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United States v. Booker

United States District Court, S.D. California

June 28, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
AARON A. BOOKER, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO SUPPRESS STATEMENTS [ECF NO. 27.]

          HON. GONZALO P. CURIEL, UNITED STATES DISTRICT JUDGE

         Miranda v. Arizona, 384 U.S. 436 (1965), established a prophylactic rule in support of the Fifth Amendment requiring investigators to inform a suspect of his right to an attorney and right to remain silent before custodial interrogation. Unless these Miranda rights are waived, law enforcement officers are not allowed to interrogate the suspect about a crime. Violations of this rule result in the suppression of statements taken in violation of Miranda in the Government's case in chief. Except where the statements are involuntary, they may be used for impeachment if a defendant testifies. See Pollard v. Galaza, 290 F.3d 1030, 1033 (9th Cir. 2002) (“Although a statement, taken in violation of Miranda, may not be used substantively in the prosecution's case-in-chief, such a statement, if voluntary, may be used for impeachment should the Defendant testify inconsistently.”); see also Harris v. New York, 401 U.S. 222, 224 (1971).

         Defendant Aaron A. Booker (“Defendant”) has moved to suppress statements made to Naval Criminal Investigative Service (“NCIS”) agents on March 13, 2017, May 25, 2017 and May 26, 2017, alleging that each statement was obtained in violation of his Fifth and Sixth Amendment rights. (ECF No. 27-17 at 9.)

         In its response to the motion, the Government argued that although none of the statements were custodial (and therefore, subject to Miranda), it would not offer, in its case-in-chief, any post-Miranda statements on March 13, 2017 and May 25, 2017. (ECF No. 31 at 9, ECF No. 60 at 1-2.) Instead, it reserves the right to use these two sets of statements as impeachment should Mr. Booker testify at trial. (Id. at 2.) With respect to the May 26, 2016 telephone call initiated by Mr. Booker to NCIS Agent Joseph Warpinski, Defendant claims that the statement was the fruit of an earlier Miranda violation and is tainted by high pressure tactics employed during the May 25, 2017 custodial interrogation. The Government opposes and asserts that Mr. Booker's telephone call and statements are untainted by any alleged Miranda violations or government conduct.

         Based on the pleadings, evidence submitted at the evidentiary hearing and arguments of counsel, the motion to suppress statements is determined to be MOOT in part, is GRANTED in part and DENIED in part.

         I. PROCEDURAL HISTORY

         On May 23, 2018, a federal grand jury returned an indictment charging Mr. Booker with the Possession of Stolen Explosives, to wit, twenty MK3A2 grenades, also known as G911 grenades, in violation of 18 U.S.C. §§ 842(h), 844(a)(1). (ECF No. 15.)

         On October 2, 2018, Mr. Booker filed the instant Motion to Suppress Statements. (ECF No. 27.) The Government filed its original response and opposition on October 19, 2018. (ECF No. 31.) An evidentiary hearing was held on January 15, 2019. Supplemental briefing was requested by the Court and has been filed by the parties. (ECF Nos. 42, 54, 60, 63, 67.)

         II. FACTUAL BACKGROUND

         A. Theft of 20 Grenades

         According to the Government, on January 20, 2016, the USS Pinckney, a U.S. Navy destroyer, received 60 MK3A2 concussion hand grenades packaged and sealed in three wooden crates with 20 grenades per crate. The grenades were stored inside of Ready Service Locker-6 (“RSL”), and secured with a heavy duty, military issued key lock accessible only to the Gunner's Mates (“GM”) on duty.

         On August 26, 2016, there was a full inventory of explosives onboard the USS Pinckney which accounted for all 60 grenades. On February 8, 2017, another routine inventory was conducted when it was discovered that one of the crates had a missing seal and all 20 MK3A2 grenades were missing. Since access to RSL-6 was limited, NCIS interviewed 15 sailors who had access to RSL-6 between August 26, 2016 and February 9, 2017. At the time the grenades were discovered missing, Mr. Booker, a GM, was in the process of transferring to his new command in Great Lakes, Illinois. He, reportedly, was the sole person assigned to complete temperature checks for RSL-6 on a number of days during his time on the USS Pinckney from November 2016 and January 8, 2017. Mr. Booker officially detached from the command on February 14, 2017 and on March 6, 2017, he checked into his new command in Great Lakes, Illinois.

         B. March 13, 2017 Interview

         On March 13, 2017, NCIS Special Agents Tom Donnelly and Warpinski contacted Mr. Booker's commanding officer at Great Lakes, Illinois to arrange for a command representative to pull Mr. Booker out of training to meet with the agents for questioning. (ECF. No. 52 at 45-46; Booker Declaration, ECF No. 42-1 at 1.) Mr. Booker understood that he was being ordered to submit to the interview. (Id.) The interview took place at the NCIS offices located on the second floor of the legal building, which are access controlled for entry only. (ECF. No. 52 at 45.) The main entrance door opens into a lobby area where there are three interview rooms. SA Warpinski testified that the doors to those interview rooms are unlocked. (Id.) Mr. Booker was interviewed in one of the interview rooms. According to SA Warpinski, Mr. Booker was free to walk out of that room and out the main lobby door without assistance from an agent. However, Mr. Booker was never informed that he was free to go at any time.

         Mr. Booker has offered a declaration from a former NCIS agent, Anthony Perrin, that asserts that when the military tells a member to report to NCIS, this directive is considered a lawful order and a refusal to report can be charged as a “minor offense” for failure to follow orders. (Perrin Declaration, ECF 42-2.) Further, Mr. Perrin declared that, while it was presented as a request, the military imposes adverse consequences on individuals who elect not to cooperate. Meanwhile, SA Warpinski testified that, in his experience, he was unaware of individuals who refused to submit to an interview being charged or punished.

         The interview of Mr. Booker was recorded. (ECF No. 40, Exh. 1A.) SA Donnelly read Mr. Booker his Article 31(b) rights, the equivalent of Miranda warnings, which is required whenever a military member is interviewed about potential incriminating evidence regardless of the setting or circumstances.[1] After reading his rights, the agent asked if he wanted to talk to them. Mr. Booker stated, “I don't mind. . . I just don't want to get involved, that's all. Sure I will talk to you. But I can terminate at any time, right?” Mr. Booker agreed to speak with the agents without an attorney present. (Ex. 1A at 10:37-10:39.)

         Approximately one hour into the interview, the agents told Mr. Booker that they had seized evidence, sent it to the lab and had it processed, and the evidence (including fingerprint and DNA evidence) implicated Mr. Booker. (Id. at 11:28.) The agents then informed Mr. Booker that they did not believe he was being honest and they “know you did it.” (Id.) Mr. Booker replied, “That's why I want to stop this right now because this is kind of overbroad.” When an agent asked: “You don't want to talk to us anymore?” Booker replied “no.” The agents left the room and returned after 15 minutes. Agent Donnelly then made a number of accusatory statements that led Mr. Booker to briefly discuss the evidence, dangers of the grenades, and a polygraph. (Id. at 11:27-11:33.) Around time 11:33:40 on the video recording, Mr. Booker stated that he did not want to speak with the agents anymore.

         Afterwards, the agents left the room and returned approximately 15 minutes later, explaining that they were waiting for a driver to transport Mr. Booker back to his post. For the next 24 minutes, the agents confronted Mr. Booker and pressed him to make a statement by letting Mr. Booker know that the case involved public safety, the severe consequences if someone ended up hurt by one of the grenades, and the fact that the agents were not just going to go away. Finally, the interview was concluded and the NCIS agents returned Mr. Booker to his command.

         C. Discovery of Backpack with 18 Missing Grenades

         On April 20, 2017, a black backpack containing 18 MK3A2 grenades was discovered on the side of the road on Interstate 15 near mileposts 21 and 22 in northwest Arizona. The backpack with the 18 grenades was turned over to an Arizona Department of Public Safety (“AZDPS”) Officer on April 20, 2017. That officer then turned the bag and grenades over to the Federal Bureau of Investigation (“FBI”). The grenades had the same lot number as the missing grenades from the USS Pinckney. The black bag was a standard military style backpack with “GM2 BOOKER” handwritten on a tag inside the bag.

         D. May 25, 2017 Interview

         On May 25, 2017, Special Agents Warpinski and Bell arranged with Mr. Booker's commanding officer to speak with Mr. Booker again in Great Lakes, Illinois at the legal building. (ECF. No. 52 at 52-53.) SA Warpinski testified at the January 15, 2019 hearing that Mr. Booker was notified that he needed to report to NCIS offices and a command representative drove Mr. Booker to the legal building. (Id. at 54.) There, the agents met with Mr. Booker in the same NCIS office where they had previously interviewed Mr. Booker. (Id.) Mr. Booker again understood that attendance at the interview had been ordered by his commanding officer. (Booker Declaration, ECF No. 42-1 at 2.)

         SA Warpinski began the interview by directing Mr. Booker not to say anything and to listen for a little while. (ECF No. 54-1 at 1.) He proceeded to inform Mr. Booker, among other things, that a backpack bearing his DNA was discovered near a highway in Arizona and was found to contain 18 of the missing grenades. Agent Warpinski then explained that the agents had an entire case against Mr. Booker and that Mr. Booker had two options when it came to acceptance of responsibility: he could refuse to acknowledge responsibility or he could acknowledge what happened, who was involved and account for the last two grenades. SA Warpinski then read Mr. Booker his Article 31(b) rights, and Mr. Booker requested legal counsel.

         The agents left the room at approximately 8:57 on the video recording, and when they returned nine minutes later, they informed Mr. Booker that they were preparing to execute search warrants as follows: 9:06:38 [Agents return.]

SA Warpinski: All right man, um, I got some questions for you that are not related to the case that are safety questions. Um, we are, we have a series of search warrants that we are about to go execute um we have one for your car, we have one for your house. Um, and I want to know, I mean there's two ways we can do these things, we can breakdown your door, which I know you don't want us to do because you don't want to pay for it. Um, if you want to tell us where your keys are, give is (sic) your keys, so we can just open your door, um same things goes for your car.
A. Booker: Can I be present when you do this?
SA Warpinski: Uh you can.
SA Bell: We will take you with you, (sic) you are not going to be in the house or in, you can be outside the residence in the car with me or something. You are not going to be in there.
A. Booker: Do you have to?
SA Bell: Oh, we are doing it dude, I don't, I don't, yeah, I don't know you listened to Joe in the beginning, but this is big time.
A. Booker: Oh yeah, I see.
SA Bell: This is joint terrorism FBI stuff, right.
A. Booker: No, no, no I was willing to . . . I am still willing to cooperate (unintelligible - SA Bell talking over Booker).
SA Bell: So, so I hope you understand it now it's, it's gone a little bit beyond the military right. These aren't military warrants; these are Federal search warrants.

         Mr. Booker stated that he believed that the agents had engaged in good cop/bad cop and that ultimately he wanted the agents to see that there was no evidence of any crime at his home or his car. This remark prompted the following exchange:

SA Bell: I know you have never met me, but I want you to, because you never met me, I want you to know me. I don't bullshit dude; I got no issues; I got nothing to do with that, right. The good cop/bad cop thing is not a real thing. What today was, you know why we came back today really right?
A. Booker: Because of the pictures and stuff.
SA Bell: No, well okay. That was part of it, we didn't have to come back today. We did that right. Joe is completely 100% truthful with you; the evidence speaks for itself.
A. Booker: Uh huh.
SA Bell: Today was an opportunity for you just to talk and tell us your story.
A. Booker: Yeah.
SA Bell: So we could go back and do good work, write good reports, talk to the right people and tell them exactly what you told us.

         At this point, Mr. Booker spoke about his backpack and explained why he would not be involved with stealing the grenades. The agents responded that they could not speak with him since he invoked his right to counsel, and they could not consider anything he said without a waiver of his rights. At 9:11 in the interview, Mr. Booker stated that he wanted to talk about “my history of leaving stuff behind.” At this point, he advised the agents that he is on anxiety medication and would need to take it in a half hour. The NCIS agent then reviewed Mr. Booker's Article 31(b) rights with him again and Mr. Booker waived his Article 31(b) rights and spoke to the agents. After his waiver, Mr. Booker confirmed ownership of the backpack and acknowledged he traveled along the remote section of Interstate-15 where the grenades were located. He stated the backpack was stolen from him approximately one year earlier after he left it in the armory of USS Pinckney, which upset him because it contained a GM Pin on the front that is extremely difficult to find. He stated that he had seen the grenades outside of their packing crates and received training on their use.

         At the end of the interview, Mr. Booker requested to be present at the search of his vehicle and his residence. Thereafter, Mr. Booker was handcuffed and advised that he was a suspect in an investigation for the theft of 20 MK#A2 grenades. (ECF 54-1, p. 56.) Afterwards, Mr. Booker rode with the agents to his command to pick up his keys for his residence, and then they drove to his home.

         After arriving at his home, Mr. Booker was unhandcuffed throughout the execution of the search warrant at Mr. Booker's home and re-handcuffed when he was transported back to the base at the conclusion of the search at approximately 5:30 p.m. that afternoon. (ECF No. 52 at 30-31.) During the search, the GM pin that Mr. Booker claimed was on his backpack when it was stolen was found in his residence. He acknowledged it was the same pin, and he could not provide a reason why he still had the pin if it was stolen with the backpack. After the home search, the agents and Mr. Booker returned to the Naval Base to complete the search of his vehicle in Mr. Booker's ...


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