Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Mailoto

United States District Court, E.D. Washington

May 4, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
KISONA MAILOTO, JR., Defendant.

          ORDER DENYING MOTIONS TO SUPPRESS, DISMISS AND RULINGS AT PRETRIAL CONFERENCE

          THOMAS O. RICE Chief United States District Judge

         BEFORE THE COURT are Defendant's Motion to Suppress Statements Obtained in Violation of Miranda (ECF No. 41), Motion to Suppress Statements Obtained in Violation of Massiah (ECF No. 62), Motion to Dismiss Count 3 based on the Second Amendment (ECF No. 63), and Motions in Limine (ECF Nos. 42, 64). A pretrial conference and evidentiary hearing was held on May 2, 2018. Defendant was present and represented by David Fletcher, J. Stephen Roberts, Jr., and Amy H. Rubin, all from the Federal Defenders of Eastern Washington and Idaho. AUSA Patrick J. Cashman appeared on behalf of the Government. The Court reviewed the motions, responses, all supplemental briefing and the file therein, considered the testimony of the witnesses and exhibits, heard from counsel, and is fully informed. This order supplements and memorializes the Court's oral rulings at the hearing.

         DISCUSSION

         1. Motion to Suppress Statements Re: Miranda (ECF No. 41).

         Defendant claims the statements he made to Officer Boling were the result of custodial interrogation in violation of Miranda. The Court finds the statements Defendant made to Officer Boling were during a consensual encounter not requiring Miranda warnings.

         Task Force Officer Lee Boling was the only witness who testified. Officer Boling's testimony is fully accepted, this Court finds he was fully credible and detailed in his testimony. The Court finds that Officer Boling contacted Defendant's defense attorney on state charges and notified him that he was conducting a federal investigation for federal violations. Defendant's attorney contacted the Defendant, explained that there was a federal investigation and authorized Officer Boling to meet with Defendant. Defendant's attorney expressly denied representing Defendant on the federal investigation.

         Defendant voluntarily agreed to meet Officer Boling in a Safeway grocery store parking lot to sign certain paperwork, verify his signature, be advised of his appeal rights, and be advised of his future restrictions regarding firearms. Officer Boling met with Defendant in a public place, without a show of force, without verbal commands. Washington State Patrol Trooper Pichette was present only to witness Defendant's signature. While Trooper Pichette was in full uniform and a marked car, Officer Boling was in plain clothes and a rental pick-up truck without markings or any display of force or authority. Only because it started to downpour rain, Officer Boling invited Defendant to sit in the passenger seat of his pick-up to conclude the interview. At no time did Defendant seek to leave, request the cessation of questioning, or ask for an attorney. Trooper Pichette went to his own car during this time and any show of force because of his uniform was thereby cancelled, as he was no longer present for the conversation that continued.

         Objectively viewing the encounter demonstrates to this Court that Defendant freely attended the meeting in a public place, was free to leave at any time, his movement was not restrained whatsoever, he was not in custody, and he freely left the meeting after about 40 minutes. The Court emphasizes that only Officer Boling testified and the Court finds him fully credible, so the evidence before the Court is uncontradicted. After examining the totality of circumstances, the Court concludes well beyond a preponderance of the evidence that Defendant was not in custody and thus, no Miranda warnings were required. See United States v. Cazares, 788 F.3d 956, 980-81 (9th Cir. 2015) (test and factors to consider).

         2. Motion to Suppress Statements Re: Massiah (ECF No. 62).

         Defendant claims the statements he made to Officer Boling were obtained in violation of his right to have his counsel present according to Massiah v. United States, 377 U.S. 201, 206 (1964).

         Defendant's Sixth Amendment right to counsel is offense-specific. See McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). That is, he had a right to counsel only on the offenses for which he had been charged, and on any other offenses that constituted the “same offense” under the Blockburger test. See Texas v. Cobb, 532 U.S. 162, 167-73 (2001); Blockburger v. United States, 284 U.S. 299, 304 (1932). Defendant's attorney on the state charges affirmatively represented that he did not represent Defendant on the federal investigation. The federal charges do not constitute the same offense under Blockburger. Therefore, there has been no Sixth Amendment Massiah violation. See United States v. Danielson, 325 F.3d 1054, 1066 (9th Cir. 2003).

         3. Motion to Dismiss Count 3 based on the Second Amendment (ECF No. 63).

         Defendant seeks to dismiss count 3 of the Superseding Indictment charging a violation of 18 U.S.C. § 922(g)(8). 18 U.S.C. § 922(g)(8) prohibits any person who is subject to a court order restraining them from “harassing, stalking, or threatening an intimate partner…” from possessing a firearm while the order is in place.

         [W]hile the Second Amendment protects an individual right to keep and bear arms, the scope of that right is not unlimited. United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013) (citing District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008)). The Ninth Circuit joined the Third, Fourth, Seventh, Tenth, and D.C. Circuits in holding that [a] two-step framework . . . applies to Second Amendment challenges to various firearms restrictions post-Heller. Chovan, 735 F.3d at 1137. Under this test, “[t]he first question is “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee. . . . If the challenged regulation burdens conduct that was within the scope of the Second Amendment as historically understood, then ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.