USA v. Lewis-Daniel et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JAFARI LEWIS-DANIEL,
Defendant.
Case No. 3:16-cr-00016-02-TMB-KFM
FINAL REPORT AND
RECOMMENDATION REGARDING
THIRD MOTION TO SUPPRESS1
[Docket No. 39]
I. 	MOTION PRESENTED
Before the Court is Jafari Lewis-Daniel’s motion to suppress evidence of statements
he gave to the FBI on February 9, 2016.2 	The government opposes.3 	No party asked for an
evidentiary hearing or for argument, and this Court concludes that neither is required. 	Upon
careful consideration of all the circumstances surrounding the FBI questioning of Jafari4 on
February 9, 2016, this Court recommends that the District Court, upon independent review, deny
the motion to suppress at Docket No. 39.
1 This report and recommendation is being issued as a final report and recommendation. Pursuant
to Fed. R. Crim. P. 59(b)(3), any objections will be considered by the District Court Judge, who will accept,
reject, or modify the recommendation, or resubmit the matter to the Magistrate Judge for additional
consideration and recommendations.
2 Docket No. 39.
3 Docket No. 49.
4 This report and recommendation refers to Jafari Lewis-Daniel as Jafari to avoid any confusion
with co-defendant Jarron Ezekiah Lewis-Daniel.
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II. 	BACKGROUND
A. 	The Indictment
Jafari Lewis-Daniel and Jarron Ezekiah Lewis-Daniel jointly are charged with
armed bank robbery in violation of 18 U.S.C. § 2113(a), (d) (Count 1).5 The Indictment alleges
that on December 23, 2015, they stole $230,050 belonging to the Wells Fargo Bank by force,
violence, and intimidation with a firearm.6 The Indictment also seeks forfeiture of $97,888, a 55
inch big screen television, 99 percent pure gold foiled playing cards, a 2010 Honda motorcycle, a
2003 Dodge truck, and 2005 Audi A4 automobile if either is convicted of the armed bank robbery.7
B. 	Jafari Lewis-Daniel’s Motion to Suppress and the Government’s Response
Jafari asks for an order suppressing statements he gave to law enforcement on
February 9, 2016.8 	Jafari contends that his statements must be suppressed because they were
obtained in violation of the Fifth and Sixth Amendments.9 	In particular, Jafari asserts that he
invoked his right to counsel during an interview with Special Agent Wendy Terry, and that all
statements to law enforcement following his invocation must be suppressed under Edwards v.
Arizona.10 Jafari’s motion is supported by the sworn declaration from his counsel attesting to the
truthfulness of the factual representations contained in his suppression request.11
The government opposes.12 	It contends that the Edwards rule was not violated
because Jafari was never in Miranda custody when he voluntarily responded to FBI questions.13
5 Docket No. 9.
6 Id.
7 Id.
8 Docket No. 39 at 1.
9 Id.
10 451 U.S. 477 (1981).
11 Docket No. 40.
12 Docket No. 49.
13 Id. at 8-12.
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The government’s opposition is supported by the sworn declaration of Special Agent Wendy
Terry, which attests to the circumstances surrounding the February 9, 2016, FBI questioning of
Jafari.14 	The government’s opposition is supplemented with a conventionally filed CD which
contains recordings of Jafari’s February 9, 2016 interviews with law enforcement.15
C. 	Jafari’s Response to the Order from Chambers
In response to this Court’s minute order,16 Jafari clarified his suppression request.17
In particular, Jafari indicated he: (1) does not contend that he was in custody during his February 9,
2016 interviews with Special Agent Terry; (2) does not contest the veracity of Special Agent
Terry’s sworn declaration; and (3) was not requesting an evidentiary hearing on whether he was
in Miranda custody during the February 9, 2016 interview with Special Agent Terry.18
D. 	The Facts
On December 23, 2015, an Axiom armored car was robbed outside a Wells Fargo
Bank in Anchorage, Alaska.19 The robbers made off with $230,050, money which belonged to the
bank.20 On February 9, 2016, at approximately 6:40 a.m., eleven law enforcement agents executed
a robbery investigation-related search warrant on Jafari’s apartment.21 The officers knocked on
Jafari’s door and announced their presence.22 When no one responded after a minute, the officers
used a battering ram to break down the door.23 The officers then ordered Jafari, his girlfriend, and
14 Docket No. 50.
15 Docket No. 55 (conventionally filed CD of February 9, 2016 recorded interviews).
16 Docket No. 56.
17 Docket No. 57.
18 Id.
19 Docket Nos. 1 at 6; 50 at ¶ 2.
20 Docket No. 1 at 6.
21 Docket No. 50 at ¶¶ 3, 4.
22 Id. at ¶ 4.
23 Id. at ¶ 5.
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another female resident out of the apartment.24 	The three were held briefly in a hallway
immediately outside the apartment while the officers cleared it to ensure that no one was hiding or
destroying evidence.25
Once the apartment was cleared, Jafari and the two women returned to the
apartment.26 	Jafari sat on a couch.27 	FBI Special Agent Wendy Terry introduced herself,
described the warrant authorizing the search, and asked if Jafari wanted to speak with her.28 Terry
told Jafari that if he agreed to speak with her the conversation could occur in the apartment, in a
car outside the apartment, or at the FBI office.29 She specifically informed Jafari that he need not
submit to an interview and that he could leave at any time.30
Jafari said he would speak with Terry in the car.31 	After February-appropriate
clothing was located, Jafari accompanied Terry and Special Agent Daryl Allison to a nearby
government sport utility vehicle.32 Jafari was not handcuffed.33 Terry sat in the rear driver’s side
seat across from Jafari.34 Jafari sat in the rear passenger-side seat across from Terry.35 Allison sat
in the front in the driver’s seat.36 	A ninety-minute recorded interview followed. 37 	Fourteen
minutes into the interview the following colloquy occurred:
SA Terry: Everybody talks and this is your opportunity to
tell me what happened okay? It’s really important that we continue
24 Id.
25 Id. at ¶ 6.
26 Id. at ¶ 7.
27 Id.
28 Id.
29 Id.
30 Id. at ¶¶ 7, 10.
31 Id. at ¶ 7.
32 Id. at ¶¶ 7, 8.
33 Id. at ¶ 7.
34 Id. at ¶ 8.
35 Id.
36 Id.
37 Id. at ¶ 9; see also Docket No. 55 (conventionally filed CD of February 9, 2016 recorded
interviews).
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this conversation that you’re upfront with me, tell me exactly what
happened, how it happened and your side of the story cause this is
pretty much the only chance you get to do that. After today, I’m not
going to talk to you anymore. 	And all these other people have
already started flipping because everybody talks man, you know
that, everybody talks so don’t be the last person to talk cause when
you’re the last person to talk, --- we see it all the time, you know
people think they’re gonna beat it and then they’ll go “no no I’m not
gonna say anything” and then eventually they go to jail and they’ll
go “oh shit I wanna talk” and I’m like it’s too late now, cause
everyone’s already made their deals okay? So obviously we’re here
because, I mean I’m not sure why you used the car that was
registered in your name but
Jafari: I didn’t use anything
SA Terry: I gotcha, ok. Let’s get past, so let’s start, so let’s
take little baby steps okay. First step is, let’s get past you not being
involved. I know you are involved, I didn’t come to ask you if you
were involved, I know you are okay? 	And we’re not gonna play
semantics of “I wasn’t in the car, I didn’t hold the gun.” 	I wanna
know exactly from you what happened and how it happened from
beginning to end. Because you don’t want any of these other jokers
telling your story because when they tell your story it’s gonna make
you look really bad.
Jafari: They can tell their story all they want ma’am.
SA Terry: I understand but
Jafari: But what comes out of my mouth is what’s from my
heart. 	And I can tell you straight up that I was not there when it
happened, that was my vehicle and that was it. But further than
that, I would like to have a lawyer present.
SA Terry: Okay
Jafari: 	Because, you know, but that part about my uncle
that was not a lie so
SA Terry: Oh no, I don’t
Jafari: Just so you know
SA Terry: No no I have no idea whether he’s your uncle or
not. I know that
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Jafari: Yeah of course, I just want to put that out there
SA Terry: Okay, that’s cool I mean
Jafari: Because that was not a lie – you can talk to him, call
him whatever. Cause he’s
SA Allison: Will he pick up the phone?
SA Terry: Yeah
Jafari: I don’t know
SA Terry: Probably not
SA Allison: He probably won’t pick up the phone because
he doesn’t know who we are
SA Terry: Yeah probably not. Okay I gotcha
Jafari: But yeah, I did get that truck for 12
SA Terry: Yeah
Jafari: And yeah
SA Terry: You know, I mean it’s up to you what you gonna
do but if what you’re saying is true then all you have to do is just
tell me what they told you and you would be, probably better off,
well at least better off than them. So let’s just start with that. Who
actually borrowed the car.38
During the interview, Jafari made incriminating statements. He denied involvement in the robbery,
but admitted loaning his car to the robbers and receiving $40,000, apparently in return for the loan
of the car.39
38 Docket No. 39 at 2-5 (emphasis added); see also Docket No. 55 (conventionally filed CD of
February 9, 2016 recorded interviews).
39 Docket No. 50 at ¶ 9; see also Docket No. 55 (conventionally filed CD of February 9, 2016
recorded interviews) at Exhibit 2 – First Interview.
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The first interview ended when Terry left the sport utility vehicle to check on the
status of the search and to get a copy of the search warrant.40 When she returned, Jafari still was
sitting in the vehicle with Allison.41 Terry again activated her recording device and told Jafari that
the search was still underway, that copies of the warrant were in his apartment, that he was not
under arrest, and that he was free to leave.42 Terry provided Jafari with a business card so he could
contact her if he wanted to provide any additional information about the case.43 This conversation
lasted about three minutes.44
Jafari got out of the sport utility vehicle and returned to his apartment.45 Terry and
Allison accompanied Jafari to the apartment and obtained a chair for him to sit on in the outside
hallway while the search continued inside.46 	As he waited, the searching officers discovered a
handgun and a bag containing $18,400 on the ground outside Jafari’s third floor apartment
window.47 When Terry asked about the handgun, Jafari said he found it at a party and that he
tossed it out the window when he heard the FBI knock.48 This recorded conversation lasted about
six minutes.49 Again, Terry advised Jafari that he could not return to his apartment until the search
was completed, but that he was not under arrest and was free to leave at any time.50 Jafari remained
40 Docket No. 50 at ¶ 10.
41 Id.
42 Id.; see also Docket No. 55 (conventionally filed CD of February 9, 2016 recorded interview)
at Exhibit 3 – Second Interview.
43 Docket No. 50 at ¶ 10.
44 Id.
45 Id. at ¶ 11.
46 Id.
47 Id.
48 Id.; see also Docket No. 55 (conventionally filed CD of February 9, 2016 recorded interview) at
Exhibit 4 – Third Interview.
49 Id.
50 Docket No. 55 (conventionally filed CD of February 9, 2016 recorded interviews) at Exhibit 4
– Third Interview.
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seated in the hallway near his apartment. After this conversation, Terry left to interview Jarron
Lewis-Daniel at a different location.51
After Terry left, Special Agent Ormberg and Task Force Officer Clark interviewed
Jafari.52 	This interview occurred in a vehicle and was recorded on a video recorder.53 	At the
outset, Ormberg advised Jafari that he was free to leave, but gave him a Miranda warning “based
on some of the stuff we found in the house.”54 Jafari acknowledged his rights and expressly agreed
to speak with Ormberg and Troy.55 During this interview, Ormberg and Troy used incriminating
statements Jafari earlier gave to Terry to formulate their own questions.56 	Jafari’s responses
continued to be incriminating.57 When this questioning ended an hour or so later, these officers
arrested Jafari and charged him with armed bank robbery.
III. 	ISSUE PRESENTED
Did the FBI obtain Jafari’s statements in violation of the Fifth and Sixth
Amendments as explicated in Edwards v. Arizona?
IV. 	ANALYSIS
Upon a careful and through examination of FBI questioning of Jafari on February 9,
2016, this Court respectfully recommends that the District Court, upon independent review, deny
the motion to suppress at Docket No. 39. This result is compelled because Jafari’s statements were
entirely free and voluntary, and because he was never in Miranda custody during his conversations
51 Docket No. 50 at ¶ 13.
52 Id.
53 Docket No. 55 (conventionally filed CD of February 9, 2016 recorded interviews) at Exhibits 5a,
5b – Fourth Interview.
54 Docket No. 55 (conventionally filed CD of February 9, 2016 recorded interview) at Exhibits 5a,
5b. The video recording appears incomplete. However, Exhibit 5a captures the Miranda advisement and
Jafari’s waiver.
55 Id.
56 Id.
57 Id.
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with Special Agent Terry. 	The result also is compelled because the Sixth Amendment right to
counsel had not attached; the formal charging process had not yet been initiated.
A. 	The Fifth Amendment and the Edwards Rule
In Miranda v. Arizona,58 the Supreme Court has determined that custodial
interrogation 	is 	inherently 	coercive.59 	To 	protect 	the 	individual 	subjected 	to 	custodial
interrogation, the Court has directed law enforcement to advise the individual of his or her rights
to silence and to counsel before questioning can begin.60 In Edwards v. Arizona,61 the Supreme
Court ruled that all custodial questioning must cease whenever the person unequivocally asserts
his or her Fifth Amendment right to counsel.62 	Indeed, questioning may continue only after
counsel has been provided or the person, having received the Miranda advisement, initiates further
communication with law enforcement.63 	The right to counsel during custodial interrogation is
grounded in the Constitution64 and is implicated whenever the person is said to be in Miranda
custody.65 	Conversely, the Edwards rule does not apply when the person is not in Miranda
custody.66 Thus, un-coerced, free, and voluntarily responses to police questioning do not violate
the Edwards rule, even after a desire for counsel is expressed, when the person is not in Miranda
custody.
58 384 U.S. 436 (1966).
59 New York v. Quarles, 467 U.S. 649, 654 (1984) (citing Miranda, 484 U.S. at 460-61, 467).
60 Id.
61 451 U.S. 477 (1981).
62 Id. at 484-85.
63 Id.
64 Dickerson v. United States, 530 U.S. 428, 444 (2000).
65 See, e.g., Howes v. Fields, 132 S. Ct. 1181, 1189 (2012) (“As used in our Miranda case law,
‘custody’ is a term of art that specifies circumstances that are thought generally to present a serious danger
of coercion.”).
66 Cf. United States v. Hines, 963 F.2d 255, 256 (9th Cir. 1992) (per curiam) (“It is well established
. . . that the Fifth Amendment right to counsel under Miranda does not vest until a defendant is taken into
custody.”).
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The Supreme Court has defined “custodial interrogation” as “questioning initiated
by law enforcement officers after a person has been taken into custody or otherwise deprived of
his [or her] freedom of action in any significant way.”67 	The Miranda test for custody is
objective.68 Evaluation of a Miranda custody claim requires: (1) an inquiry into the circumstances
surrounding the interrogation; and (2) a determination of whether a reasonable person in those
circumstances would have felt free to terminate the interrogation and leave.69 The ultimate inquiry
“is simply whether there is a formal arrest or restraint on freedom of movement of the degree
associated with a formal arrest.”70 Courts must weigh all of the circumstances surrounding the
interrogation and decide how a reasonable person in the defendant’s position would perceive his
or her circumstances.71 	The subjective views of the interrogating officer or the person being
questioned do not control.72 Factors to be considered include the location of the questioning,73 the
duration of the questioning,74 statements made during the interview,75 the presence or absence of
physical restraints during the questioning,76 and the release of the interviewee at the end of the
interview.77
In the present case, Jafari submitted to three audio recorded non-Mirandized
interviews with Terry and Allison and one video recorded Mirandized interview with Ormberg
67 Miranda, 384 U.S. at 444.
68 Yarborough v. Alvarado, 541 U.S. 652, 663 (2004) (quoting Stansbury v. California, 511 U.S.
318, 323 (1994) (per curiam)).
69 Thompson v. Keohane, 516 U.S. 99, 112 (1995).
70 Yarborough, 541 U.S. at 662 (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per
curiam)).
71 Id. at 663 (citing Stansbury, 511 U.S. at 322).
72 Id. (citing Stansbury, 511 U.S. at 323).
73 Howes v. Fields, 132 S. Ct. 1181, 1189 (2012).
74 Id.
75 Id.
76 Id.
77 Id.
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and Clark.78 The Court has listened to the recordings in their entirety and nothing occurred during
the various interviews that would cause a reasonable person in Jafari’s position to conclude that
he could not terminate the interview and leave.
At the outset of each interview, including the final Mirandized interview, the
officers expressly told Jafari that he was free to leave at any time and that he was under no
obligation to answer any questions. 	Each interview was conversational in tone and, while the
interviewing 	officers 	were 	sometimes 	skeptical 	of 	Jafari’s 	answers, 	their 	demeanor 	and
questioning throughout was respectful and polite. Jafari was never restrained at any time during
the interviews. Indeed, the only limitation placed on him was the prohibition that he not return to
the apartment during the search. Even then, the officers secured a chair for him to sit in while he
waited in the hallway for the search to be completed. All of these facts mitigate against a Miranda
custody determination. The interviews were not lengthy and, in any event, Jafari elected to remain
at the scene for the duration of the search.
The only factor that weighs in favor of a Miranda custody determination is the fact
that Jafari was arrested at the conclusion of the interview with Ormberg and Clark. But there is
nothing about that fact to suggest that Jafari was in Miranda custody at any time during his
conversations with Terry and Allison. 	Under these circumstances, this Court readily concludes
that Jafari was not in Miranda custody and, for that reason, the Edwards rule does not apply.
78 See supra n.54.
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B. 	The Sixth Amendment Right to Counsel has No Application
Jafari, without briefing or citation to authority, also grounds his right to counsel
suppression claim in the Sixth Amendment.79 	But Edwards is not a Sixth Amendment case.80
More importantly, the Sixth Amendment right to counsel does not attach until “at or after the
initiation of adversary judicial criminal proceedings – whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment.”81 	Thus, in this case there is no
basis for Sixth Amendment claim because, at the time of the interviews, formal charges had not
been initiated against Jafari. 	Accordingly, the Sixth Amendment does not provide a basis for
barring admission of Jafari’s statements.82
V. 	CONCLUSION
Based on the foregoing analysis, this Court respectfully recommends that the
District Court, upon independent review, deny the motion to suppress at Docket No. 39.
DATED this 14th day of July, 2016, at Anchorage, Alaska.
/s/ Kevin F. McCoy
Kevin F. McCoy
United States Magistrate Judge
Pursuant to Fed. R. Crim. P. 59(b)(2) 	and 	D. Alaska Loc. Mag. R. 6(a), a party
seeking to object to this final finding and recommendation shall file written objections with the
Clerk of Court no later than the CLOSE OF BUSINESS on July 28, 2016. Pursuant to Fed. R.
Crim. P. 59(b)(3), objections will be considered first by the District Court Judge, who will then
accept, reject, or modify the recommendation, or resubmit the matter to the Magistrate Judge for
additional consideration. Failure to object to a magistrate judge’s findings of fact may be treated
79 Docket No. 39 at 1.
80 Edwards, 451 U.S. at 480 n.7 (“We thus need not decide Edwards’ claim that the State deprived
him of his right to counsel under the Sixth Amendment . . . [because] the Sixth Amendment right to counsel
arises whenever an accused has been indicted or adversary criminal proceedings have otherwise begun[.]”).
81 United States v. Harrison, 213 F.3d 1206, 1209 (9th Cir. 2000) (quoting Kirby v. Illinois, 406
U.S. 682, 689 (1972)).
82 McNeil v. Wisconsin, 501 U.S. 171, 175-76 (1991).
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as a procedural default and waiver of the right to contest those findings on appeal. 	Miranda v.
Anchondo, et al., 684 F.3d 844 (9th Cir. 2012). The Ninth Circuit concludes that a district court
is not required to consider evidence introduced for the first time in a party’s objection to a
magistrate judge’s recommendation. 	United States v. Howell, 231 F.3d 615 (9th Cir. 2000).
Objections and responses shall not exceed five (5) pages in length, and shall not merely reargue
positions presented in motion papers. Rather, objections and responses shall specifically designate
the findings or recommendations objected to, the basis of the objection, and the points and
authorities in support. Response(s) to the objections shall be filed on or before the CLOSE OF
BUSINESS on August 4, 2016. The parties shall otherwise comply with provisions of D. Alaska
Loc. Mag. R. 6(a).
Reports and recommendations are not appealable orders. 	Any notice of appeal
pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court’s judgment.
See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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