Case o' The Week: Ninth Throws the Book(ing Q's) at 'em - Zapien and the "Booking" Exception to Miranda

 This time, “book ‘em” . . . . (and use their custodial statements against ‘em, too).
 United States v. Zapien, 2017 WL 2836162 (9th Cir. July 3, 2017), decision available here.

Players: Per curiam decision with Judges McKeown, Friedland, and D. Nevada District Judge Boulware.  

Facts: Zapien was arrested, Mirandized accused by DEA agents of being a drug dealer, and he invoked his right to counsel. Id. at *1. The agents switched up and began asking custodial, or “booking,” questions -- Zapien then said he wanted to provide additional information. Id. Zapien was Mirandized again, explained he wanted to talk – and then admitted he’d been involved in drug trafficking. Id. Over defense objection, the district court permitted the questions on the theory that the biographical questions did not constitute interrogation. Id. Zapien was convicted of meth charges after a jury trial and sentenced to ten years. Id. at *2.

Issue(s): “On appeal, Luna Zapien challenges the district court’s denial of the motion to suppress . . . . Luna Zapien argues that the questioning following his invocation of his right to counsel constituted interrogation.” Id. at *3.

Held: “We disagree. We conclude that the questioning was covered by the booking exception.” Id.

Of Note: Whether the “booking exception” applies is an intensely fact-bound inquiry. Here, the booking questions didn’t relate to the charged offense, there was no evidence that the agents played upon Zapien’s weaknesses or knew that he was particularly disoriented or upset, or no facts in the record that the agents used the booking questions as a pretext. Id. at *4. The panel also collects other fact patterns, looking at both booking questions and their context. Id. 
  The Zapien outcome is what it is, and the panel carefully portrays the DEA agents as boy scouts scrupulously respecting Miranda protections. As a practical matter, however, when it is investigating agents – and not U.S. Marshals –asking these “booking” questions, and when these agents are launching into these “booking” questions right on the heels of a defendant’s solid invocation, we who represent indigent clients know that this “booking exception” is an inevitable subterfuge of Miranda protections.   

How to Use: Two footnotes may provide a foothold to distinguish Zapien in future “booking exception” cases. First, the per curiam decision dodges the (apparently unresolved) question of whether the government, or the defense, bears the burden of “establishing the applicability of the booking exception.” Id. at *4 & n.1 On a case with closer facts, tagging the government with that burden may save the day. (And really, how can it not be the government’s burden, to show invoke an exception and dodge Miranda limits?)

  The panel is also careful to note that there was no indication that Zapien’s undocumented status (discovered during the booking questions) was “used or leveraged” by the agents. Id. at 4 & n.2. Watch for the abuse of that fact – discovered during booking – even where (as here), undocumented status is not an element of the charged offense.

                                               

For Further Reading: How will the richest and most powerful country in history treat the poorest, and most vulnerable, among us?

  That question may be answered in San Francisco.

  On Tuesday, July 18, the acting director of ICE pledged to target Sanctuary Cities with new waves of ICE agents, to apprehend undocumented aliens. See article here. 

  Two days later, the Honorable District Judge William Orrick (N.D. Cal) denied the federal government’s motion for reconsideration of his Sanctuary City order: his refusal to dismiss the civil suits of Bay Area Sanctuary Cities stands. See Ord. here.  Judge Orrick also concluded that the City of San Francisco stated a sufficient claim for declaratory relief. Id. at 2:9-10.

   Yesterday, Attorney General Sessions gave a speech in Philadelphia and called on local governments to assist the “crackdown on illegal immigration.” See article here. 

   Fitting that our city, named for Saint Francis of Assisi, has become an epicenter for this brewing immigration battle.

“Book ‘em” image from https://s-media-cache-ak0.pinimg.com/236x/fb/ba/fb/fbbafb27c7f4d53f6e0c5c01e25cb145--catchphrase-hawaii-.jpg

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Miranda Lives Another Day, Booking Exception by the Bay - Williams and Miranda Requirements

 Book ‘em, Danno

   (but Mirandize ‘em, too).

United States v. Alfonzo Williams, 2016 WL 7046754 (9th Cir. Dec. 5, 2016), decision available here.

Players: Decision by Judge Hurwitz, joined by Judge Rawlinson. Dissent by Judge Kleinfeld. 

 Admirable win for NorCal CJA stalwart Mark Goldrosen. 

  Decision affirming suppression order by the Hon. District Judge William Orrick III.  

Facts: Gilton invoked when arrested for murder. Id. *1. Hours later he was booked into a local jail: without Mirandizing Gilton, a sheriff’s deputy asked him whether he was associated with a gang. Id. Gilton’s affirmative(ish) answer was entered onto jail housing forms. Id. Years later, AUSAs tried to introduce Gilton’s response in a RICO trial. Id. District Judge Orrick granted a defense motion to suppress the statement, holding that the likely incriminating nature of answer to this question took it out of the booking exception to Miranda. Id. at *2.  

Issue(s): “The government seeks to introduce Gilton's responses to that questioning in its case-in-chief to establish ‘membership in an enterprise,’ an element of the RICO offense for which he is charged. 18 U.S.C. § 1962(c), (d).” Id. at *1.

Held: “When the deputy asked Gilton about his gang membership, he had already been arrested on charges of murder, conspiracy to commit murder, discharge of a firearm at an occupied motor vehicle, and possession of a firearm by a felon. Questions about Gilton’s gang affiliation were thus reasonably likely to elicit an incriminating response, even if the federal RICO charges had not yet been filed.” Id. at *3. 

  “[W]e hold only that when a defendant charged with murder invokes his Miranda rights, the government may not in its case-in-chief admit evidence of the prisoner’s unadmonished responses to questions about his gang affiliation.” Id. at *5.

Of Note: The jail intake deputy, the government argued, had no idea that this “gang” question was going to be important to a later federal RICO prosecution. 

  Doesn’t matter, explains the Ninth – this is an objective inquiry, not subjective.  “The government's assertion that such questions are posed routinely, and that the deputy asked the questions for a non-investigatory purpose, does not alter our conclusion. ‘The test is an objective one, however, and thus the subjective intent of the police, while relevant, is not conclusive.” . . . And, the objective inquiry is simple: Under the circumstances, are questions about gang affiliation reasonably likely to produce an incriminating response? In a case involving Medicare fraud, they are not. But when murder is the charge, the questions—even if asked for administrative purposes—are reasonably likely to elicit incriminating information.” Id. at *4.

How to Use: Great outcome in a hotly-contested San Francico case. Beware, however, of the pains Judge Hurwitz takes to limit this holding. Id. at *5 (discussing what the Court “do[es] not hold].” Jail staff can ask about gang affiliation, without Mirandizing inmates – the answer just can’t be used in a murder case where gang affiliation is in play. Id. 

  Note, however, the logical extensions of this holding: the Court rattles off a laundry list of the nasty ramifications of gang affiliation in federal court. Id. at *3 (a list worth a clip into your research files). In any of those scenarios, where “[g]ang membership . . . expose[s] a defendant to federal criminal liability,” the Williams’ Miranda holding on gang questioning at booking should apply.

                                               

For Further Reading: You lost in the fog of the layers of Miranda exceptions? You’re in good company: the circuits are split on how to tackle this question of the “booking” exception to Miranda’s limits. For an interesting discussion of the split, and the subjective / objective debate over booking interrogations, see George C. Thomas III, Lost in the Fog of Miranda, 64 HASTINGS L.J. 1501 (2013), available here. 

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Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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