Free Reply Brief/Memorandum - District Court of Delaware - Delaware

· Case 1 :08—cr—00007-SLR Document 23 Filed 06/06/2008 Page 1 of 3
U.S. Department of Justice
United States Attorney ’s Ojjice
District of Delaware

, 1007 Orange Street, Suite 700
no. Box 2046 (302) srs-sz 77
_ Wilmington, Delaware 19899-2046 FAX (302) 573-6220
June 6, 2008
Honorable Sue L. Robinson
United States District Court
_ J. Caleb Boggs Federal Building
844 King Street
Wilmington, DE 19801
l Sagglemental Memorandum
Re: United States v. Ryan Evans, - J
Criminal Action N0. 08-07-SLR
I Dear Judge Robinson: ‘
l On April 30, 2008, Your Honor heard testimony relating to the matter of United States v.
Ryan Evans. At the conclusion ofthe hearing, Your Honor directed the parties to set a schedule to -
provide the Court with briefings stating each parties respective positions. Both parties agreed that
the Government would file its Memorandum by May 19, 2008, with the defendant’s response due
on June 2, 2008. The goverrnnent was given until June 6, 2008 to tile a response to the defendanfs
brief The Government respectfully submits the following Supplemental Memorandum to respond
to additional issues raised by the defendanfs brief:
U _ 1. Facts.
On January 10, 2008, Wilmington Police Officers executed a Search Warrant at 428 S.
Jackson Street, Wilmington, DE. Wilmington Police Detective Randolph Pfaff contacted the
defendant in his room after it had been secured by members of the SWAT team; the defendant was
handcuffed when contacted by Detective Pfaff Once in the room where the defendant was located, . »
Detective Pfaff noticed the window was open and the screen covering the window had a hole in it.
Detective Pfaff gave the defendant his Miranda warnings. The defendant stated he
. understood his Miranda rights and Detective Pfaff began questioning him. When questioned if there
- was any contraband or large sums of money in the house, the defendant initially denied that any
l contraband was located within the residence. After further questioning, the defendant did not orally
respond, but physically disclosed a large amount of currency that was hidden in the bed. After
‘ discovery of the currency, the defendant was asked what type of firearm he threw out the window. _
· The defendant responded, “a 9n1rn." The defendant then requested an attorney and questioning ‘
. ceased. In addition to the currency and firearm, a subsequent search of the residence revealed 85

Case 1:08—cr—00007-SLR Document 23 Filed 06/06/2008 Page 2 of 3
bags of heroin that weighed approximately 2,55 grams. The defendant did not make any statement
regarding the heroin. _
As a result of the arrest, the defendant was charged with three crimes: 1) possession with
intent to deliver heroin, in violation of 21 U.S.C. §§ 84l(a)(1) and (b)(1)(c); 2) carrying a firearm
during and in relation to a drug—trafficking crime (i.e., Count I) and possessing the firearm in
furtherance of said crime, in violation of 18 U.S.C. § 924(c)(1)(A); and 3) being a felon in
_ possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
H. Legal Argument.
In its post-hearing brief, the Government argued that the defendant received his Miranda
warnings and his subsequent waiver and statements were made "knowingly, voluntarily, and _
intelligently? The Government also asserts that the defendant’s conduct, experiences, and
background created an implied waiver of those rights.
Although Officer Pfaff received a verbal response from the defendant stating that he
understood his Miranda rights, the defendant argues, inter alia, that the Officer violated the
defendant’s Miranda protections by not "[obtaining] his express or implied waiver or consent to
questioning to ensure that he understood the nature ofthe rights being abandoned..." Def Pre-Trial
Motion P.6. The Government submits that the defendant’s physical response and answers to
questions, along with his age, experience, and background, created an implied waiver of his Miranda
protections.
In North Carolina v. Butler, 441 U.S. 369 (1979), the Supreme Court, wrote, "An express
i written or oral statement of waiver of the right to remain silent or of the right to counsel is usually
strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to
‘ establish waiver." Id. at 373. The Court summarized its decision in writing, "...a court may find an
intelligent and understanding rejection of counsel in situations where the defendant did not expressly
state as much." Id. at fn 4. It is worth noting that when Butler was decided, ten of eleven United
States Courts of Appeals...held that an explicit statement of waiver is not invariably necessary to
. support a finding that the defendant waived the right to remain silent..."' Butler, 441 U.S. at 375-6.
2
After deciding that an express waiver was not required to be valid, the Court wrote, "the
question of waiver must be determined on "the particular facts and circumstances surrounding that _
1 United States v. Speaks, 453 F.2d 966 (1* Cir. -1972); United States v. Boston, 508 F.2d 1171 `
(1* Cir. 1974); UnitedStates v. Stuckey, 441 F.2d 1104 (3d Cir. 1971); Blackman v. Blackledge, 541
F.2d 1070 (4* Cir. 1976) ;...United States v. Cavallino, 498 F.2d 1200 (5* Cir. 1974);...United States .
v. Ganter, 436 F.2d 364 (7* Cir. 1970); UnitedStates v. Marchildon, 519 F.2d 337 (8* Cir. 1975);...
United States v. Moreno-Lopez, 466 F.2d 1205 (9* Cir. 1972);...Bond v. United States, 397 F.2d 162 E
(10* Cir. 1968) (but see Sullins v. United States, 389 F.2d 985 (10* Cir. 1968)); United States v.
Cooper, F.2d 1060 (1974)..." Butler, 441 U.S. at 376 fn 5.
· 2Since the Butler decision, the Sixth Circuit has also determined that an express waiver is _ - i
not necessary, most recently in United States v. Nicols, 512 F.3d 789 (6* Cir. 2008). i

- Case 1 :08—cr—00007-SLR Document 23 Filed 06/06/2008 Page 3 of 3
case, including the background, experience, and conduct ofthe accused." Butler, 441 U.S. at 374-5
o _ quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
The Third Circuit faced a similar situation in United States v. Velasquez, 626 F.2d 314 (3d
Cir. 1980). Pauline Velasquez was given Miranda warnings after her arrest and made incriminating
statements; the only witness to the statements was the police officer that questioned Velasquez.
Velasquez stated that she understood her rights, but no explicit waiver was received by the
investigating officer. Velasquez argued that the mere fact that she made statements following
Miranda warnings did not constitute a sufficient waiver of her Fifth Amendment rights to permit the
use of the statements against her. Velasquez, 626 F.2d. at 319. The Court wrote, "We hold that on
this record, Pauline's subsequent willingness to answer questions after acknowledging that she
understood her Miranda rights is sufficient to constitute an implied waiver under Butler? Velasquez,
626 F.2d at 620.
Similar to Velasquez, in the case at bar, there was no express waiver. The defendant was
given his Miranda warnings, he stated he understood those warnings, and he proceeded to make
incriminating statements. The defendant, prior to making the statements, never indicated that he
wished to invoke his Miranda rights. Once the defendant did request an attomey, all questioning
was ceased. l
The Government submits that the defendant’s acts combined with his background,
experience, and conduct demonstrates an implied waiver of rights by the defendant. The defendant
. is a twenty-six year old male who speaks English. The defendant’s criminal history reflects forty-
three arrests resulting in three felony and twelve misdemeanor convictions in the State of Delaware.
The defendant stated he understood his Miranda rights after hearing them in this arrest and on aprior g
occasion. The defendant’s physical response by revealing the currency hidden on his bed reflects
a waiver of his Miranda rights by the defendant. Finally, after making incriminating statements, the
defendant requested an attorney, further demonstrating his awareness and understanding of his
Miranda rights.
_ The statements made by the defendant to Wilmington Police Detective Pfaff should not be
- suppressed. The defendant was given Miranda warnings and stated he understood them. The
_ defendant’s subsequent actions combined with his background, experience, and conduct create an
implied waiver of his Miranda protections.
l Respectfully submitted,
I COLM F. CONNOLLY
_ United States Attorn y
BYE; E %
. awn E. Mart
Special Assistant Unite Stat Attorney
cc: Eleni Kousoulis, Esquire (By CM/ECF w/enclosure)

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