United States District Court, N.D. California
ORDER GRANTING MOTIONS TO SUPPRESS BOOKING STATEMENTS
Re: Dkt. Nos. 480, 488, 573, 589, 621
William H. Orrick United States District Judge
two years ago I granted defendant Antonio Gilton's motion
to suppress his answer to a booking question concerning
whether he was a member of a gang. The government appealed
that decision, and I delayed ruling on similar motions
brought by five other defendants. On December 5, 2016, the
Ninth Circuit affirmed the prior order. United States v.
Williams, 842 F.3d 1143 (9th Cir. 2016). Because the
circumstances underlying each of the other defendants'
motions justify suppressing their booking statements, I grant
their motions as well.
Second Superseding Indictment describes a racketeering case
against the Central Divisadero Playas (CDP) gang, an alleged
enterprise that promotes and enhances itself through acts of
murder, violence, narcotics trafficking, robbery, pimping and
other criminal acts. Dkt. No. 139. Proof of membership in CDP
is central to the government's ability to prevail in
Count One of the Indictment.
September 1, 2015, I granted defendant Antonio Gilton's
motion to suppress his answer to a booking question
concerning whether he was a member of a gang. United
States v. Williams, No. 13-CR-00764-WHO-1 (Dkt. No.
465), 2015 WL 5138517, at *1 (N.D. Cal. Sept. 1, 2015). I
reasoned that the question was reasonably likely to elicit
incriminating evidence and “was also inherently
coercive, no matter the apparent benign motivation behind
it[.]” Id. Since Gilton's response was
elicited after he had asserted his right to counsel and no
exceptions applied, the question violated his Fifth Amendment
right against self-incrimination, as articulated in
Miranda v. Arizona, 384 U.S. 436 (1966).
government appealed that decision, and I delayed ruling on
similar motions brought by defendants Esau Ferdinand, Monzell
Harding, Jr., Paul Robeson, Barry Gilton, and Alfonzo
Williams. See Dkt. Nos. 480, 488, 573, 589, 621. On
December 5, 2016, the Ninth Circuit affirmed. United
States v. Williams, 842 F.3d 1143 (9th Cir. 2016). I
must now address the specific circumstances presented by each
of the other defendants.
Defendant Esau Ferdinand
challenges three sets of statements based on three sets of
gang classification documents dated October 6, 2009, October
26, 2011, and March 5, 2012. Ferdinand Mot. at 4 (Dkt. No.
480). On October 6, 2009, Ferdinand was arrested and charged
with participating in a criminal street gang, intimidation of
a witness, and conspiracy. Id. He invoked his right
to counsel. Id. During the booking process, a
sheriff's deputy asked if he was affiliated with a gang,
and Ferdinand replied “Uptown Fillmore.”
Id. On October 26, 2011, Ferdinand was arrested on
various charges, including a robbery and shooting incident
that took place in April of that year. Id. The
sheriff's deputy identified Ferdinand as an “Uptown
Fillmore” gang member based on “Self Admission,
” and other factors including prior arrests, fellow
officers' intelligence, and identifications by validated
gang members. Id. at 5. On March 5, 2012, Ferdinand,
who had been in continuous custody since 2011, was
interviewed by another sheriff's deputy who completed
another Classification Unit Information Report identifying
Ferdinand as a “Central Davis Player CDP” [sic]
gang member based on “direct admission of gang
Defendant Monzell Harding, Jr.
is the only one of eleven defendants whose only count is the
RICO charge. Harding Mot. at 3 (Dkt. No. 488). The count is
supported in the indictment by overt acts of an iPod robbery
and witness intimidation. Id.
August 22, 2009, Harding was arrested for taking a vehicle
without owner consent and driving without a license.
Id. He was not given Miranda warnings upon
his arrest. Id. The next day, a sheriff's deputy
interviewed him as part of the booking process. He responded,
“I am from Divis. I hook up with 800 block and Chopper
City.” Dkt. No. 488, Ex. C [under seal]. The
classification unit report lists Harding's gang
membership as “800 block/Divis.” Harding's
Mot. at 4. No charges were filed. On October 6, 2009, Harding
was arrested for witness intimidation and gang-related
conspiracy following his attendance at a preliminary hearing
in the murder trial of co-defendant Charles Heard.
Id. Officers questioned him, then Mirandized him,
and continued questioning him. See Harding's
Mot. for Suppression of Evidence Obtained on October 6, 2009
at 3-5 (Dkt. No. 1100). The next day he was interviewed as part
of the booking process. Harding Mot. at 4. The classification
report indicates that Harding identified himself as
“Uptown Fillmore.” Id. at 5. On August
8, 2011, Harding was arrested for theft from a locked
vehicle. Id. The next day he was interviewed as part
of the booking process and the sheriff's deputy listed
Harding's gang as “Uptown Fillmore.”
Id. No charges were filed. On November 9, 2011,
Harding was arrested and held on a warrant for a robbery that
had allegedly occurred in October 2011. Id. The next
day he was interviewed as part of the booking process.
Id. A sheriff's deputy completed a questionnaire
indicating that Harding was a member of “Fillmore
uptown.” Id. at 7. A case was filed but later
dismissed. Id. at 6. On August 27, 2013, Harding was
arrested for burglary and receiving stolen property; he was