United States v. Allen Donahue , 408 F. App'x 117 ( 2011 )

FILED
NOT FOR PUBLICATION JAN 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10004
Plaintiff - Appellee, D.C. No. 4:08-cr-01070-RCC-
CRP-1
v.
ALLEN MICHAEL DONAHUE, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted November 2, 2010
San Francisco, California
Before: GOULD and CALLAHAN, Circuit Judges, and KORMAN, Senior District
Judge.**
Defendant-Appellant Allen Donahue appeals the decision of the district
court to deny his motion to suppress incriminating statements he made while in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New Yorµ, sitting by designation.
federal custody. Because the facts are µnown to the parties, we repeat them only as
necessary to explain our decision.
I
Donahue claims that statements he made while in federal custody were
obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and that the
district court erred when it denied his motion to suppress those statements. We
review de novo a district court's decision to deny a motion to suppress statements
that may have been obtained in violation of Miranda. United States v. Rodriguez-
Rodriguez, 393 F.3d 849, 855 (9th Cir. 2005).
A waiver of Miranda rights must be voluntary, and it must be µnowing and
intelligent. Cox v. Del Papa, 542 F.3d 669, 675 (9th Cir. 2008). 'Whether the
waiver was voluntary is a mixed question of fact and law, which we review de
novo.' United States v. Amano, 229 F.3d 801, 803 (9th Cir. 2000); accord United
States v. Labrada-Bustamante, 428 F.3d 1252, 1259 (9th Cir. 2005). The crucial
inquiry into voluntariness is whether the police conduct was coercive. Derricµ v.
Peterson, 924 F.2d 813, 818 (9th Cir. 1990). The voluntariness of a waiver
depends on 'the absence of police overreaching, not on 'free choice' in any
broader sense of the word.' Colorado v. Connelly, 479 U.S. 157, 170 (1986).
2
Donahue offers no evidence that he was coerced into waiving his Miranda rights or
that the police overreached.
Whether a waiver of Miranda rights was µnowing and intelligent is a factual
question that we review for clear error. Amano, 229 F.3d at 803. Donahue
contends that he was so intoxicated on the day of his arrest that he could not fairly
be said to µnowingly and intelligently waive his Miranda rights and that his
confession was not 'the product of a rational intellect and a free will.' Gladden v.
Unsworth, 396 F.2d 373, 380-81 (9th Cir. 1968). The district court disagreed, and
found that Donahue was not so intoxicated that he could not µnowingly and
intelligently waive Miranda. Under the 'clear error' standard, if the district
court's account of the evidence is plausible in light of the entire record, we must
affirm even if we would have found differently. Husain v. Olympic Airways, 316
F.3d 829, 835 (9th Cir. 2002), aff'd, 540 U.S. 644 (2004). We have reviewed the
record, and we conclude that the district court's decision is not implausible or
clearly erroneous.
II
Donahue further contends that district court erred when it rejected the
findings and recommendation of the magistrate judge and, instead, denied
Donahue's motion to suppress without holding a separate, de novo evidentiary
3
hearing. The government argues that the district court did not reject the magistrate
judge's findings, but, rather, '[t]he district court . . . simply reached a different
legal conclusion based on the facts.' Appellee's Br. 23. We review de novo a
district court's decision not to conduct an evidentiary hearing when rejecting the
report and recommendation of a magistrate judge. United States v. Ridgway, 300
F.3d 1153, 1155 (9th Cir. 2002).
In Ridgway, we held that a de novo evidentiary hearing is required, not just
if the district court rejects the magistrate judge's findings of fact, but also if the
district court rejects the magistrate judge's credibility determinations. Id. at
1156-57. Here, the magistrate judge did not simply lay out undisputed facts and
draw a legal conclusion; rather, the magistrate judge identified 'two different and
irreconcilable versions of the facts,' and stated that the resolution of this 'factual
dispute' would resolve the motion. Excerpts of R. at 50. The magistrate judge
found that the government agent's testimony was uncorroborated and not as
credible as the testimony for Donahue. It is not clear from the record whether the
district court weighed the same facts and accepted the credibility determinations
that were made by the magistrate judge, but then determined that Donahue
voluntarily, µnowingly and intelligently waived his Miranda rights. We conclude
that it is more liµely that the district court believed the testimony of the
4
government agents and rejected Donahue's testimony that he was so drunµ that he
did not remember anything that day. The district court did not hold an evidentiary
hearing, which would have allowed him to maµe his own credibility determinations
and findings of fact. See Ridgway, 300 F.3d at 1155. If the district court made
credibility determinations, different than those made by the magistrate judge, or
rejected the magistrate judge's factual findings on the disputed record without an
evidentiary hearing, this was a violation of Donahue's due process rights. Id. at
1157.
III
The government argues that any violation of due process was cured by the
eventual trial, at which the district court had the opportunity to observe the
witnesses and maµe his own credibility determinations. To support this position,
the government relies on United States v. Hernandez Acuna, 498 F.3d 942 (9th Cir.
2007). There, we held that the 'denial of a motion to suppress may be sustained on
the basis of evidence presented at trial.' Id. at 945. In that case, trial was an
'instant replay' of the evidentiary hearing, and 'the judge had the opportunity to
do exactly what he would have done had he held an evidentiary hearing.' Id.Donahue urges us to distinguish Hernandez-Acuna because, in that case, 'there
[was] no question the parties and the court understood that suppression was on the
5
table; Hernandez-Acuna specifically asµed for the court to rule again.' Id.Moreover, Donahue contends that the trial here was not an 'instant replay' of the
evidentiary hearing because parts of the testimony given by the government's
witnesses at trial were different from what those same witnesses said at the
evidentiary hearing.
The government argues in substance that the differences between what the
government's witnesses said at the evidentiary hearing and what they said at trial
are not significant. It may be that the district court judge had the opportunity to
'see and hear [the witnesses'] live testimony and to observe their demeanor' and to
'evaluate their trustworthiness . . . for himself.' Id. However, it is not clear from
the record or the briefs whether the issue of suppression was still 'on the table' at
trial, as it was in Hernandez-Acuna. Id. The record does not show that the district
court contemplated the suppression motion during or after trial, or that Donahue
'specifically asµed for the court to rule again.' Id.We remand to the district court with a request that it answer the following
two questions:
1. Did the district court recognize during trial that it could change its
ruling on the suppression motion if the evidence so warrantedá
6
2. Was there anything in the presentation of evidence at trial that
would have caused the district court to reconsider the suppression
motion had it been asµed to do so during or after trialá
The panel retains appellate jurisdiction of this case and its present records
and files. Upon the order of the district court, this appeal will be re-submitted to
the panel for further proceedings, and the panel will maµe its ruling concerning the
potential applicability of Hernandez-Acuna in the light of the district court's
answers to these questions.
REMANDED.
7
FILED
United States v. Donahue, No. 10-10004 JAN 14 2011
MOLLY C. DWYER, CLERK
CALLAHAN, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
I would affirm under United States v. Hernandez-Acuna, 498 F.3d 942 (9th
Cir. 2007).
In both this case and in Hernandez-Acuna, (1) a magistrate judge presided
over an evidentiary hearing regarding the defendant's suppression motion; (2) the
magistrate judge recommended suppression; (3) the district judge rejected the
magistrate judge's recommendation (which arguably also included a rejection of
the magistrate judge's credibility findings) and denied the suppression motion
without holding a separate evidentiary hearing; and (4) the same district judge who
denied the suppression motion, went on to preside over the trial and to hear the
exact same witnesses who had testified in the evidentiary hearing before the
magistrate judge. The court in Hernandez-Acuna determined that any error had
been cured by the 'instant replay' at trial, and in my view, the same reasoning and
result applies here.
As in Hernandez-Acuna, here the district court was given all the tools
at trial to maµe an informed decision as to whether it should revisit its ruling on
the suppression motion. The witnesses were examined and cross-examined about
their detention of Donahue, and the district judge was able to see and hear the
witnesses' live testimony, observe their demeanor and evaluate their
trustworthiness. Although Donahue did not 'specifically asµ[] for the court to rule
again' on the suppression motion at trial, see Hernandez-Acuna, 498 F.3d at 945,
we stated in Hernandez-Acuna that 'judges can, and occasionally do, revisit their
pretrial rulings as a trial runs its course and testimony or exhibits are adduced that
put threshold decisions in a different light.' Id. In the absence of evidence to the
contrary, we should accept that the district judge recognized that he could revisit
his ruling on Donahue's suppression motion if the evidence at trial so warranted.
Accordingly, the district judge's decision not to revisit that ruling, in light of the
evidence presented at trial, need not be explored through the question-and-answer
procedure that the majority prescribes.1 I respectfully dissent.
1
I recognize that the Second Circuit engages in the practice of seeµing
supplementation of a record by issuing questions to the district court, while
retaining jurisdiction. See, e.g., United States v. Arenburg, 605 F.3d 164 (2d Cir.
2010); United States v. Jacobsen, 15 F.3d 19 (2d Cir. 1994). There may be times
when this practice is appropriate, but even so, it is not warranted on the facts of this
case.
2