Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

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

United States v. Yip


May 10, 2007


The opinion of the court was delivered by: Hon. Barry Ted Moskowitz United States District Judge


Defendant Mon Gen Yip has filed a Motion for New Trial. For the reasons discussed below, Defendant's motion is DENIED.


On February 4, 2006, at approximately 7:00 p.m., Defendant, the driver and sole occupant of a 2000 Ford Taurus, entered the San Ysidro Port of Entry. Defendant was referred to secondary inspection when a narcotic detector dog alerted to the trunk of Defendant's car. At secondary inspection, Customs and Border Protection officers discovered several packages hidden in a non-factory compartment. The packages tested positive for cocaine.

In an Indictment filed on March 1, 2006, Defendant was charged with importation of 16.3 kilograms of cocaine in violation of 21 U.S.C. §§ 952 and 960 and possession of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1).

Prior to trial, the Government filed a motion in limine to admit Rule 404(b) evidence of Defendant's post-arrest statements to Immigration and Customs Service agents that he had used methamphetamine earlier that day and over the past three days. The Court denied the motion in limine and precluded the Government from introducing evidence of Defendant's admitted methamphetamine use.

On February 13, 2007, the second day of trial, Assistant United States Attorney Neville Hedley called Special Agent Curtis Johnson to the stand. Agent Johnson testified that he and Agent Azzerello were called down to the San Ysidro Port of Entry about 9:00 p.m. on February 4, 2006. (Trial Transcript, 101.) Agents Johnson and Azzerello first came into contact with Defendant in a holding cell. (Trial Transcript, 103.) After determining that a translator was not necessary, the agents transferred him to an interview room. (Id.)

Agent Johnson testified that after Defendant waived his Miranda rights, he told them how the car he was driving had been loaned to him by a man named Jose or Chacho. (Trial Transcript, 106.) Defendant told the agents that he drove the car to the United States on Friday and then came back to Mexico on Saturday morning to "go party" with Jose in Tijuana. (Id.)

At this point in Johnson's testimony, Hedley asked Johnson: "And what did he say after he drove back into Mexico on Saturday morning, February 4th, 2006?" (Trial Transcript, 107.) Agent Johnson responded: "He said he came back in the morning to party and that he had used methamphetamine about eleven o'clock that morning, and then -- ." (Id.)

Defense counsel requested a sidebar and moved for a mistrial. (Trial Transcript, 107.) The Court declined to grant a mistrial at that point in time, but instructed the jury to disregard Agent Johnson's testimony regarding Defendant's use of a controlled substance. (Id. at 110.) Trial proceeded, and Defendant took the stand. Defendant's drug use was not placed at issue.

On February 15, 2007, the Court held an evidentiary hearing regarding Agent Johnson's violation of the Court's order precluding the evidence regarding Defendant's drug use. Johnson testified that a few days prior to his testimony at trial, Hedley instructed him that he was not to bring up Defendant's drug use. (Transcript of 2/15/07 hearing, 17.) He had also been told not to bring up the issue of Defendant's drug use during prior trial preparation. (Id. at 18.) Johnson explained that he inadvertently mentioned the drug use because he was reciting what Defendant had told him in sequence. (Id. at 22.) Johnson also testified that he believed Defendant told them about his drug use before the Miranda warnings based on where in his notes the reference to the drug use appears. (Id. at 13.) Johnson testified that he didn't recall if Defendant reiterated his statements about his drug use after the Miranda warnings, but suspects he may have. (Id.)

The Court found that Hedley had told Johnson not to mention Defendant's drug use and that Johnson inadvertently revealed the information. (Id. at 31-32.) The Court concluded that there was no intentional misconduct. (Id. at 33.) The Court explained that it was still denying a mistrial on the ground that it was more probable than not that the erroneous admission of the evidence did not affect the jury's verdict. (Id. at 37-38.) However, the Court also explained that if there was a constitutional violation -- i.e., if Defendant's statements about his drug use were obtained in violation of Miranda -- the applicable test would be whether the erroneous admission of the evidence was harmless beyond a reasonable doubt. (Id. at 38.) Because the Miranda issue was not the subject of the hearing and was not addressed by the parties, the Court made it clear that it was not ruling on the issue and was not ruling on whether the admission of the evidence was harmless beyond a reasonable doubt. (Id. at 38-39.)

On the same day as the evidentiary hearing, the jury returned a verdict of guilty on both counts. Subsequently, Defendant filed his motion for new trial.


In his Motion for New Trial, Defendant contends that his statements regarding his use of drugs were obtained in violation of Miranda and his Fifth Amendment rights. Defendant further contends that the erroneous admission of this evidence was prejudicial and was not harmless beyond a reasonable doubt. However, the Court finds that Defendant made post- Miranda statements regarding his drug use that were voluntary and admissible. Although the jury should not have heard this evidence due to the Court's ruling on the Government's motion in limine, it is more probable than not that the introduction of this evidence did not affect the jury's verdict.

A. Defendant's Post-Miranda Statements Regarding Drug Use

Based on his notes, Agent Johnson believed that Defendant told him that he had used methamphetamine prior to receiving the Miranda warnings. According to Johnson, the agents obtained biographical information from Defendant prior to reading him his Miranda warnings. (Trial Transcript, 105.) Johnson filled out a form with the biographical information. (Exh. B to Gov't Opp.) In the space next to "Drug/Alc. use," Johnson wrote, "crystal meth snort about 11 am." Thus, it appears that Defendant admitted to using methamphetamine prior to receiving the Miranda warnings.

However, the evidence shows that Defendant also admitted to using methamphetamine after receiving the Miranda warnings. Agent Azzarello took notes of the substantive portion of Defendant's interrogation. (Exh. C to Gov't Opp.) Azzarello's notes begin with the notation: "rights waived." The notes summarize Defendant's version of events. After quoting Defendant insisting, "For reals I didn't know there was cocaine," the notes state: "used meth approx 11:00 am & has used the last 3 days." This description of Defendant's drug use is more complete than the notation on the biographical information sheet, supporting the conclusion that Defendant talked about his drug use twice - once before the Miranda warning and once after.

B. Law Governing Admissibility of Statements Obtained After a Miranda

Warning but Preceded by the Defendant's Unwarned Incriminating Statements In Oregon v. Elstad, 470 U.S. 298 (1985), Elstad, a burglary suspect, was at home when police officers arrived with a warrant for his arrest. Elstad was questioned by a police officer who did not give him a Miranda warning. Elstad proceeded to make some incriminating statements to the police officer. Subsequently, Elstad was taken to Sherriff's headquarters where he was read his Miranda rights. Elstad indicated that he understood his rights but wanted to speak with the officers. Elstad then made a full confession. Elstad conceded that the officers made no threats or promises either at his house or at the Sheriff's station.

Elstad argued that his confession should have been suppressed as the "tainted fruit of the poisonous tree" of the Miranda violation. Id. at 303. Elstad also argued that a confession cannot be truly voluntary once the "cat is out of the bag." Id. at 304. The Supreme Court rejected both of these arguments, reasoning:

It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.

Id. at 309. The Court held that "a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings." Id. at 318. "The relevant inquiry is whether, in fact, the second statement was also voluntarily made." Id.

In Missouri v. Seibert, 542 U.S. 600 (2004), the Supreme Court considered the admissibility of a confession obtained through the use of a so-called "two-step" interrogation strategy. Under the two-step strategy, the police employed a "protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession." Id. at 604. There, the police, suspecting Seibert of murder, woke her up at 3:00 a.m. and took her to the police station. Once at the station, the police questioned her for 30 to 40 minutes without providing Miranda warnings. After she admitted to plotting to intentionally start a fire designed to kill, Seibert was given a 20-minute coffee and cigarette break. She was then provided Miranda warnings and waived her rights. The officer resumed questioning her, confronting her with her pre-warning statements. She confessed to the murder. Id. at 604-05. Importantly, an officer from the police department that arrested Seibert testified that the department "promoted" the two-step interrogation strategy. Id. at 609.

Seibert moved to suppress both the prewarning and postwarning statements. The trial court suppressed the prewarning statement but admitted the post-Miranda statement. Justice Souter, writing for four Justices, voted to suppress the self-incriminating statements. Despite the fact these statements were made after an informed waiver of Miranda, Justice Souter described the "police strategy [as] adapted to undermine the Miranda warnings." Id. at 616. He explained that the circumstances "challeng[ed] the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect's shoes would not have understood them to convey a message that she retained a choice about continuing to talk." Id. at 617. These justices reasoned that because the "question-first tactic effectively threatens to thwart Miranda's purpose of reducing the risk that a coerced confession would be admitted, and because the facts here do not reasonably support a conclusion that the warnings given could have served their purpose," the post-warning statements were inadmissible. Id.

Justice Kennedy, concurring in the judgment, rejected Justice Souter's approach, preferring "a narrower test applicable only in the infrequent case, such as we have here, in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning." Id. at 622. Justice Kennedy instead proposed that the "admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed." Id.

In United States v. Williams, 435 F.3d 1148 (2006), the Ninth Circuit examined the "splintered opinions" of Seibert and determined that the precedential holding of Seibert is that "where law enforcement officers deliberately employ a two-step interrogation to obtain a confession and where separations of time and circumstance and additional curative warnings are absent or fail to apprise a reasonable person in the suspect's shoes of his rights, the trial court should suppress the confession." Id. at 1158. However, in cases "where the two-step strategy was not deliberately employed, Elstad continues to govern the admissibility of postwarning statements." Id. at 1158.

In determining whether an interrogator deliberately violated Miranda, courts should consider whether "objective evidence and any available subjective evidence, such as an officer's testimony, support an inference that the two-step interrogation procedure was used to undermine the Miranda warning." Id. at 1158. "Such objective evidence would include the timing, setting, and completeness of the prewarning interrogation, the continuity of police personnel and the overlapping content of the pre- and postwarning statements." Id. at 1159. "When an interrogator has deliberately employed the two-step strategy, Seibert requires the court then to evaluate the effectiveness of the midstream Miranda warning to determine whether the postwarning statement is admissible." Id. at 1160.

C. Application of the Law

Upon reviewing the evidence, the Court concludes that Agents Azzarello and Johnson did not deliberately employ a two-step interrogation procedure to obtain incriminating statements. It is clear from the form Johnson filled out that whether the detainee was using drugs or alcohol was deemed biographical information for booking purposes. Although the Court is not persuaded by the Government's position that questions about drugs or alcohol never constitute interrogation,*fn1 the Court believes that the agents asked Defendant about his drug use prior to Miranda warnings because they understood that this information was to be gathered along with other background information. There is no evidence to suggest that the agents deliberately employed a two-step interrogation procedure to circumvent Miranda.

Therefore, the Court's analysis is guided by Elstad. Under Elstad, if the prewarning statements were voluntary, then the postwarning statements are admissible unless they were involuntarily made despite Miranda warnings.

The Court finds that Defendant's prewarning admission that he used methamphetamine was voluntary. The pre-Miranda portion of Defendant's interview lasted less than 10 minutes. During this part of the interview, Defendant was asked a number of background questions such as his address, social security number, occupation, and family members. There is no evidence to suggest that Defendant's answers to these questions, including the question about his drug use, were anything but voluntary.

Similarly, there is no evidence that Defendant was subjected to coercive or improper tactics during the post-Miranda portion of the interview. Based on Azzarello's notes, it appears that this part of the interview was also very short in duration. After being warned of his Miranda rights and agreeing to make a statement, Defendant told his version of the events leading up to his arrest. When the agents indicated that they did not believe his story, Defendant responded, "I can not change the story, I don't have another story. For reals I didn't know there was cocaine." (Trial Transcript, 112; Exh. C to Gov't Opp.) It appears that the agents then ceased questioning Defendant about his version of events and asked him about his drug use. Defendant again admitted that he had used methamphetamine at approximately 11:00 a.m. and added that he had used methamphetamine over the past three days. (Exh. C to Gov't Opp.)

There is no evidence of circumstances that undermined Defendant's ability to exercise his free will during the post-Miranda portion of the interview. To the contrary, when agents suggested that Defendant was lying, Defendant insisted that he was telling the truth and continued to proclaim his innocence. Shortly thereafter, Defendant admitted to using methamphetamine. The Court concludes that Defendant's postwarning admission of drug use was voluntary.

Because Defendant's postwarning statements regarding his methamphetamine use were not obtained in violation of Miranda or Defendant's Fifth Amendment rights, the applicable standard for determining whether the erroneous introduction of the evidence was harmless is whether it is "more probable than not that the erroneous admission of the evidence did not affect the jury's verdict." United States v. Hill, 953 F.2d 452, 458 (9th Cir. 1991). As the Court previously concluded, considering all of the evidence presented at trial, the Court's curative instruction, and the fact that Defendant's drug use was not mentioned again, it is more probable than not that the erroneous introduction of evidence regarding Defendant's methamphetamine use did not affect the jury's verdict.


For the reasons discussed above, Defendant's Motion for a New Trial is DENIED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

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