United States v. Everett

40 F. Supp. 2d 539, 1999 U.S. Dist. LEXIS 2466, 1999 WL 117650
CourtDistrict Court, D. Vermont
DecidedJanuary 28, 1999
DocketNo. 2:98-CR-60-1
StatusPublished

This text of 40 F. Supp. 2d 539 (United States v. Everett) is published on Counsel Stack Legal Research, covering District Court, D. Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Everett, 40 F. Supp. 2d 539, 1999 U.S. Dist. LEXIS 2466, 1999 WL 117650 (D. Vt. 1999).

Opinion

OPINION AND ORDER

SESSIONS, District Judge.

Defendant Damian Everett seeks to exclude introduction of statements made to law enforcement agents at the time of his arrest on May 15, 1998. He also seeks to exclude witnesses who were offered promises of leniency by the government, pursuant to United States v. Singleton, 144 F.3d 1343 (10th Cir.1998), vacated, reh’g granted, 144 F.3d at 1361, rev’d, 165 F.3d 1297, 1298 (10th Cir.1999).

I. MOTION TO SUPPRESS STATEMENTS

On May 15, 1998, law enforcement officers obtained and executed a search warrant issued by Vermont District Court Judge James Crucetti for an apartment at 16 Pitkin Street in Burlington, Vermont. DEA Agent Richard Carter knocked on the apartment door, announcing that law enforcement officers were present to execute a search warrant. After hearing movement in the apartment, the officers broke down the door and entered. Approximately seven officers were present. The officers found two individuals in the living room, at that time identified as Peter Papalardo and Dante Miller. Miller was later identified as Damen Everett. Both subjects were ordered to lie down on the floor and were handcuffed with their hands behind their backs.

After the officers conducted a preliminary search of the residence, they separated Everett and Papalardo. Papalardo was taken into the kitchen and questioned. He exercised his Miranda rights and all questioning ceased.

Within three to five minutes of entry into the apartment Detective Donald Lilja of the Burlington Police Department took Everett into the bedroom. Detective Lilja has been a police officer for the City of Burlington for 15 years, and has been assigned to the DEA Task Force for the past thirty months.

Everett sat on the edge of a bed while being questioned. Lilja began the interview by informing Everett that the officers were executing a search warrant to look for drugs. Lilja then told Everett that he needed to understand his rights. Officer Glynn gave Lilja a standard Miranda card, a copy of which was introduced as Government Exhibit 2. Lilja read the Miranda rights to Everett directly from the card. While the rights were being read, Everett asked Lilja whether he would have to answer every question, to which Lilja responded no. Everett stated that he did understand each of his rights and was willing to be questioned. Everett then signed the acknowledgment and waiver of rights portions of the form. Everett continued to insist that he was Dante Miller and signed the form by using that name. At all times during the reading and waiver of rights, the tone of the conversation was calm and Everett was cooperative.

It is unclear whether Everett was handcuffed when he waived his rights. Lilja had either removed the handcuffs from behind his back and re-handcuffed him with hands in front, or removed them entirely. Eventually, the handcuffs were removed, since Everett specifically asked that the handcuffs be placed on him again before he was taken from the apartment.

Other law enforcement officers witnessed Lilja’s reading of the Miranda rights and Everett’s execution of the waiv[541]*541er. Agent Carter remembers seeing Lilja read from the card and hearing Everett say he understood his rights. Carter also saw Everett sign the card. Detective Charles Cole also observed Lilja read from the Miranda card and heard the defendant express his willingness to speak.

Everett made several incriminating statements to Lilja, including acknowledging that he was a heroin addict. Lilja told Everett Detective John Lewis of the Burlington Police Department would join in the intendew. Everett then indicated he had a criminal record under the name of Damen Everett. When Lewis joined the discussion, they talked about how Everett could cooperate. Lewis then transported Everett to the Burlington Police Station for further interrogation. Prior to leaving the apartment, Everett asked that he be put in handcuffs so that Papalardo would not suspect he was cooperating with police.

Lilja decided to re-advise Everett of his Miranda rights at the Burlington Police Department, primarily because the initial Miranda card had been signed under a false name. Lilja read the Miranda form to Everett, who acknowledged understanding his rights. Unfortunately, the form used by the Burlington Police Department at that time was somewhat ambiguous. Paragraph 7 of the form asked in essence whether the defendant agreed to waive his rights and speak with the officer. However, the answer section is preceded by the question “Do you understand your rights?” When the defendant answered “yes,” it was unclear to the officer whether that meant that Everett understood his rights or whether he also intended to assert his rights. Lewis asked if Everett wanted to speak to them without a lawyer and he responded affirmatively.

Shortly after the warrant was executed, Lilja discovered that he had lost the initial Miranda card that Everett had signed in the apartment. Lilja and other officers conducted a thorough and fruitless search for the card.

At all times, Everett appeared cooperative with police while being interviewed. He affirmatively waived his Miranda rights. He never asked to speak with a lawyer or asserted a wish to remain silent or to stop the questioning.

The Court finds based upon the totality of circumstances that Lilja read the Miranda rights to Everett in the bedroom at 16 Pitkin Street prior to questioning, and that Everett clearly understood and waived those rights. At no time did Everett say or do anything which could in any way be construed as an assertion of his rights to an attorney or to remain silent. His waiver was knowingly and voluntarily made. Consequently, Everett’s motion to suppress statements made to law enforcement officers on May 15, 1998 (paper 21) is DENIED.

II. PROMISES OF LENIENCY UNDER UNITED STATES V. SINGLETON

Everett seeks to exclude any testimony procured in violation of 18 U.S.C. 201(c)(2), including evidence provided by witnesses who received offers of leniency from the Government in return for their cooperation. Everett relies upon a recent opinion from a panel of the Tenth Circuit, United States v. Singleton, 144 F.3d 1343 (10th Cir.1998), vacated, reh’g granted, 144 F.3d at 1361, rev’d, 165 F.3d 1297, 1999 WL 6469 at *1 (10th Cir. Jan.8, 1999). In Singleton, the panel found the Government violated the federal bribery statute by offering a USSG § 5K1.1 motion for downward departure in return for a witness’ cooperation, and ordered suppression of the witness’ testimony. The panel’s opinion was promptly vacated sua sponte by the Tenth Circuit and the case was recently reversed.

The Singleton panel decision has likewise been rejected by the other circuit courts which have addressed the issue. See United States v. Haese,

Related

United States v. Ford
99 U.S. 594 (Supreme Court, 1879)
Nardone v. United States
302 U.S. 379 (Supreme Court, 1937)
Jones v. United States
362 U.S. 257 (Supreme Court, 1960)
Brady v. United States
397 U.S. 742 (Supreme Court, 1970)
Santobello v. New York
404 U.S. 257 (Supreme Court, 1971)
Bordenkircher v. Hayes
434 U.S. 357 (Supreme Court, 1978)
Illinois v. Gates
462 U.S. 213 (Supreme Court, 1983)
Mabry v. Johnson
467 U.S. 504 (Supreme Court, 1984)
United States v. Leon
468 U.S. 897 (Supreme Court, 1984)
Ricketts v. Adamson
483 U.S. 1 (Supreme Court, 1987)
United States v. Barbara Fama
758 F.2d 834 (Second Circuit, 1985)
United States v. David Lawson
999 F.2d 985 (Sixth Circuit, 1993)
United States v. Sonya Evette Singleton
144 F.3d 1343 (Tenth Circuit, 1998)
United States v. Robert Ware, Jr.
161 F.3d 414 (Sixth Circuit, 1998)
United States v. Jack Hutchins Haese
162 F.3d 359 (Fifth Circuit, 1999)
United States v. Miller
116 F.3d 641 (Second Circuit, 1997)

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Bluebook (online)
40 F. Supp. 2d 539, 1999 U.S. Dist. LEXIS 2466, 1999 WL 117650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-everett-vtd-1999.