long asked if Hinkson had ever discussed hurting Hines's children and Hinkson denied doing so. Agent Long asked if Hinkson had ever made any effort to locate the homes, offices, vehicles and personal information about these people and Hinkson denied doing so.
42. Agent Long asked Hinkson if he had ever "vented" in a conversation with Raff, Harding or Bates about killing or hurting Judge Lodge, Cook, or Hines. Hinkson stated that he had said to Harding "I wish God would smite them" and that "I have said if someone was to kill them, it would be worth $10,000 to me." Agent Long tried to expand on that line of inquiry, but Hinkson later denied that he had ever made these statements during the interview. The agent chose not to argue with Hinkson about his change in answers.
43. Agent Long asked Hinkson about Pat Johnson, a man Agent Long knew from other investigations to be involved in militia activity in the Kamiah, Idaho, area. Hinkson stated that some militia members, including Pat Johnson and Marty Dodson, guarded Hinkson and his home and business for two days after he was released from jail following his November 21, 2002, arrest because Hinkson expected government agents to come back to murder him.
44. Agent Long asked Hinkson about transferring money to foreign countries. Hinkson stated that he had talked about moving money to Antigua for legitimate business purposes. Hinkson also stated that he said in the past that the judicial system was corrupt and that he thought it was time to not be an American anymore. The interview ended at that point.
45. At no time did Agent Long ask questions related to charges in the pending Tax Case.
46. After the interview, Hinkson asked for the bottle of water he had in his vehicle. Det. Mealer went out to the vehicle and brought the bottle to Hinkson.
47. Hinkson was concerned about what would happen to his car, car keys and tape recorder. Agent Long said that he did not want to take those items along with Hinkson because the jail staff will not generally want to be responsible for such items. Hinkson asked if his associate, Rich Bellon, could pick up the property for him.
48. Hinkson made a phone call to Bellon from the Kooskia Sheriff's substation, leaving a message on Bellon's message machine saying that he had been arrested and asking Bellon to come pick up the property at the Sheriff's substation. At this time, Hinkson did not ask to call a lawyer and did not make any other phone calls.
49. Hinkson was then transported by Agent Long and a Department of Treasury agent to the Kootenai County Jail in Coeur d'Alene. The drive takes approximately three hours. During the drive, Hinkson asked how he could make bond or get out of jail. Agent Long explained that a detention hearing would likely be held the following week.
50. When they neared the Coeur d'Alene area at the end of the drive from Kooskia, Hinkson asked if he could call his attorney. Hinkson stated that he did not want to be in jail over the weekend and that he wanted someone to assist him in getting out of jail.
51. Agent Long permitted Hinkson to use the agent's cellular telephone to make the call. Agent Long dialed the number. Agent Long understood Hinkson to be speaking with a lawyer from overhearing Hinkson's side of the conversation.
52. The tape recording of the first part of the April 4, 2003, arrest ended up in attorney Brit Groom's possession at some later time. Groom had a transcript of the tape made which was introduced as Exhibit 3 at the suppression hearing. The tape is Exhibit 4.
53. At the detention hearing five days after the arrest, Agent Long did not remember that Hinkson said "I can't call my lawyer?" during the arrest. He admits that he testified in error that Hinkson did not tell Agent Long that he had a lawyer. The Court does not find this error in recollection of facts to be so egregious as to discredit the agent's testimony. The Court finds Agent Long to be a credible and truthful witness who testified in great detail to many of the factual findings that the Court now makes above. The Court also finds that the exhibits introduced into evidence and the written reports filed as appendices to the legal memoranda by the parties corroborate Agent Long's testimony at the suppression hearing in all material respects.
DISCUSSION
I. Hinkson's Fifth Amendment Claim.
The Defendant moves the Court to suppress evidence of the statements he made to Agent Long after his arrest for violation of the terms and conditions of his pretrial release in the Tax Case. Hinkson argues that the statements made to Agent Long during the arrest ("Can I make my phone call?" and "I can't call my lawyer?") were two unequivocal requests for counsel. As such, Hinkson argues that the statements he made in response to Agent Long's subsequent questioning should be suppressed because they were obtained in violation of the rule in Edwards v. Arizona, 451 U.S. 477 (1981), that police must stop an interrogation once a suspect invokes his right to counsel. It is undisputed that these statements were made during the course of physically securing Hinkson into custody and before any conversation yielding potentially incriminating admissions occurred between the Defendant and Agent Long.
A suspect who is in custody and is being interrogated may assert his right to remain silent, at which point the interrogation must cease. See Michigan v. Mosley, 423 U.S. 96, 103-04 (1975). After an accused asserts his right to counsel, he is "not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards, 451 U.S. at 484-85. The Court has developed a two-part test: "if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked." Smith v. Illinois, 469 U.S. 91, 95 (1984).
Initially, the Government asserts that a person may not invoke his or her Miranda rights outside of the context of a custodial interrogation. The Government urges that any request for a lawyer made by Hinkson was invalid as anticipatory because Hinkson's statements were made while Agent Long was in the process of arresting Hinkson and searching his person, not during the actual interrogation. The Court notes that the limitations on anticipatory assertion of a right to counsel are uncertain. See McNeil v. Wisconsin, 501 U.S. 171, 182 n. 3 (1991) ("We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than `custodial interrogation.'"); cf. Miranda v. Arizona, 384 U.S. 436, 473-74 (1966) ("If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease."). Generally, "rights must be asserted when the government seeks to take the action they protect against." McNeil, 501 U.S. at 182 n. 3.
The Ninth Circuit acknowledges that Miranda rights do not apply "outside the context of custodial interrogation" but has not clearly defined the parameters of a custodial context. See United States v. Wright, 962 F.2d 953, 955 (9th Cir. 1992) (" McNeil strongly suggests that Miranda rights may not be invoked in advance outside the custodial context."). Other circuits have held that invocation of Miranda rights is only valid during custodial interrogation or when such interrogation is imminent. See, e.g., United States v. Rambo, 365 F.3d 906, 909 (10th Cir. 2004) ("For the protections of Miranda to apply, custodial interrogation must be imminent or presently occurring."); United States v. Muick, 167 F.3d 1162, 1166 (7th Cir. 1999) ("in order for a defendant to invoke his Miranda rights the authorities must be conducting interrogation, or interrogation must be imminent") (internal quotations omitted); United States v. Grimes, 142 F.3d 1342, 1348 (11th Cir. 1998) (" Miranda rights may be invoked only during custodial interrogation or when interrogation is imminent").
With this limited guidance in mind, the Court is unpersuaded by the Government's argument that Hinkson's requests were invalid as anticipatory. Hinkson's requests were made in custodial circumstances because no reasonable person would feel free to leave after being told that he was under arrest pursuant to a warrant, forced to submit to a search of his person, and told that going with the arresting officer was "not really negotiable." See United States v. Hayden, 260 F.3d 1062, 1066 (9th Cir. 2001) ("in-custody determinations must be based on the totality of the circumstances and are reviewed according to whether a reasonable person in such circumstances would conclude after brief questioning [that] he or she would not be free to leave") (internal citation and quotation omitted). Agent Long had not asked any questions at this point, but Hinkson had been in a noncustodial interview with Det. Mealer at the Sheriff's substation immediately prior to his arrest. Hinkson was also aware, prior to his asking for a phone call, that he was being taken into custody by Agent Long. Det. Mealer had introduced Agent Long moments before as someone from the FBI who wanted to talk with Hinkson about "federal stuff." A reasonable person in Hinkson's position would have believed that custodial interrogation was imminent in this circumstance.
The anticipatory invocations rejected by the Supreme Court and other courts were made under different circumstances and were temporally removed from the subsequent interrogation. See, e.g., McNeil, 501 U.S. at 176-79 (holding that the Sixth Amendment request for counsel made at a bail hearing was insufficient to constitute a request for Miranda right to counsel for interrogations held two and four days later); Wright, 962 F.2d at 955 (holding that request for counsel made by counsel on defendant's behalf at a plea proceeding was insufficient request for counsel for interrogation conducted almost two weeks later on unrelated charges); Grimes, 142 F.3d at 1347-48 (holding that request for counsel made on claim of rights form was insufficient to require suppression of statements made at various times to undercover agent in jail); Alston v. Redman, 34 F.3d 1237, 1244-48 (3d Cir. 1994) (holding that request for counsel made on public defender's form was insufficient request for counsel for interrogation made three days later).
In contrast here, within a span of less than five minutes: (1) Det. Mealer told Hinkson that the FBI agent was there to speak with him; (2) the FBI agent told Hinkson that he was under arrest; and (3) Hinkson asked for his phone call and then asked about calling a lawyer. The actions were too close in time for the Court to decide that Hinkson's request to call his lawyer was unreasonably untimely. It would be arbitrary and unjust to require a defendant in these circumstances to wait until after the first custodial question is asked to effectively assert his right to counsel. Moreover, the agent admits that he understood Hinkson to be asking if he could call a lawyer. The Court therefore holds that Hinkson's questions were not anticipatory.
The Government argues alternatively that Hinkson's statements were not unequivocal and unambiguous requests for counsel and, therefore, Agent Long had no duty to cease any interrogation. The Court is faced with a very close question. Hinkson's counsel correctly concedes that police have the right to complete the arrest procedures necessary to safely secure the arrestee in custody, and to administer Miranda warnings prior to accommodating a requested telephone call. Hinkson was fully admonished by Agent Long of his right to remain silent and to have the assistance of a lawyer during any questioning. Hinkson understood those rights when he initiated the conversation with the officers by talking about Raff and the money stolen in Mexico.
Whether an accused has unambiguously invoked his Miranda rights is determined by an objective, fact-specific test: whether a suspect "articulate[d] his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Davis v. United States, 512 U.S. 452, 459 (1994). "[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to Counsel, our precedents do not require the cessation of questioning." Id. (emphasis in original). The Ninth Circuit recently acknowledged that "[o]ur own precedent is not much help since it is somewhat inconsistent on what constitutes an equivocal request for a lawyer." Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003).
The Court finds that, viewed together, Hinkson's statements constitute an unequivocal request for counsel. His statement "Can I make my phone call?" would not alone satisfy the standard set forth in Davis because there was no reason to assume that his phone call would necessarily be to his attorney. As Agent Long testified, it is just as likely that a detainee would want to call a relative or spouse in those circumstances. However, Hinkson clarified his intent with his follow-up questions of "I can't call my lawyer?" and "Why not?," eliminating any ambiguity in the earlier question. Moreover, Agent Long agreed at the evidentiary hearing that, "as of the time that [he] had finished reading the Miranda warnings to [Hinkson], [he] knew that [Hinkson] had asked to call his attorney." Agent Long's statement is not controlling on this issue because the test is objectively based, but the Court considers such an admission as obviously relevant to its inquiry.
In fact, Hinkson's first phone call was to Rich Bellon, an unrelated third party. Hinkson did not ask to call his attorney again until approximately three hours later.
The Government argues that even if Hinkson's questions were understood as a request for counsel, it was made prior to Miranda warnings and therefore was ambiguous because the police could not know the reason why Hinkson wanted his lawyer. In support of its position, the Government points out that in McNeil, the Supreme Court emphasized that the Edwards rule "requires, at a minimum, some statement that can reasonably be construed to be expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police." McNeil, 501 U.S. at 178 (emphasis in original). The Ninth Circuit acknowledges that "[a] statement concerning an attorney made before interrogation is far less likely to be a request for attorney assistance during interrogation than a similar statement made during custodial interrogation." United States v. Doe, 170 F.3d 1162, 1166 (9th Cir. 1999).
The Government suggests that a "careful parsing" of the colloquy during Hinkson's arrest shows that Hinkson was more likely seeking counsel in order to avoid being arrested or to arrange bail so that he would not spend the weekend in jail. The fact that Hinkson called only Rich Bellon to pick up his property from the Sheriff's substation and did not call a lawyer until almost three hours later certainly supports the Government's position that there was no reason to believe that Hinkson wanted a lawyer to counsel him during his talk with Agent Long. However, the Ninth Circuit in Doe did not simply parse the language of Doe's request for an attorney; rather, the court looked to the totality of the circumstances in which the statement was made. Id. at 1164. In Doe, the accused asked "What time will I see a lawyer?," after his detention but before any booking process, and over four hours prior to being brought into an interrogation room. Id. Given the circumstances, it was reasonable for the court to conclude that "Doe's question was an inquiry regarding the time at which appointed counsel would be made available." Id. at 1166.
The circumstances are very different in Hinkson's case. Hinkson had just been in a noncustodial interview with Det. Mealer and was expecting to have to speak with Agent Long, and so he made his statements in the context of an imminent custodial interrogation. As such, there is no presumption that his question was not a request for assistance of counsel during the interrogation. Taken in context, Hinkson's statements may reasonably be construed as an expression of a desire for the assistance of an attorney in dealing with custodial interrogation, regardless of whether he also wanted assistance in avoiding arrest or obtaining bail.
The Court holds that Hinkson validly invoked his Miranda right to counsel during his arrest. However, that is not the end of the inquiry as to whether his subsequent statements should be suppressed. Once the right to counsel is invoked, subsequent interrogation is allowed if "the accused himself initiates further communication, exchanges, or conversations with the police." Edwards, 451 U.S. at 484-85. An accused "initiates" a conversation if he "evince[s] a willingness and a desire for a generalized discussion about the investigation; not merely a necessary inquiry arising out of the incidents of the custodial relationship." Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983) (plurality opinion). The Supreme Court notes that questions such as a request for a drink of water or for use of a telephone would constitute "necessary inquiry arising out of" the custodial relationship and would not be viewed as initiating and consenting to interrogation, but has not offered further guidance. See id.
Hinkson's counsel acknowledged at argument that "according to the testimony, it is very clear that Mr. Hinkson initiated the conversation" with Agent Long after his Miranda warnings were read. The Court finds that the evidence conclusively establishes that Hinkson initiated the post- Miranda conversation. Agent Long testified that he had to stop Hinkson from interjecting while the agent read Hinkson his Miranda rights, and that as soon as he was through with administering the Miranda warnings, Hinkson immediately began talking about Mariana Raff. There is no evidence to the contrary.
Hinkson cites no legal authority for his suggestion that Agent Long "should never have Mirandized him, as [Agent Long] knew defendant had asked for his lawyer." The Court finds this argument to be without merit and counsel for Hinkson said at oral argument that his position had "softened" on that claim. A suspect asserting one Fifth Amendment right does not preclude the police from fully informing the suspect of his full panoply of constitutional rights to ensure that he understands all of them.
This conversation was not one necessarily arising out of the incidents of the custodial relationship, and so may properly be considered a generalized discussion about the investigation. Hinkson claims that this is incorrect because he did not initiate a conversation with Agent Long about the solicitation and threats investigation specifically. He asserts that he wanted to discuss only Raff and the missing money, and instead, Agent Long wrongfully led Hinkson into a discussion about unrelated matters. Hinkson cites no authority for his proposition that police interrogation after a suspect has initiated communication must be limited only to the specific subject about which the suspect first spoke. The Court holds this argument to be without merit. Once the right to remain silent is waived, no case the Court can find restricts the police to passively listening, nor does any case hold that officers cannot ask questions and steer the conversation to other topics.
The courts consistently use the words "communication, exchanges or conversations" to characterize valid post-initiation interrogations. See, e.g., Edwards, 451 U.S. at 485; see also Bradshaw, 462 U.S. at 1045 (implying that the initiated discussion may be a "generalized discussion relating directly or indirectly to the investigation") (emphasis added). These words suggest that it is entirely appropriate for the police to be actively engaged in a dialogue with a suspect in these circumstances. Moreover, the Court sees nothing in the phrase "a generalized discussion about the investigation" requiring such a narrow view of what a police officer may discuss with a suspect after the suspect has initiated a conversation. See, e.g., Bradshaw, 462 U.S. at 1045-46 (holding that a suspect asking "[w]ell, what is going to happen to me now?" evinced a willingness and a desire for a generalized discussion about the investigation).
What happened here is that Hinkson wanted to focus on one aspect of the investigation; Agent Long on another. It is axiomatic that a suspect has a constitutional right to remain silent and to terminate a police interrogation at any time by invoking this right. That right is limited — there is no general right to be silent as to certain issues, but communicative as to others. If during the course of an interrogation a police officer proceeds to topics about which a suspect does not want to speak, then the suspect has the right and the obligation to terminate the interrogation by saying that he does not wish to speak further or about that subject or by simply ceasing to speak. As the Supreme Court has noted, "the Court's fundamental aim in designing the Miranda warnings was `to assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process.'" Colorado v. Spring, 479 U.S. 564, 572 (quoting Miranda, 384 U.S. at 469).
Regardless, this is not a case where, as Hinkson's counsel suggests, the suspect started to speak about the weather and then the police started asking about a crime. Hinkson began discussing Raff, her involvement with large sums of money which Hinkson had transferred out of the country, and implicit threats of violence against the person he thought was responsible for stealing from him in Mexico, all of which are relevant aspects of the general solicitation and threats investigation of Hinkson. There is no suggestion that Hinkson attempted to stop answering Agent Long's questions once they moved into other areas of discussion of more immediate concern to the FBI. The Court finds that Hinkson initiated a generalized discussion regarding the investigation by speaking about his allegations against Raff without police prompting.
But even if the conversation is initiated by a suspect, the case law establishes a second step in the waiver inquiry: "the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation." Bradshaw, 462 U.S. at 1044. A waiver must be voluntary, knowing and intelligent. Spring, 479 U.S. at 572. A suspect's waiver is knowing and intelligent if it was made after the suspect has been fully advised of his rights, he understands those rights, and he has not been threatened or induced to talk. Bradshaw, 462 U.S. at 1044. A waiver is voluntary if it is made as a free and deliberate choice, without intimidation, coercion or deception. See Shedelbower v. Estelle, 885 F.2d 570, 572-74 (9th Cir. 1989). The court must consider "the totality of circumstances" including a suspect's "background, experience, and conduct." United States v. Most, 789 F.2d 1411, 1417 (9th Cir. 1986) (citing Bradshaw, 462 U.S. at 1046).
Initially, Hinkson argues that (1) the Advice of Rights form is invalid because he did not sign it; and (2) whether Hinkson was Mirandized is moot because "any further questioning of the defendant after he has requested his attorney is `fruit of the poisonous tree' and should be suppressed." The Ninth Circuit does not require a signed form for a waiver of Miranda to be valid. See, e.g., United States v. Cazares, 121 F.3d 1241, 1244 (9th Cir. 1997) ("To solicit a waiver of Miranda rights, a police officer need neither use a waiver form nor ask explicitly whether the defendant intends to waive his rights."). The Court agrees that the simple fact that Hinkson was first given his Miranda warnings does not control the issue of waiver. See Edwards, 451 U.S. at 484-85 (declaring that a valid waiver of the right to counsel "cannot be established by showing only that [the accused] responded to further police-initiated custodial interrogation even if he has been advised of his rights"); Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir. 1999). However, the fact that Hinkson was properly Mirandized is relevant to whether his subsequent initiation of the conversation was a knowing and intelligent waiver of his Miranda rights in light of the totality of circumstances.
The Government has successfully demonstrated that Hinkson was made fully aware of his Miranda rights prior to initiating the conversation which led to his interrogation. The Court finds as a matter of fact that Agent Long was methodical in his administration of the Advice of Rights form and was careful to complete each item without allowing Hinkson to interrupt the proceeding but in a manner designed to ensure that Hinkson understood each of his constitutional rights. Hinkson's argument that his interruptions could be assumed to be further requests for counsel is unpersuasive because Agent Long paused at the end of each point to allow Hinkson to make any requests or ask clarifying questions to make sure Hinkson understood his rights. Hinkson had ample opportunity to request counsel during these pauses, but did not do so. Moreover, Hinkson has had at least some experience with law enforcement from his prior arrest and arraignment the previous November and so the Court can presume he has some prior understanding of his constitutional rights.
Hinkson does not allege that he was in any way unable to understand the substance of the Miranda warning and, based upon the uncontradicted testimony of the agent at the hearing, Hinkson in fact did agree at the time that he understood what Agent Long was reading. The Court therefore finds that Hinkson initiated the subsequent conversation knowingly and intelligently. Hinkson did not repeat his request to call a lawyer when the agent read each of the following statements regarding the right to counsel:
• You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning.
• If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.
• If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.
• I have read this statement of my rights and I understand what my rights are. At this time, I am willing to answer questions without a lawyer.
Exh. 2. The Court holds that Hinkson waived the right to the assistance of counsel by freely and voluntarily initiating conversation with the officers with a full and complete understanding of his constitutional rights.
Hinkson asserts that any waiver was not voluntary because, "[a]lthough [he] asked twice to consult with his lawyer, he was reluctant to be insistent for fear of retaliation from Agent Long, who had been abusive with [him] just four months before at the time of his arrest on November 21, 2002, in the Tax Case." The Court rejects Hinkson's unsupported allegation of fear of retaliation in part because the allegations of abuse relate to the general circumstances of his prior arrest and he makes no specific allegations against Agent Long. The Court notes that Agent Long was in the Sheriff's office when Hinkson entered to speak with Det. Mealer on April 4, 2003, but Hinkson apparently did not recognize Agent Long from the encounter on November 21, 2002, as he did not react to the agent's presence. That is not surprising, given that the agent was wearing black SWAT clothing with helmet and face mask during the November 21, 2002, in the company of several other similarly dressed arrest team members.
The Court also finds no fear of retaliation because Hinkson's conduct during the April 4, 2003, arrest did not indicate any particular fear beyond surprise at being arrested again. The Government's suggestion that Hinkson was argumentative and resistive is somewhat overstated, but there is no evidence that Hinkson was particularly compliant with Agent Long's instructions or that he was intimidated by Agent Long or the custodial surroundings of the small Sheriff's substation. Based on the evidence adduced at the hearing, Hinkson's unsupported allegations of fear do not amount to a legally sufficient showing of intimidation, coercion or deception and, accordingly, do not overcome the Government's showing that Hinkson freely and voluntarily waived his Miranda rights when he initiated the conversation by talking about his complaint regarding Raff and the missing money in Mexico.
II. Hinkson's Sixth Amendment Claim.
Hinkson also argues that his statements should be suppressed because the Government violated his Sixth Amendment right to counsel. He asserts that the Sixth Amendment should preclude statements made without counsel present because charges against him were pending in the Tax Case and he was represented by counsel in that case.
The Sixth Amendment right to counsel attaches "at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." United States v. Gouveia, 467 U.S. 180, 188 (1984) (internal quotation and citation omitted). This right is "offense specific": statements by a defendant relating to uncharged offenses are admissible even though the right to counsel attached for a charged offense. See Texas v. Cobb, 532 U.S. 162, 167-68 (2001); see also McNeil, 501 U.S. at 177-78 (1991). The Sixth Amendment right only attaches to subsequent charges if the charges are considered the same offense as the prior offense. Cobb, 532 U.S. at 167-68. The Supreme Court has adopted the test from Blockburger v. United States, 284 U.S. 299 (1932), to determine whether an uncharged crime is to be considered the same offense as the charged crime such that the Sixth Amendment right to counsel would attach to the uncharged offense. See Cobb, 532 U.S. at 173. Blockburger holds that if one crime requires proof of facts that the other does not, then they are not identical charges for the purpose of avoiding multiple prosecutions in violation of the Fifth Amendment's double jeopardy clause. Blockburger, 284 U.S. at 304.
Precedent forecloses Hinkson's argument that his Sixth Amendment right to counsel was violated. See United States v. Danielson, 325 F.3d 1054, 1066 (9th Cir. 2003) ("[Defendant's] right to counsel was offense specific. . . . That is, he had a right to counsel only on the offenses for which he had been indicted, and on any other offenses that constituted the `same offense' under the Blockburger test.") (internal citation omitted); see also McElvain v. Lewis, 283 F. Supp.2d 1104 (C.D. Cal. 2003) (noting that "the Sixth Amendment right to counsel is offense specific, with no exception for crimes that are `factually related' to a charged offense") (internal quotation and citation omitted). The question here of whether Hinkson's Sixth Amendment right attached to the April 4, 2003, arrest turns on whether the elements of one offense (the Tax Case charges) require proof of a fact that the other offenses (Solicitation and Threats charges) do not. See Blockburger, 284 U.S. at 304.
The test is easily applied to the facts in Hinkson's case. No formal charges were pending against Hinkson in relation to the alleged Solicitation and Threats which were the subject of Agent Long's interview with Hinkson. Under Blockburger, Hinkson's right to counsel stemming from the Tax Case would not attach to the Solicitation and Threats Case because "each provision requires proof of an additional fact which the other does not." Id. at 304. The Court need not conduct an element-by-element analysis to find that distinctly different facts must be proven to meet the elements of the crimes alleged in the Solicitation and Threats case versus the elements of the crimes charged in the Tax Case. The Court finds that the two sets of charges are sufficiently unrelated that Hinkson's Sixth Amendment right to counsel was not violated by his second arrest and interview on April 4, 2003.
In the Solicitation and Threats Case, Hinkson is charged with (1) influencing, impeding or retaliating against a Federal official by threatening or injuring a family member, in violation of 18 U.S.C. §§ 115; and (2) solicitation to commit a crime of violence, specifically killing or attempting to kill a Federal officer or employee, in violation of 18 U.S.C. §§ 373, 1114.
In the Tax Case, Hinkson was charged with (1) introducing misbranded and adulterated drugs into interstate commerce, in violation of 21 U.S.C. § 331; (2) willful failure to collect or pay over tax and willful failure to file income tax returns, in violation of 26 U.S.C. §§ 7202, 7203; and (3) structuring financial transactions to evade currency transaction reporting requirements and aiding and abetting in such transactions, in violation of 31 U.S.C. § 5324 and 18 U.S.C. § 2.
Hinkson's unsupported argument that the Sixth Amendment should apply because the evidence obtained during the interview was used to the Government's advantage in the Tax Case for purposes of revocation of his pretrial release is unpersuasive. The issue in the detention hearing was whether Hinkson posed a danger to the community or a risk of flight sufficient to warrant detention without bail pending trial. The prosecution may not use evidence obtained in violation of the Sixth Amendment in its case-in-chief, but such evidence may be used for other purposes. See, e.g., Danielson, 325 F.3d at 1067 (statements gathered in violation of Sixth Amendment may be used to impeach conflicting testimony of the witness). Even if the Sixth Amendment had attached to the conversation initiated by Hinkson for purposes of the Tax Case proceedings, the evidence obtained could properly be considered in the pretrial detention hearing.
III. Spoilation of Evidence.
Hinkson also argues that by having Det. Mealer turn off the cassette recorder after it was discovered during the pat-down frisk of Hinkson's person, Agent Long violated Hinkson's due process rights by preventing him from obtaining tangible evidence that he did not confess. He claims that the Government acted in bad faith because Agent Long allegedly (1) lied at the detention hearing, has a "history of lying" in Hinkson's prosecution, and stopped the recording of the conversation in order to prevent Hinkson from having proof of the agent's perjury; and (2) failed to follow a departmental policy of allowing arrestees to retain non-threatening or non-harmful personal items.
The Government does not have a general obligation to collect and preserve evidence that is potentially exculpatory. United States v. Martinez-Martinez, 369 F.3d 1076, 1086-87 (9th Cir. 2004). "[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Id. at 1086 (quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (internal quotation omitted)). Under Martinez-Martinez, the defendant must show that the potential evidence would be material to the case and the Government acted in bad faith. See id. at 1087. "Materiality" requires a showing that the evidence "possess[es] an exculpatory value that was apparent before the evidence was destroyed, and [was] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. (quoting California v. Trombetta, 467 U.S. 479, 488-89 (1984)).
While the Government in Hinkson's case did not "destroy" any evidence, Hinkson analogizes turning off the cassette recorder to intentionally destroying interview notes or erasing tape recordings of an interview between a defendant and an informant. While the merits of this analogy are questionable, the Court holds that even if such actions were equivalent, Hinkson's claim fails. A tape recording of the conversation between Hinkson and Agent Long would undeniably be relevant to Hinkson's defense, but whether it was of exculpatory value at the time it was turned off is not readily apparent. Agent Long may have intended to interview Hinkson at that time, but the agent could not have known while he was frisking Hinkson whether Hinkson would be amenable to discussion. Moreover, a tape recording of the conversation would just as likely have been incriminating as exculpatory. However, the Court need not speculate whether a recording of the rest of the conversation would have been exculpatory and material because Hinkson fails to demonstrate that the Government acted in bad faith.
The Court rejects Hinkson's characterization of Agent Long's participation in the investigation as proceeding in bad faith. As discussed in the Findings of Fact section, the Court finds Agent Long to be a credible and truthful witness. He admits that he testified in error during the April 9, 2003, detention hearing regarding whether Hinkson ever told the agent he had a lawyer. Hinkson's labeling this misstatement as "perjury" and "fraud on the Court" is gross exaggeration. When Hinkson asked "I can't call my lawyer?," Agent Long was in the middle of securing and searching him. Hinkson did not again ask to speak with his lawyer until about three hours later. The Court finds it reasonable that a police officer who was concentrating on controlling a suspect and searching for weapons might not remember the exact details of the suspect's statements during his performance of the arrest, especially when they were not emphasized or repeated by the suspect after the arrest procedure was completed by the officer. Agent Long has been forthcoming in his acknowledgment of the inconsistency and his general testimony is otherwise internally consistent and corroborated by the exhibits introduced into evidence and the written reports filed as appendices to the legal memoranda by the parties. Hinkson makes a general allegation of Agent Long's "history of lying" but alleges no other specific instances.
The Court notes that Agent Long's statement at the April 9, 2003, detention hearing that Hinkson calls "prejury" was not clearly in conflict with the arrest transcript or the agent's later testimony and may have been a misunderstanding. At the detention hearing, Agent Long was asked whether Hinkson was Mirandized, and the agent said that he read the Miranda warnings to Hinkson and asked Hinkson whether he understood the warnings. Counsel then asked "Did [Hinkson] agree to talk to you? Did he ever tell you that he had a lawyer?" Agent Long responded, "He never said anything like that. He immediately, in fact, started talking." In this context, Agent Long could reasonably have understood at that time that the question was referring to Hinkson's statements during the Miranda warning, not during the entire course of the arrest and interview. Agent Long has consistently testified that Hinkson made no such statements while he was reading the Advice of Rights form.
There is no support for the claim that by turning off the cassette recording, Agent Long intended to lie about the subsequent conversation. As discussed, the agent did not know at that time that an interview would occur, and regardless, was acting pursuant to an FBI policy of not tape recording interviews. Hinkson does not allege that he asked either Agent Long or Det. Mealer to turn the cassette recorder back on or in any way protested when Det. Mealer turned off the recorder. Without such a request, neither Agent Long or Det. Mealer could have been on notice that Hinkson wanted the machine to continue to record.
Finally, the Court notes that Det. Mealer was in the Boise courthouse and available to testify at the suppression hearing. Hinkson chose not to call Det. Mealer, the witness who overheard Hinkson's statements to Agent Long. The Court assumes that if the Sheriff's detective would have had impeaching testimony to offer, defense counsel would have called the officer to the stand. The Court therefore holds that there is no demonstration of bad faith on the basis of stopping the tape recorder.
Hinkson's remaining arguments are without merit. He offers no legal or factual support for his assertion that it is a "departmental policy" to allow an arrestee to retain non-harmful personal items. The Court rejects this claim of bad faith for lack of evidence that such a policy exists. Hinkson's final claim, that Agent Long prevented Hinkson from gathering evidence on his own behalf, is also unsupported by the evidence. The cases Hinkson relies on deal with a defendant's right to interview potential witnesses, not to tape record a conversation with a police officer. Hinkson has no legal support for his argument that Hinkson should have the right to record an interview, and regardless, he did not ask to have the interview recorded. For these reasons, Hinkson's due process claim fails.
CONCLUSIONS OF LAW
1. The questions asked by Hinkson during the course of his arrest were not anticipatory and constituted an unambiguous Miranda request for a telephone call to a lawyer.
2. Hinkson himself initiated further communication with authorities by beginning a generalized discussion about the investigation without prompting or questioning by the police once he had been read his constitutional rights under Miranda.
3. The Government met its burden of showing that Hinkson knowingly and voluntarily waived his right to counsel.
4. Hinkson's Fifth Amendment rights were not violated and the statements he made in the course of the interrogation cannot be suppressed on that basis.
5. The Sixth Amendment right to counsel did not attach to the April 4, 2003, interrogation because no criminal proceedings had been initiated on the alleged Solicitation and Threat conduct that was the subject of the interrogation.
6. The Government has no obligation to obtain evidence that might prove exculpatory. Agent Long did not act in bad faith, when pursuant to FBI policy, he had Det. Mealer turn off Hinkson's tape recorder. Therefore no wrongful destruction of evidence occurred. It is pure speculation that a verbatim recording would have proven helpful to Hinkson in this case.
ORDER
The Defendant's Motion to Suppress Evidence of Defendant's Alleged Confession (Docket # 58) is DENIED.
IT IS SO ORDERED.