Bank Robbery Affidavit of Arrest - DOC

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					IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

USCA No. 99-301042

USDC No. CR-98-398-NA

OREGON (Portland)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

JOHNATHAN COLEMAN,

Defendant-Appellant.

______________________________

APPELLANT'S OPENING BRIEF

______________________________

APPEAL FROM THE JUDGMENT OF THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

______________________________

HONORABLE ROBERT E. JONES, DISTRICT JUDGE

______________________________

William S. LaBahn, Esq.
Law Offices of William S. LaBahn, P.C.
132 East Broadway, Suite 331
Eugene, Oregon 97401
(541) 344-7004
Attorney for Defendant

                        I. ISSUES PRESENTED FOR REVIEW

1. Should defendant's confession be suppressed?

2. Should defendant's conviction for Armed Bank Robbery and the enhanced sentence be
reversed and vacated?

                            II. STATEMENT OF THE CASE
A. Nature of the Case.

This case presents the application of Edwards v. Arizona, 451 U.S. 477 (1981). Defendant
was arrested as a suspect in a robbery of a credit union. While in custody, he invoked his
right to counsel, stating that "I want a lawyer."

Despite this unambiguous invocation of rights, FBI agents continued to interrogate him.
No lawyer was provided. Although defendant was released the following day, over the
course of the next 4 days FBI agents made repeated, uninvited visits to his apartment to
elicit uncounselled statements regarding the robbery. Defendant also challenges the
sentencing enhancements under which he was sentenced because his codefendants' use
of weapons and infliction of injury were unforeseeable.

Finally, the government breached the jury-trial waiver agreement by failing to recommend
a low-end sentence as promised.

After the district court denied defendant's motion to suppress statements (CR# 32), he
agreed to a stipulated facts bench trial (CR# 80 and CR# 81;ER 12 and ER 18), upon
which he was found guilty of the crime of Armed Bank Robbery, in violation of 18 U.S.C. §
2113(a) and (d) under Count 1 of the Second Superseding Indictment. This appeal seeks
reversal of the court's denial of defendant's motion and his subsequent conviction and
sentence.

"CR" refers to the clerk's record; "RT" refers to the reporter's transcript of the December 2,
1998 suppression hearing; "JRT" refers to the reporter's transcript of the December 16-18,
1998 trial in United States v. Ernest Johnson, Jr. (currently on appeal before this court
under USCA #99-30086); "T" refers to the January 4, 1999 bench trial; "ER" refers to the
Excerpt of Record.

B. Timeliness of Appeal and Jurisdiction.

The judgment (CR# 103 and CR# 108); ER 4) was entered on March 31, 1999. Defendant
timely filed his notice of appeal (CR#105,ER 1) on April 8, 1999. This court has jurisdiction
pursuant to 28 U.S.C. §1291.

C. Custody Status.

Defendant is presently in custody at FCI Lompoc, Lompoc, California where he is serving
a sentence of 70 months.

D. Course of Proceedings

A complaint (CR#1) was filed on August 21, 1998, charging Ernest Johnson, Jr. and
Michael Lee Owens with the crime of bank robbery, 18 U.S.C. § 2113(a)(d) and (2).
Owens was later released without being indicted. Tr. 19. On August 26, 1998 an
indictment (CR# 6) was filed naming Messrs. Johnson, Michael Dennis Ferguson and Mr.
Coleman as codefendants. Defendant filed a motion to suppress statements and fruits
thereof (CR# 32) on November 4, 1998, along with supporting affidavit (CR#33) and
memorandum (CR# 34).

On November 25, 1998, Ferguson pleaded guilty to one count of Armed Bank Robbery
and agreed to testify against the other defendants. He was sentenced to 140 months'
imprisonment.

A suppression hearing was conducted before Judge Jones on December 2, 1998 at the
conclusion of which he denied defendant's motion to suppress statements (CR# 51; ER
21-3).
A second superseding indictment (CR#58; ER 10) was filed December 15, 1998.

Johnson was tried before a jury on December 16-18, 1998. Ferguson testified as a
government witness. Johnson was found guilty on all 3 counts of the second superseding
indictment and was sentenced to 300 months' imprisonment under Count 1, 60 months
under Count 2, consecutive to the sentence under Count 1, and 300 months under Count
3, concurrent with the sentence under Count 1.

Defendant Coleman waived a jury trial and agreed to a stipulated facts trial based on the
evidence and testimony at Johnson's trial (CR# 80 and 81; ER 12 and ER 18). The bench
trial was conducted on January 4, 1999. He was found guilty under Count 1 (T.29; ER 32).
He was sentenced on March 31, 1999 and the district court issued its Findings of Fact
order (CR# 104; ER 7) and judgment (CR#103 and CR# 108; ER 4). Defendant timely
filed a notice of appeal (CR#105; ER 1).

                                  III. Statement of Facts

The following facts are based on the government's response (CR# 41) to defendant's
suppression motion (CR# 33), the testimony at the suppression hearing (CR#116;)("RT."),
defendant Johnson's trial, and the January 4, 1999 bench trial in defendant's case.
Johnson's appeal is before this court under USCA #99-30086.

On August 19, 1998 employees of the Pacific Northwest Ironworkers Federal Credit Union
("Credit Union") in Portland reported they had been robbed at gunpoint. According to initial
reports either 2 or 3 individuals were reported as robbers, 2 of them being armed. During
the robbery Johnson and Ferguson brandished firearms and took cash and checks. An
electronic tracking device was hidden among the 20's they took from Credit Union. As a
result the police were able to locate Johnson, who was arrested in a phone booth near
Coleman's apartment.

THE TRIALS

Johnson's Trial. At Johnson's trial none of the employees were able to positively identify
defendant as one of the robbers. JRT. 121-2; 133-4; 136; 144-5; 156-7; 247-8; 253-5; 259;
272-3; and 283. Ferguson provided the only testimony identifying Coleman as one of the
robbers. JRT.162. Ferguson also testified that Coleman did not carry a firearm. JRT.185.

Defendant's Bench Trial. At defendant's bench trial Ferguson was the only witness. He
testified that Coleman robbed the credit union with him. T.8. According to Ferguson,
Coleman was sent into the credit union before it was robbed to scout it, while he and
Johnson remained outside in the Camaro. T.9-10.

Ferguson testified that he was armed but he also testified that Coleman was not. T.11 (ER
25); T.23 (ER 29). Although the three men had discussed the robbery Ferguson testified
that he never said anything about using a gun, or about planning to hit anyone. T.23 (ER
29-30). In fact, Ferguson testified that he never planned to hit anyone during the robbery
T.24 (ER 30).

When Ferguson pulled out his gun, Coleman "freaked out" according to Ferguson and he
"ran off and left [Ferguson and Johnson] in the building." T.12 (ER 26); T.24 (ER 30-1).
Apparently, Coleman ran out, jumped in the getaway car and pulled up to the front of the
credit union, where one of the witnesses was able to note at least part of the license plate.

Coleman "freaked out" and ran out of the building and Ferguson didn't see defendant in
the credit union again at "no time." T.13 (ER 27). Defendant did not take money from the
credit union. T.13-14 (ER 27-8). Ferguson was also unable to identify defendant as having
taken any money from people in the credit union that day. T.14 (ER 27).
Coleman had already left the building when Ferguson used the gun and "couldn't have
been aware of me using the gun." T.24 (ER 30). Coleman was not even aware of
Ferguson's use of the gun when the men got into the car and drove away because
Ferguson didn't say anything about using a gun. T.25 (ER 31).

The District Court's Findings. At the conclusion of the bench trial Judge Jones found
defendant guilty of armed bank robbery under Count 1 of the second superseding
indictment, specifically finding that defendant participated in the planning, execution and
"aftermath' of the crime. T.29; ER 32.

THE INTERROGATIONS

1. The First Interrogation (August 19). Defendant was arrested on August 19 and
transported to the Portland Police Bureau, where he was booked and held on robbery
charges. RT.4; RT.9. There he was interrogated by FBI Special Agents McPherson and
King, RT.4, in a holding cell. RT.10. Defendant was handcuffed. Id. McPherson
acknowledged that defendant was "in custody" at the time, and that he was a suspect. Id.

McPherson advised defendant of his Miranda rights and defendant signed a standard form
acknowledging receipt. RT.5-6. According to McPherson, after defendant was advised of
his Miranda rights he told the FBI that earlier that day he had been picked up at his
apartment by 2 men in a red Camaro or Firebird. RT.6. According to Mcpherson,
defendant didn't know one of the men at all and thought the other's name was "Mike." Id.

Defendant told the agents that he and the other 2 men left his apartment to buy heroin and
that they returned to his apartment at about 12:15 pm after shooting up. RT.7. Coleman
was "tired and slightly listless" but otherwise "speaking clearly, and we were engaging in
an understandable conversation." Id.

The agents then showed defendant photos of Ferguson along with some mail with
Ferguson's name on it recovered from "a Firebird." RT.8. At this point, Coleman said "I
want a lawyer." RT. 13. (emphasis added) Rather than immediately breaking off the
interrogation, however, McPherson testified that "[w]e asked why it was that he wanted a
lawyer at that point, after he been engaging us in conversation and had just recently
signed the rights form." RT.8-9. McPherson knew that once person requests a lawyer the
interview must cease. Id. He continued questioning Coleman because he "found it
interesting and odd that he would invoke, at that point, after he had just been advised of
his rights. So, the purpose was I was interested in what the answer was." RT.14.

McPherson "didn't think about whether I had the right or not [to question him about why he
wanted a lawyer]. I was just curious as to why, at that point, he would invoke his rights. I
understood that I couldn't ask him any further questions about the robbery that day, and
like it's indicated in the report, the interview ceased at that point." RT.14.

Defendant denied knowing anything about the bank robbery and said that he wasn't a
snitch. RT.9.

Defendant was released the following day when the state declined to prosecute. RT.9;
RT.16.

McPherson had no doubt that Coleman had invoked his right to counsel. Further, Agent
McPherson told all the other agents involved in the case that defendant had asked for a
lawyer. RT.14-15.

2. The Second Interrogation (August 22). Two days after defendant was released, on
August 22, FBI agents Frazier and Howell went to defendant's apartment to interrogate
him. RT.18. Frazier had learned of defendant's release on August 20th and the agents
wanted to get information about defendant's contacts with the 2 men already charged with
the bank robbery, Ferguson and Johnson. Id.

The agents went to defendant's apartment and, after asking if they could talk to him,
proceeded to question him about the robbery without first advising him of his rights.
RT.19-20. Frazier didn't advise defendant of his rights because: (1) he wasn't a suspect;
(2) he was not in custody; and (3) they didn't intend to arrest him at the time of the
interview. RT.20.

Frazier said Coleman gave them a detailed statement regarding his contacts with
Ferguson and Johnson on August 19th, including all their whereabouts up to when they
left him at his apartment at about 3:00 PM. RT.20-1. Coleman told the agents that he next
saw Ferguson and Johnson at about 5:00 PM. Id. The robbery took place at about 4:20
PM.

Coleman told the agents that when Ferguson and Johnson returned, Ferguson put a trash
bag in front of his apartment and asked Coleman to put it in a nearby dumpster. RT. 23.
Coleman also said he saw Johnson at a telephone booth in front of the apartment
complex and that he saw Johnson being arrested by the police at the booth. Id. Ferguson
in the meantime had disappeared. Id. Defendant again denied being involved in the
robbery. He also told the FBI that he was heavily addicted to heroin, having been an
addict for the past 12-13 years, on a daily basis. Id. Coleman told the agents that he had
had used heroin earlier that day. Id. Coleman told the agents that he intended to beat his
habit by going 'cold turkey' on his own by sleeping for the next three days. RT.22.

3. The Third Interrogation (August 24). The FBI returned to defendant's apartment a third
time, on August 24th, to show him some clothing recovered from the dumpster to see if he
could identify it as having been worn by Johnson or Ferguson. RT.24.

Frazier knocked on the door but got no answer. He went to a window opening which was
covered by some sheets. He then pulled the sheets aside and saw defendant lying in bed.
RT.24-5. No one gave him permission to do so. RT.53-4.

Although Frazier described Coleman as being "half-asleep" in reality defendant was more
likely nodding off under the influence of narcotics or the effects of withdrawal. RT.25.
Frazier asked defendant about the clothing without advising him of his rights.

Defendant again denied involvement in the bank robbery. He did, however, tell Frazier
that he was 2 days into withdrawal. RT.25-6. He also told the agent that he was sick to his
stomach; Frazier described Coleman as "very sleepy." RT.26. Frazier said Coleman
seemed coherent, but also described him as "more lethargic" than on the 22nd. Id.

In fact, the agent said he "more or less had to wake him up to talk to him while he was
lying down in bed." RT.27.

4. The Fourth Interrogation (August 25). Still unsuccessful in eliciting a confession from
Coleman, agents Frazier and Howell returned to his apartment the following day, August
25th. TR.27. This time, however, the FBI definitely considered him a suspect based on
Ferguson's confession and they went to Coleman's apartment to get him to talk about his
involvement in the robbery. Id.; RT.55-6.

The agents had consulted an AUSA before going to Coleman's apartment. RT.56-7.
Frazier believed that probable cause existed at that time to arrest defendant even though
he also testified that the AUSA in question advised him not to arrest Coleman unless
Frazier obtained "admissions" from him. RT.57.
After knocking at the door and being let in, the agents advised him of his rights. Although
Frazier testified that defendant said he understood his rights, this time, unlike the first
interrogation, the FBI didn't ask him to sign the standard rights form. RT.28.

The agents began their interrogation by telling Coleman that Ferguson had turned himself
in and that he had told them about the robbery and that they wanted to talk to him about
"Ferguson's statements about planning and execution of the robbery." RT.29.

The agents described in "detail" what Ferguson had told them, told Coleman that he was a
suspect, and that they wanted to talk to him about it. RT.30. This discussion came before
the FBI gave defendant his Miranda rights, however. RT.29-30.

At this point defendant made incriminating statements regarding his involvement in the
bank robbery. RT.30-1.

However, before he did, Frazier told Coleman that "his position was a little more favorable
than Mr. Johnson's or Mr. Ferguson's, because, as we understood it, from Mr. Ferguson's
statements, Mr. Coleman did not carry a gun into the union hall. And he also, as far as we
knew, did not enter the credit union itself, which could benefit him, I told him, come
sentencing or charging time, as far as being charged with the credit union robbery." Id.
(emphasis added) In response to these comments, defendant then implicated himself in
the robbery but denied hitting anyone or carrying a gun. RT.32-3.

Frazier described Coleman as "much less lethargic" and that "he seemed coherent."
RT.34.

Defendant was told he was going to be arrested. Responding to his inquiry, the FBI
promised him that his daughter could be left with her grandmother, and that he would be
allowed to take his medication with him. RT.35.

Defendant was taken into "custody" and transported to jail. However, as he was being
taken into the jail he lost consciousness, went into convulsions, and had to be taken by
ambulance to the hospital. RT. 36. The agents remained at the hospital for 4 or 5 hours
while Coleman was treated. He was kept overnight for observation and booked the
following day. RT.37.

The record is confusing at this point because Frazier also testified that at about 4:45 PM
on August 25th, before Coleman was being transported to jail, he again invoked his right
to a lawyer. See RT.40. Frazier also testified that 2 days after defendant's initial arrest he
was in custody but was interrogated without being advised of his rights. See RT.38-39.
However, Frazier also said that while Coleman was in the hospital they didn't interrogate
him (RT.41) and that it was while they were escorting him in the courthouse elevator 2
days later that the defendant initiated a conversation about a possible deal. Id.

After being arrested on August 19th, defendant was taken to the credit union for a show-
up identification and displayed to credit union employees in handcuffs. RT.42. None of the
witnesses identified Coleman as one of the robbers. RT.43; RT.50-1.

Frazier also knew that agents McPherson and King had interviewed defendant in jail on
the 19th because he was there interviewing Johnson (RT.43). Frazier was told that
defendant had asked for a lawyer. RT.44.

Frazier admitted that defendant did not contact the FBI after his release August 20th to
say that that he wanted to talk with them. RT.48. He also admitted that when the FBI went
to defendant's apartment on August 22 Coleman had not initiated the contact. Id.

When they again went to Coleman's apartment on the 24th he had not initiated the
contact. RT.47. He also knew that defendant had previously asked for a lawyer. Id.
5. Defendant's testimony about the interrogations. Defendant testified at the suppression
hearing. RT.59-85.

He testified that he was arrested on August 19, 1998 at his apartment. RT.59-62. After
being taken to the credit union, where no one identified him, he was taken to the jail and
interrogated by FBI agents, including agent McPherson. RT.63. He told McPherson that
he wanted a lawyer. Id. One of the agents asked him why he wanted a lawyer and he
answered because he didn't know anything about a robbery, robbers, or a gun. RT.63-4.
One of the FBI stood up and said "[o]h, yes you do, boy." RT.64. Defendant then told them
that "well, I really ain't got nothing to say to you now." Id. They then stopped interrogating
him. Id.

On August 22 the FBI came to his apartment without invitation and interrogated him.
RT.65-6. The FBI questioned him about his involvement with Johnson and the bank
robbery. RT.67. He didn't tell the agents to leave because he thought he was getting an
attorney and because they were the FBI and "I couldn't tell them to leave." Id.

He also thought they were there because they had already spoken to his lawyer. RT.68.
The FBI did not advise him of his rights during the August 22 contact. Id.

On the 24th the same agents again returned uninvited to his apartment, RT.68-9. On the
25th, the day he was rearrested, he was again questioned about the robbery but before he
was read his rights. Id. They also told him that if he didn't go inside the credit union itself,
and if he didn't have a weapon, they would tell the prosecutor to either give him no time or
just a little time. RT.69-70. Defendant testified that these promises were made before he
was read his rights that day. Id.

He described the withdrawal symptoms he undergoing during the events of August 25th,
including nausea and loss of consciousness. RT.71. He had taken 800 mgs. of Doxepine
before the FBI arrived and was feeling "sleepy." RT.71-2. These symptoms got worse as
the contact continued. Id. The only memory he has of the following events that day was
being in a car and seeing his daughter's face at the car window but then nothing until he
awoke in the hospital on August 26th. RT.72-3.

During the August 24 interrogation the FBI told him that 'now is the time to tell if he knew
anything and that they can tell the prosecutor to give him no or little time.' RT.83-4.

6. The district court's findings regarding the statements (ER 21-3). At the conclusion of the
suppression hearing Judge Jones denied the motion. Although no historical or factual
findings were made, Judge Jones ruled that when the FBI went to defendant's apartment
on August 22 and 24 they were not intending to elicit a confession or incriminating
statements from him. RT. 86; ER 22.

The district court also concluded that defendant's statement on August 22 or 24 were not
"admissions" but merely "self-serving statements of nonculpability." RT. 85; ER 21.

He also found that on the 25th defendant was questioned as a suspect but that he was
fully advised of his rights which he understood and knowingly waived. ER 22. Accordingly,
the court denied suppression of defendant's August 25th statements.Id.

Judge Jones also found that defendant had made an unequivocal invocation of his rights
on August 19 (RT.87; ER 23) but that "there is no invocation after being fully advised of
his rights, on the 25th, and there was no contamination in the interim." Id.

                               IV. STANDARDS OF REVIEW

1. The district court's determination that a defendant's statements to law enforcement
officers was involuntary is reviewed de novo. United States v. Leon Guerrerra, 847 F.2d
1363, 1365 (9th Cir. 1988)(voluntariness of confession). Voluntariness must be
established by the government by the preponderance of the evidence. Lego v. Twomey,
404 U.S. 477, 489 (1972). Voluntariness of Miranda waiver is subject to de novo review as
well. Collazo v. Estelle, 940 F.2d 411, 415 (9th Cir. 1991)(en banc), cert. denied, 502 U.S.
1031 (1992).

2. A suspect who requests counsel during a custodial interrogation is not subject to further
interrogation until counsel is provided. Edwards v. Arizona, 451 U.S. 477 , reh. denied,
452 U.S. 972 (1981).

3. Waiver of the right to counsel must be voluntary, knowing and intelligent. Miranda v.
Arizona, 384 U.S. 426, 475-77 (1966); Johnson v. Zerbst, 304 U.S. 458, 464 (1932).
Review of the district court's determination that a defendant's Miranda waiver was
knowing and intelligent is reviewed for clear error. Collazo v. Estelle, 940 F.2d at 416.

A determination of waiver depends on the totality of circumstances, including the
background, experience and conduct of the accused. United States v. Rodriquez-
Gastelum, 569 F.2d 482, 488 (9th Cir.), cert. denied, 436 U.S. 919 (1978).

An inculpatory statement is voluntary only when it is the product of a rational intellect and
a free will. Blackburn v. Alabama, 361 U.S. 199, 208 (1960); United States v. Crespo de
Llano, 830 F.2d 1532, 1541-2 (9th Cir. 1987).

The test is whether, considering the totality of circumstances, the government obtained
the statement by physical or psychological coercion or by improper inducement so that the
suspect's will was overborne. Haynes v. Washington, 373 U.S. 503, 513-14 (1963); United
States v. Pinion, 800 F.2d 976, 980 (9th Cir.1986), cert. denied, 107 S.Ct. 1580 (1987).
See also United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir. 1981).

A statement is involuntary if it is "extracted by any sort of threats or violence, [or] obtained
by any direct or implied promises, however slight, [or] by the exercise of any improper
influence." Hutto v. Ross, 429 U.S. 28, 30 (1976), quoting Bram v. United States, 168 U.S.
532, 542-3 (1897).

While confessions extracted through physical coercion are per se involuntary, Stein v.
New York, 346 U.S. 156, 182 (1953), there is no per se rule regarding psychological
coercion. Haynes v. Washington, 373 U.S. at 515.

4. Federal courts should indulge every reasonable presumption against waiver of
fundamental rights. Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937).

5. The district court's interpretation and application of the Sentencing Guidelines are
reviewed de novo. United States v. Buenrostro-Torres, 24 F.3d 1173, 1174 (9th Cir.
1994). Factual findings in the sentencing phase are reviewed for clear error. Id.

                                       V. ARGUMENT

1. Once defendant asked for a lawyer any subsequent interrogation was precluded.

Defendant was "in custody" on August 19, 1998. It is also clear that defendant made an
unequivocal invocation of his rights, telling McPherson, "I want a lawyer."

"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 ... If the individual states that he
wants an attorney, the interrogation must cease until an attorney is present." Miranda v.
Arizona, 384 U.S. 436, 473-4 (1996). Fifteen years later, in Edwards v. Arizona, 451 U.S.
477 (1981), the Supreme Court ruled that once Edwards asked for a lawyer, even after he
had been advised of his Miranda rights, his invocation precluded any further police-
initiated questioning:

[W]hen an accused has invoked his right to have counsel present during custodial
interrogation, a valid waiver of that right cannot be established by showing only that he
responded to further police-initiated custodial interrogation even if he has been advised of
his rights... [A]n accused,... having expressed his desire to deal with the police only
through counsel, 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 484-5.

Thirteen years after Edwards was decided, the Supreme Court reemphasized that the
decision created a bright-line rule:

If the suspect effectively waives his right to counsel after receiving Miranda warnings, law
enforcement officers are free to question him. [citation omitted] But if a suspect requests
counsel at any time during the interview, he is not subject to further questioning until a
lawyer has been made available or the suspect himself reinitiates conversation.[citation
omitted] This "second layer of prophylaxis for the Miranda right to counsel"[citation
omitted] is "designed to prevent police from badgering a defendant into waiving his
previously asserted Miranda rights.[citation omitted]" Davis v. United States, 512 U.S. 452,
458 (1994).

On August 19th defendant was in custody. He clearly asked for a lawyer, a request the
FBI clearly understood, and that the agent conducting the interrogation, McPherson,
conveyed to all other agents involved in the case. RT.14-15.

Nonetheless, McPherson continued interrogating the defendant contrary to Edwards,
asking defendant why he wanted a lawyer. Defendant maintains that McPherson's tactic
was obviously designed to deter defendant from consulting with a lawyer, and to elicit
incriminating statements from defendant. No lawyer was made available to Coleman after
he told the FBI agents that he wanted a lawyer.

McPherson's claim that he merely "curious" about why defendant wanted to talk to a
lawyer merits little credence, and would still violate the Edwards rule. At this point, the
authorities were required to "scrupulously honor" defendant's right to cut off questioning,
United States v. Lopez-Diaz, 630 F.2d 661, 664 (9th Cir.1980), which they failed to do. All
the agents involved the case knew defendant had invoked his right. RT.14-15.

Defendant did not initiate any of the subsequent contacts on August 22, 24 and 25. The
FBI contacted defendant 3 more times after he asked for a lawyer. During each of these
contacts defendant was also obviously going through withdrawal. Indeed, on the 24th he
was so "sleepy" and "lethargic" that agent Frazier had to "more or less wake him up" to
get Coleman to talk to him. RT.27. On August 25, during the interview, defendant lost
consciousness and had to be transported to the hospital.

The testimony adduced at the December 2, 1998 suppression hearing demonstrates that
the FBI went to his apartment to elicit statements about his involvement in the credit union
robbery. At one point they even brought clothing and photos for him to identify
(RT.24).The only objectively reasonable explanation for this conduct is that the agents
were trying to elicit defendant's confession. Cf. Rhode Island v. Innis, 446 U.S. 291, 301
(1980).

Defendant maintains that these separate but continuous contacts amount to a single
course of conduct calculated to elicit defendant's admission regarding his participation in
the credit union robbery in violation of Edwards. See also Minnick v. Mississippi, 498 U.S.
146, 153 (1990) (every confession given to police outside the presence of counsel, once
counsel has been requested, may not be introduced at trial unless the defendant himself
initiated the conversation).

The Supreme Court has stated that Edwards established a bright-line rule forbidding
further interrogation once the defendant invokes his rights:

[A] fair reading of Edwards and subsequent cases demonstrates that we have interpreted
the rule to bar police-initiated interrogation unless the accused has counsel with him at the
time of questioning. Minnick, 498 U.S. at 153.

When the accused requests a lawyer - which this defendant did on August 19 -
interrogation must cease, and officers may not reinitiate interrogation without counsel
present, whether or not the accused has actually consulted with an attorney. Id.

Edwards established "'clear and unequivocal guidelines' for the law enforcement
profession." Minnick, 498 U.S. at 151, citing Arizona v. Roberson, 486 U.S. 675, 682
(1988). This case presents a textbook violation of Edwards.

The Edwards rule is meant to prevent exactly the kind of badgering that occurred in the
instant case. Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983)(the Edwards rule is
intended "to protect an accused in police custody from being badgered by police officers").
Although defendant was not "in custody" on August 22, 24 that factor should not insulate
the agents' conduct in this case. This is because their conduct demonstrates an
intentional, repeated, unbroken effort to get defendant to confess, at a time when he was
obviously going through, and subject to, the debilitating effects of heroin withdrawal. But
see United States v. Skinner, 667 F.2d 1306 (9th Cir. 1982), cert. denied, 463 U.S. 1229
(1983).

Skinner holds that the Edwards rule does not apply where the suspect is not in continuous
custody and there is a break in custody between the first and second interviews.
Defendant maintains there are significant differences between the facts in Skinner and this
case.

Skinner is distinguishable on its facts. Skinner was a suspect in a murder and was
questioned about it on July 9 and twice on July 10. 667 F.2d at 1308. He was not in
custody on July 9. Id. On July 10 before the first interview he was read his Miranda rights
and he signed a waiver form. Id.

Before the second July 10 interview, Skinner was asked to accompany the agents to the
police station for further interrogation. He signed a statement that he went voluntarily. Id.
At the station he was again advised of his rights and he signed another waiver. Id. After
about one hour and forty-five minutes, Skinner said that he wanted to speak with an
attorney and he was allowed to leave the station. Id. The following day, July 11, Skinner
was arrested. In a car on the way to the station Skinner was again advised of his rights
and he said that he understood them and agreed to answer questions. He confessed
immediately thereafter. Id.

A panel of this court held that Edwards did not apply because Skinner "was not in
continuous custody." 667 F.2d at 1309. The opinion also emphasizes that Skinner went
voluntarily to the station on July 10. Id. The opinion held that Skinner's Miranda waiver
was valid based on his experience, fluency in English, and because the "agents did not
pressure him to talk or to reconsider his right to counsel." Id., citing United States v.
Rodriquez- Gastelum, 569 F.2d at 488. Furthermore, Skinner's signed waiver form,
immediately after he confessed, was "additional strong evidence of a valid waiver." 667
F.2d at 1309, citing North Carolina v. Butler, 441 U.S. 369, 373 91979).

In Mr. Coleman's case, however, he was in custody and remained so after he asked for a
lawyer. Unlike in Skinner, the agents continued to interrogate him after he asked for a
lawyer. The fact that he was no longer "in custody" when the agents returned uninvited on
August 22, 24 and 25 is irrelevant since he, unlike Skinner, didn't initiate the subsequent
contacts.

Finally, even if the break in custody bars application of Edwards his confession was
involuntary because the FBI continued to pressure him to talk and to reconsider his
assertion of the right to counsel, as well as because of the effects of the agents' promises
of leniency and the heroin withdrawal. Defendant maintains that this was such a flagrant
violation of Edwards that the products of the subsequent interrogations should be
precluded to deter law enforcement from violating the rule in the future.

Miranda waiver. Although the government may argue that defendant waived his Miranda
rights that argument should be rejected. First, even if he was advised of his Miranda rights
after August 19th, it is well-established that the subsequent advisement does not support
waiver once the accused requests counsel. Edwards v. Arizona, 451 U.S. at 482. See also
Oregon v. Bradshaw, 462 U.S. at 1045-6.

Moreover, the government has the "heavy burden" of establishing any waiver:

If the interrogation continues without the presence of any attorney and a statement is
taken, a heavy burden rests on the government to demonstrate that the defendant
knowingly and intelligently waived his privilege against self-incrimination and his right to
retained or appointed counsel. Miranda, 384 U.S. at 475.

To establish waiver, the government must meet the following requirements:

First, the relinquishment of the right must have been voluntary in the sense that it was the
product of a free and deliberate choice rather than intimidation, coercion or deception.
Second, the waiver must have been made with a full awareness, both of the nature of the
right to be abandoned and consequences of the decision to abandon it. Moran v. Burbine,
475 U.S. 412, 421 (1986).

Any purported waiver must be judged on a case-by-case basis in light of the accused's
background, experience and circumstances. Edwards, 451 U.S. at 482; North Carolina v.
Butler, 441 U.S. at 374-5. The government had the burden of demonstrating a valid waiver
by the preponderance of the evidence. Lego v. Twomey, supra. The government failed to
meet its burden regarding any claim of waiver because of the substantial and
uncontradicted evidence that defendant was suffering the serious effects of heroin
withdrawal and the effect of the agents' promises to go to bat for him with the prosecution.
Together these factors rendered any purported waiver involuntary.

See also Desire v. Attorney General of California, 969 F.2d 802, 805 (9th Cir. 1992), citing
Smith v. Illinois, 469 U.S. 91, 93, 98 (1984) stating that it is irrelevant that the defendant's
subsequent confession was voluntary since in that context voluntariness would only be an
issue after it was established that the defendant asserted his rights and then initiated
further conversation with the police. In Mr. Coleman's case he did not initiate any of the
contacts after he asked for a lawyer on August 19. Accordingly, his unhonored request for
a lawyer vitiates his subsequent decision to talk without counsel's presence.

2. Defendant's August 22, 24 and 25 statements were involuntary.

The government must establish that defendant waived his Miranda rights, and that any
confession was voluntary.

A statement is involuntary if it is "extracted by any sort of threats or violence, [or] obtained
by any direct or implied promises, however slight, [or] by the exercise of any improper
influence." Hutto v. Ross, 429 U.S. 28, 30 (1976), quoting Bram v. United States, 168 U.S.
532, 542-3 (1897). See also United States v. Bautista-Avila, 6 F.3d 1360, 1364 (9th Cir.
1993).
Heroin Withdrawal.

At the time defendant was contacted on August 22, he was beginning to go through
withdrawal. On August 24, agent Frazier had to wake him up to get him to talk: the
defendant was so "out of it" that the agent practically had to put the pen in Coleman's
hand and sign a confession for him. On August 25 the defendant's condition was no better
and appears to have deteriorated while the FBI agents were questioning him. As pointed
out above, he actually lost consciousness during the interrogation and had t be
transported to the hospital.

It is axiomatic that a statement may not be admitted if because of mental illness, drugs, or
intoxication, the statement was not the product of a rational intellect and a free will.
Gladden v. Unsworth, 396 F.2d 373, 380-81 (9th Cir. 1968).

Defendant was unable to make a knowing and intelligent waiver, and any statements were
involuntary, because of his deteriorating condition. He was an easy mark for the agents in
the case. Frazier himself stated that he had to practically wake the defendant to get him to
talk on the 24th. Defendant had taken a large dose of medication on August 25th, the day
he was rearrested, and there is no doubt that he was in very bad shape that day.

Although Frazier described defendant as less "lethargic" and more "coherent" on August
25th than before, that description should be compared with other cases when determining
how defendant's condition affected the voluntariness issue.

For example, in United States v. Lewis, 833 F.2d 1380, 1384-5 (9th Cir. 1987) statements
taken several hours after administration of general anesthetic were held voluntary based
on federal agent's testimony that the suspect said she was feeling "o.k.", and other
evidence showed that the defendant was alert, responsive and able to recall past events
accurately. In contrast, on August 22, 24 and 25 Mr. Coleman was hardly "alert" or
"responsive" since Frazier had to literally wake him up to get him to talk. Although the
agent described Coleman on August 25th as "less lethargic" that does not equate with
being "alert" or "responsive."

In United States v. Martin, 781 F.2d 671, 674 (9th Cir. 1985) defendant's statements made
while in a hospital and in pain and under the effects of Demerol were held voluntary even
though the defendant was groggy but coherent and defendant's injuries, though painful,
did not render him unconscious or comatose. In stark contrast, on August 25th, this
defendant suffered seizures and lost consciousness. Compare, United States v. Kelly, 953
F.2d 562, 564-5 (9th Cir. 1992).

Promises of Leniency. The agents also promised defendant that he would be treated
leniently if he confessed, and that 'now is the time to tell if he knew anything and that they
can tell the prosecutor to give him no or little time.' RT.83-4.

Under all the circumstances these promises were clearly intended to overbear defendant's
will and they render any subsequent confession involuntary. United States v. Leon
Guerrera, 847 F.2d at 1366, n.2, and 1367. The agents promised that Mr. Coleman would
actually receive a tangible benefit, i.e. little or no time. They never told him that he had the
right not to cooperate and that it was ultimately his decision. Under these circumstances,
defendant's statements were the involuntary products of police promises or improper
influence, and not of the defendant's informed free-will. 847 F.2d at 1366.

3. There was insufficient evidence to support defendant's conviction for armed bank
robbery.

There was no evidence or testimony that this defendant was armed at any time prior,
during or after the hold-up of the credit union. T.11 (ER 25); T.23 (ER 29). Although the
men had discussed the robbery Ferguson never said anything about using a gun, or about
planning to hit anyone. T.23; ER 29. Ferguson didn't plan to hit anyone during the robbery
T.24; ER 30. Coleman "freaked out" according to Ferguson and "ran off and left [Ferguson
and Johnson] in the building." T.12 (ER 26); T.24 (ER 31). After Coleman "freaked out"
Ferguson didn't see defendant in the credit union again at "no time." T.13; ER 27.
Defendant did not participate in taking money from the credit union. T.13-14; ER 27-8.

Coleman had already left the building when Ferguson used the gun and "couldn't have
been aware of me using the gun." T.24; ER 30. When the men got into the car and drove
away Ferguson didn't say anything about hitting anyone or using the gun. T.25; ER 31.
The district court's judgment of conviction for armed bank robbery should be reversed and
a new trial ordered. Alternately, the armed bank robbery conviction should be reversed
and a judgment of conviction for unarmed bank robbery should be imposed and the case
should be remanded for resentencing.

In a similar case, United States v. Dinkane, 17 F.3d 1192 (9th Cir. 1994), a panel of this
court reversed an armed bank robbery conviction and held that the only crime for which
the defendant could be convicted was unarmed bank robbery.

In Dinkane, the defendant was, like this defendant, the driver of the getaway car in which
the other, main robbers made their escape. Dinkane's armed bank robbery conviction was
reversed because there was, as here, insufficient evidence of the defendant's knowledge
about the use of weapons. 17 F.3d at 1197. In defendant's case he didn't know Ferguson,
or Johnson, was armed. He also didn't know they were going to use weapons. Finally, he
wasn't even in the credit union when the guns were used. That he may have participated
in the "aftermath" of the crime, T.29, does not satisfy the Dinkane test.

Compare United States v. Nelson, 137 F.3d 1094 (9th Cir. 1998)(reversing armed bank
robbery conviction because there was no evidence that the defendant instigated or
encouraged codefendant's use of a gun in the robbery) and United States v. Easter, 66
F.3d 1018 (9th Cir. 1995) (conviction upheld because the defendants discussed using a
gun while en route to the scene and they discussed which robber would carry it into the
bank). Defendant's conviction for armed bank robbery should be reversed, and the
sentence vacated.

4. Defendant's sentencing enhancements are not supported by the evidence.

Defendant's sentence was based, in part, on the court's determination that he was at
Guidelines Level 27, Criminal History Category I. His Criminal History Category is not
disputed.

However, he did challenge the Guidelines Sentencing Level calculations reached by the
PSR author and adopted by the district court in its Findings of Fact Order (CR#104; ER 7).

The PSR author determined that the base level was 20. After adding a 2-level increase
under §2B3.1(b)(1)(property taken from a financial institution), a 6-level increase was
made under §2B3.1(b)(2)(B) based on "jointly undertaken criminal activity" under the
relevant conduct rules of §1B1.3.

A further 2-level increase was added under §2B3.1(b)(3)(A) (infliction of injury by a
codefendant and relevant conduct). These resulted in defendant being sentenced at level
27 (level 30 less a 3-level downward reduction for acceptance of responsibility).

Both the 6-level gun enhancement and the 2-level injury enhancements are not supported
by the evidence.

Mr. Coleman was unarmed before, during, and after the robbery. The evidence also
shows that he was not expecting to see any weapons. Ferguson described Coleman as
"freaking out" and literally running out of the credit union when Ferguson displayed a
weapon. Ferguson also testified that defendant had no prior knowledge of the guns and
that he was not present when they were displayed by Ferguson and Johnson. He was not
present when either Ferguson, or Johnson, used a weapon and pistol whipped one of the
employees. The evidence simply does not support the conclusion that Coleman should be
subject to an 8-level sentencing enhancement because he could not have reasonably
foreseen that the other 2 men were armed or that they would inflict injury on someone.
United States v. Zelaya, 114 F.3d 869 (9th Cir.1997).

In Zelaya, a panel of this court reversed a 2-level enhancement for "express threat of
death" under §2B3.1(b)(2)(F) where the threat was made by a codefendant. The Zelaya
panel rejected the argument that the enhancement was proper under the "jointly
undertaken criminal activity" rubric of §1B1.3(a):

[T]he district court appeared to conclude that the threat was foreseeable based on its
observation that in any bank robbery the robber is "going to have to do something to
intimidate the teller," and that, given the fact that the robber must make some intimidating
statement, an express threat is reasonably foreseeable.

We conclude that a finding of reasonable foreseeability must be based upon something
more than the district court's observations about bank robberies in general... Indeed, it
would make little sense for the Commission to have fashioned a robbery enhancement the
basis for which could properly be implied from the fact of the robbery alone. If this were
the Commission's intent, it could simply have provided for a two-level enhancement to an
accomplice's sentence whenever it is determined that the perpetrator made an express
death threat during the robbery. 114 F.3d at 871.

This reasoning applies with equal force to defendant's case. Since there was no testimony
or evidence that Coleman knew the other 2 men had weapons, and there is no evidence
that they had discussed using weapons, the district court's 8-level sentencing
enhancement is based on little more than an unjustified and unsupported inference that
defendant must have foreseen the use of weapons during the bank robbery because of
the generic nature of bank robberies, an analysis rejected by the Zelaya panel.

5. The Government breached the jury trial waiver agreement.

The agreement in this case, by which defendant agreed to waive a jury trial, was in
exchange for the government's agreement to recommend a low-end sentence. CR# 80;
ER 17. However, at sentencing the government breached its promise and withdrew its
sentencing recommendation. See March 31, 1999 Sentencing Transcript at p.18 (ER 34).

In Santobello v. New York, 404 U.S. 257, 262 (1971) the Supreme Court held that "[w]hen
a plea rests in any significant degree on a promise or agreement of the prosecutor, so that
it can be said to be part of the inducement, or consideration, such promise must be
fulfilled." The promise in this case was that in exchange for waiving his right to a jury trial
the government would recommend a low-end sentence. Although the district court
imposed a low-end sentence, the government did not make the recommendation it
promised and breached the agreement. United States v. Gonzalez, 16 F.3d 985, 991 (9th
Cir. 1993) (government breach of plea agreement releases defendant from the appeal
waiver relating to sentence).

                                       CONCLUSION

Defendant's confession was obtained in violation of the rule in Edwards v. Arizona. Any
purported Miranda waiver was involuntary. Alternately, his confession was involuntary.

His armed robbery conviction should be reversed and the sentence vacated.

Respectfully submitted this 7th day of September, 1999.
        _______________________

        William S. LaBahn, Esq.

Attorney for Defendant

				
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