Opinion
Case No. 6:19-mj-00068-JDP-1
01-12-2021
UNITED STATES, Plaintiff, v. WILLIAM MATTHEWS PENNY III, Defendant.
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS ECF No. 16 ORDER DENYING DEFENDANT'S MOTIONS TO STRIKE ECF Nos. 22, 34
William Matthews Penny III ("defendant") faces charges of violating 36 C.F.R. §§ 2.35(c) and 2.34(a)(1) while in Yosemite National Park. ECF No. 1. In three pretrial motions, defendant moves: (1) to strike the testimony of United States Park Ranger Steven Isch ("Ranger Isch"), alleging both an inability to conduct effective cross-examination and a violation of the government's discovery obligations, ECF Nos. 22, 34; and (2) to suppress statements made by defendant to Ranger Isch, ECF No. 22. This court now denies defendant's motions to strike and suppress.
I. BACKGROUND
On September 25, 2019, the United States filed a criminal complaint against defendant, alleging that, while visiting Yosemite National Park, he had engaged in fighting, threatening, or violent behavior and had been under the influence of alcohol to a dangerous degree, thereby violating 36 C.F.R. §§ 2.35(c) and 2.34(a)(1). ECF No. 1. According to the complaint, a group of rangers, including Ranger Isch, were dispatched to the Camp 4 tent campground following a report of an intoxicated man threatening campers. Id. at 1. When the rangers arrived at the scene, bystanders directed them to defendant, who "was standing near a picnic table and was swaying badly and having difficulty maintaining his balance." Id. Ranger Isch "asked [defendant] to sit down at the picnic table to avoid falling over," and defendant complied. Id. Ranger Isch then asked defendant a series of questions, and defendant stated that he had "consumed an entire bottle of whiskey" and "admitted to getting into some type of altercation with visitors in [a] neighboring campsite." Id. at 2. On July 28, 2020, defendant moved to suppress these statements, arguing that they had been elicited during custodial interrogation in violation of Miranda v. Arizona, 384 U.S. 436 (1966). ECF No. 16. On August 28, 2020, the court held a hearing to resolve the Miranda issue, and Ranger Isch testified via Zoom.
On the eve of the hearing—August 27, 2020—the government disclosed an email from Ranger Isch dated November 27, 2019, stating that "[t]here was body cam footage but it may have been lost . . . ." See ECF No. 35 at 1-2. In the email, Ranger Isch stated that some video recordings had been deleted when a new video recording system was implemented. See id. Defense counsel did not question Ranger Isch about the missing video during the suppression hearing. See ECF No. 32. However, following Ranger Isch's testimony, defense counsel stated that an adverse inference might be warranted due to the loss of the video. See id. at 67-71.
On August 31, 2020, the government disclosed an email from Ranger Isch dated that same day, stating, "I never had a body camera until we transitioned to Digital Ally, which appears to have been a few weeks after this arrest." See ECF No. 35 at 2. Then, on September 2, 2020, the government submitted declarations that provided additional information about the transition referenced by Ranger Isch, namely a changeover by the National Park Service from one bodycam vendor (VieVu) to another (Digital Ally). See ECF Nos. 18, 19, 20. Thus, it appeared that the email shared by the government just before the hearing had painted an inaccurate picture of certain facts.
On September 3, 2020, defendant moved to strike Ranger Isch's testimony, arguing that defendant had been denied an opportunity to cross-examine Ranger Isch effectively because Ranger Isch had used a copy of his arrest report while testifying. See ECF No. 22. On October 9, 2020, defendant filed a second motion to strike Ranger Isch's testimony, this time arguing that the government had violated its discovery obligations by failing to disclose the absence of body camera footage that contradicted Ranger Isch's initial statements. See ECF No. 34. Based on the disclosure of email communications following the initial hearing and defendant's arguments raised in his motions to strike, the court offered defendant the opportunity to re-examine Ranger Isch. ECF No. 41. On November 24, 2020, defendant asked to re-examine Ranger Isch, ECF No. 42, and the court held a hearing on December 17, 2020, during which both defendant and the government questioned Ranger Isch about the lack of bodycam evidence and related email communications.
II. ANALYSIS
First Motion to Strike
The parties disagree on the appropriate framework for evaluating the first motion to strike. Defendant sees the issue as one of confrontation, arguing that "the presence of the report denied the defendant the opportunity for a full and fair cross examination" in violation of the Sixth Amendment. ECF No. 22 at 2. The government sees the issue as one of evidence law. See ECF No. 27 at 3. No matter the framework, defendant's motion fails.
The Supreme Court and the Ninth Circuit have not addressed the applicability of the Confrontation Clause in pretrial hearings, and lower courts are divided. See Christine Holst, The Confrontation Clause and Pretrial Hearings: A Due Process Solution, 2010 U. ILL. L. REV. 1599, 1613-14 (2010). However, even if the Confrontation Clause applies, it was not violated. In general, "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam) (emphasis in original); see also Mattox v. United States, 156 U.S. 237, 242-43 (1985) (noting that the Confrontation Clause generally precludes the use of out-of-court statements "in lieu of a personal examination and cross-examination of the witness").
Here, defendant had more than an adequate opportunity; he cross-examined the witness in two separate hearings. In the first hearing, defendant questioned Ranger Isch at length, in an exchange covering fifteen pages of the record. ECF No. 32 at 36-50. I am unpersuaded that the ranger's possession of his arrest report while testifying at a pretrial hearing via Zoom denied counsel the opportunity for effective cross-examination. Significantly, defense counsel knew at the time of cross-examination that Ranger Isch had at least some degree of access to his arrest report during his testimony, and defense counsel could have questioned him about it. Insofar as defendant's argument rests on the importance of "attacking a witness's memory," see ECF No. 22 at 3, the second hearing gave defendant the chance to do so.
At the second hearing, Ranger Isch testified primarily about his misremembering the reasons for the absence of the bodycam evidence.
As for the rules of evidence, there might again be some question as to their applicability. See United States v. Brewer, 947 F.2d 404, 408 (9th Cir. 1991) ("[T]he Federal Rules of Evidence are applicable to motion to suppress evidence proceedings."); but see Fed. R. Evid. 104(a) ("The court must decide any preliminary question about whether . . . evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege."), 1101 (providing that the Rules apply in all "criminal cases and proceedings," but listing as an exception a court's "determination, under Rule 104(a), on a preliminary question of fact governing admissibility"); United States v. Matlock, 415 U.S. 164, 173-74 (1974) ("That the same rules of evidence governing criminal jury trials are not generally thought to govern hearings before a judge to determine evidentiary questions was confirmed . . . when the Court transmitted to Congress the proposed Federal Rules of Evidence."). But even if the rules apply, they were not violated.
Rule 612 allows a witness to refresh his or her recollection with a writing. At the first hearing, the court allowed refreshment at the government's request, permitting Ranger Isch to consult his arrest report when he could not remember the precise campsite where he encountered defendant. ECF No. 32 at 26-27. Defense counsel objected and requested confirmation "that we're all looking at the same document." Id. at 27. Once that was confirmed via the incident report number, defense counsel dropped the objection, noting his belief that "we're all looking at the same paperwork." Id. at 28. There was no inherent error or idiosyncrasy, contrary to defendant's suggestion, in "the witness having his report and other materials available to him in hard copy." Id. at 67. A trial court "has wide limits of discretion in its decisions to permit the prosecution to refresh the memory of a witness," a discretion that is abridged only in the face of "clear injustice." United States v. Mkhsian, 5 F.3d 1306, 1313 (9th Cir. 1993) (quotations and citations omitted). The court agrees with the government that "it is neither unusual nor improper" for an officer to refresh his recollection of specific details using his arrest notes. See United States v. Baker, 424 F.2d 968, 970 (4th Cir. 1970). The fact that the witness consulted his own hard copy of the arrest report during the Zoom hearing, subject to confirmation that everyone was looking at the same document—instead of the government using Zoom's screenshare function to display the report to everyone—is perhaps a minor, COVID-driven departure from usual practice, but it is not a "clear injustice."
It might also be significant that defendant did not raise his objection, as currently framed, during Ranger Isch's testimony.
Moreover, the evidence shows that Ranger Isch testified from his memory and did not merely recite his report. See ECF No. 27 at 4. Much of Ranger Isch's testimony at the first hearing concerned issues not addressed in the arrest report—such as the duration of his interaction with defendant and the specific words he used—and consulting the report could not have provided a basis for his answers. The record lacks other evidence indicating adherence to the report—such as pauses to read or mirroring language—and instead suggests reliance on memory. Any "isolated instances" in which Ranger Isch might have glanced at his report, see Mkhsian, 5 F.3d at 1313, do not provide a basis for striking his testimony.
Second Motion to Strike
In the second motion to strike, defendant argues that the court should strike Ranger Isch's testimony because of the government's alleged failure to comply with the Jencks Act and Federal Rules of Criminal Procedure 26.2, and also because of alleged violations of the government's obligations under Giglio v. United States, 405 U.S. 150 (1972), and of defendant's due process rights, both as to the evidentiary issues raised in the motion and cumulatively for all issues discussed in this order.
Rule 26.2 applies to suppression hearings. Fed. R. Crim. Pro. 12(h).
As an initial matter—and as defendant seemed to concede at oral argument—there is no violation of the Jencks Act or Rule 26.2 where, as here, the central issue is the non-existence of a video, rather than failure to disclose one. Cf. United States v. McDaniel, 17 M.J. 553, 554 (A.C.M.R. 1983) (holding that blank tapes that did not contain recorded testimony were not statements under the Jencks Act and that the government could not produce what never existed).
This leaves defendant's arguments based on Giglio and on his fundamental due process rights. See ECF No. 34 at 5-6. Defendant's argument seems to be based on a claim that, had he known that Ranger Isch's 2019 email was inaccurate, he could have cross-examined Ranger Isch more effectively during the hearing on August 28, 2020. However, based upon these concerns raised in defendant's second motion to strike, the court permitted defendant to re-examine Ranger Isch, and even to conduct a re-cross during the re-examination hearing. Therefore, defendant was able to rectify any detrimental impact created by the initial lack of timely disclosure. At this point, there is no reasonable basis to conclude that any limit on defendant's ability to cross-examine effectively at the first suppression hearing would impact the outcome of trial. Therefore, there has been no violation of defendant's due process rights. See Giglio, 405 U.S. at 154-55.
The parties do not address whether the government might have fallen short of its discovery obligations under Local Rule 440(a) in failing to disclose Ranger Isch's email communications within fourteen days of arraignment.
Motion to Suppress
An officer must give Miranda warnings before interrogating someone who has been "taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444. To determine whether a defendant was "in custody" for Miranda purposes, "a court must, after examining all of the circumstances surrounding the interrogation, decide whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." United States v. Kim, 292 F.3d 969, 973 (9th Cir. 2002). The inquiry is an objective one: the court must determine whether "the officers established a setting from which a reasonable person would believe that he or she was not free to leave." Id. at 973-74. The list of factors that make up "all of the circumstances" is not exhaustive, but can include "the language used to summon the individual," "the extent to which the defendant is confronted with evidence of guilt," "the physical surroundings of the interrogation," "the duration of the detention," and "the degree of pressure applied to detain the individual." Id. at 974.
While the circumstances here are unusual, the available evidence—including both the arrest report and Ranger Isch's subsequent testimony—does not suggest an objective degree of restraint associated with a formal arrest. See generally ECF No. 27-3 at 2-4; ECF No. 32. Ranger Isch used permissive, not mandatory, language; both the arrest report and Ranger Isch's testimony suggest that he "asked" defendant to sit out of a fear that defendant was too intoxicated to stand, and there is no evidence to the contrary. See ECF No. 27-3 at 3; ECF No. 32 at 30. The physical surroundings did not suggest restraint: Camp 4 is open terrain—moreso than many other campgrounds—and one could wander in any direction from any given campsite. ECF No. 32 at 24. Defendant was confronted by only two rangers, while others were "some distance away, certainly out of earshot." ECF No. 32 at 35. The interaction was in public, and the episode was brief: "just a few minutes," according to Ranger Isch. Id. No formal restraints were used. On the whole, the interaction was more akin to the routine traffic stops discussed by the Supreme Court in Berkemer v. McCarty, 468 U.S. 420, 435-41 (1984)—to which Miranda warnings do not apply—than to a formal arrest. Accordingly, defendant was not in custody, and his motion to suppress must be denied. ECF No. 16.
While determining custody for Miranda purposes is fact-specific, our result accords with how previous cases in our circuit have treated such questions in similar contexts. Like the initial interaction in United States v. Lehman—another Miranda case originating in Yosemite National Park—this is a case in which there "was nothing about the apparently very open and public location to suggest restraint or coercion." No. 6:11-MJ-00108-MJS, 2012 WL 662464, at *3 (E.D. Cal. Feb. 28, 2012). In Lehman, it was only after additional rangers arrived on the scene, after defendant was escorted away from his vehicle, and after rangers began searching the vehicle and found evidence of marijuana that an obligation to Mirandize the defendant arose. Id. And, like United States v. Basher—in which officers questioned a man at a dispersed campsite in a national forest and the Ninth Circuit held that he was not in custody—it does not appear that defendant's "movements were significantly curtailed." 629 F.3d 1161, 1166 (9th Cir. 2011).
Overall Effect
Finally, defendant has raised the issue of whether the cumulative effect of all of the errors raised in his evidentiary motions violates due process. Again, defendant fails to address whether this argument is applicable to suppression hearings, but it appears that such a due process violation can only be shown when multiple errors result in a "fundamentally unfair" trial. See United States v. Preston, 873 F.3d 829, 846 (9th Cir. 2017). As discussed above, any errors resulting from untimely disclosure by the government were rectified in the second suppression hearing. Since defendant was provided with the impeachment information concerning Ranger Isch's testimony on the use of body cameras and afforded a second opportunity to question Ranger Isch, and since the court has found no Miranda violation or foundation to strike with regard to Ranger Isch's referencing of a report, it is unlikely that these alleged errors would have a material impact on the ultimate outcome of this case, let alone such an outsized impact that it would render any subsequent trial "fundamentally unfair." See id.
For the foregoing reasons it is hereby ordered that:
1. defendant's motions to strike, ECF Nos. 22, 34, are denied; and
2. defendant's motion to suppress, ECF No. 16, is denied. IT IS SO ORDERED. Dated: January 12, 2021
/s/_________
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE