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United States v. Holland

United States District Court, D. South Carolina, Rock Hill Division

September 14, 2016

United States of America, Plaintiff,
Howard James Holland, Jr., Defendant.


         Before the court is the Government's Motion for Reconsideration of the Court's Order Granting Defendant's Motion to Suppress (ECF No. 65), which the court DENIES for the reasons that follow.


         While Defendant Howard James Holland, Jr. (“Defendant”) was completing a quarterly sex offender registration at a local sheriff's office, the Federal Bureau of Investigation (“FBI”) executed a search warrant at his home. After he had completed the registration, law enforcement officers approached Defendant, notifying him that he could not return home until the search was completed, and asked to speak with him. Defendant agreed and was escorted to a closed conference room. After being advised of his constitutional rights, Defendant was presented with a “waiver of rights” form (“waiver form”), which reads, in part, “I am willing to answer questions without a lawyer present.” (ECF No. 47-1.) There is no dispute that Defendant initially refused to sign the waiver form and expressly told the officers that he would not sign the form.

         After Defendant refused to sign the form, an officer asked Defendant if the search being conducted at his home would uncover images of child pornography, and Defendant replied that it would. More than thirty minutes later, after being encouraged by officers, Defendant agreed to sign the waiver form. During several more hours of interrogation thereafter, Defendant made a number of incriminating statements. He was later arrested and indicted for violations under 18 U.S.C. §§ 2251(a), (e), 2252A(a)(5)(B), (b)(2). (ECF No. 29.)

         Defendant filed a Motion to Suppress (ECF No. 43) statements he made during the interrogation, and a hearing on the motion was held on April 19, 2016. At the suppression hearing, one officer testified that, during the interrogation, Defendant was informed that he was free to leave, while another officer testified that he could not recall whether Defendant was told that he could leave. (Id. at 9-10, 13, 69.) Three officers also testified that Defendant never asked to have a lawyer present. (Id. at 13, 69, 77.) Defendant, however, testified that, even before he was presented with the waiver form, he had told the officers that he had “nothing to say to [them] without a lawyer present . . . .” (Id. at 47.) He also testified that the officers never informed him that he was free to leave. (Id. at 48.)

         On several occasions during its cross-examination of Defendant, the Government attempted to introduce statements Defendant made during the interview that were documented in the FD-302 form[1] that was later provided to Defendant. (Id. at 51, 57.) Specifically, the Government sought to ask Defendant why, during the interview, he had justified his possession of child pornography during the interview. (Id. at 58.) When Defendant's counsel objected, the Government argued that its line of questioning was employed to impeach Defendant's credibility and that, under Fed.R.Evid. 104(d), evidence attacking Defendant's credibility was permitted. (Id. at 52-53.) The court understands that the Government sought to introduce evidence regarding the merits of the case, such as evidence that Defendant had, in fact, possessed child pornography. (See Id. at 53, 60-61.) At a subsequent hearing on the instant motion for reconsideration, the Government confirmed that, although its line of questioning was for the purpose of impeachment, the questions also went to the merits of the case as the court has surmised. (See ECF No. 65-1 at 7 (complaining that “the Government was prohibited from cross examining Defendant on his own statements made during the course of the interview, including statements made regarding the underlying offense, which the Government submits is probative of credibility”).) Ultimately, the court limited the Government's cross-examination of Defendant, preventing questions regarding the FD-302 that constituted inquiries into the facts underlying the alleged offenses.

         In its July 1, 2016 Order granting Defendant's motion to suppress (ECF No. 60), the court first found that Defendant had been in custody prior to making the statements he sought to suppress. In reaching this finding, the court relied almost exclusively on testimony from the suppression hearing but, for the most part, did not attribute the testimony to any particular witness. Only once in the order did the court attribute any of the testimony on which it relied to Defendant (id. at 6 n.2), but, reviewing the transcript of the hearing, all the other testimony on which the court relied can be attributed to the Government's witnesses, and the Government has averred that it would not challenge the testimony of its own witnesses on these points.

         The court next determined that Defendant had invoked his right to counsel for two independent reasons. First, the court found that “it is not unreasonable to interpret Defendant's initial resistance to waive his right to counsel, via his signature, as an invocation of his right to counsel.” (Id. at 7 (citing United States v. Johnson, 400 F.3d 187, 194-97 (4th Cir. 2005); United States v. Scott, 693 F.3d 715, 719 (6th Cir. 2012)).) Second, the court credited Defendant's testimony that “he verbally asserted his right to counsel at the beginning of the interrogation even before he refused to sign the waiver of rights form.” (Id. at 8.)

         Because the court found that Defendant was in custody and had invoked his right to counsel prior to being questioned, the court granted the motion to suppress the statements at issue. (Id. at 3, 10 (citing Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)).) Thereafter, the Government filed the instant motion for reconsideration, arguing that the court erred by (1) concluding that Defendant's initial refusal to sign the waiver of rights could constitute an invocation of the right to counsel and (2) preventing the Government from impeaching Defendant's credibility by introducing evidence that went to the merits of the underlying offense charged, which undermines the court's determinations regarding whether Defendant was in custody and whether Defendant expressly invoked his right to counsel.


         The Federal Rules of Criminal Procedure have no provisions governing motions for reconsideration. However, the rules and federal case law do recognize such motions can be proper in a criminal setting. See Fed. R. Crim. P. 57(b) (“A judge may regulate practice in any manner consistent with federal law, these rules, and the local rules of the district.”); United States v. Dieter, 429 U.S. 6, 8 (1979) (“The fact that appeals are now routed to the courts of appeals does not affect the wisdom of giving district courts the opportunity promptly to correct their own alleged errors.”); United States v. Randall, 666 F.3d 1238, 1241 (10th Cir. 2011) (“Although the Federal Rules of Criminal Procedure do not authorize a motion for reconsideration, ‘motions to reconsider in criminal prosecutions are proper.'” (quoting United States v. Rollins, 607 F.3d 500, 502 (7th Cir. 2010))). The court then looks to the Federal Rules of Civil Procedure for guidance. A court may alter or amend a judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure if the movant shows (1) an intervening change in the controlling law; (2) new evidence that was not previously available; or (3) a clear error of law or a manifest injustice in the court's decision. Robinson v. Wix Filtration Corp., 599 F.3d 403, 407 (4th Cir. 2010). In general, reconsideration under Rule 59(e) “is an extraordinary remedy that should be used sparingly.” Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (quoting Charles Alan Wright et al., 11 Federal Practice and Procedure § 2810.1 (3d ed. 2012)).

         The Government makes no reference to the legal standard under which the court should evaluate its motion. Nonetheless, the court notes that the Government has not contended that there has been any change in law, that any new evidence has been discovered, or that suppression of Defendant's statements wrought a manifest injustice. Rather, it appears that the Government argues only that the court committed legal errors in determining that a refusal to sign a waiver could constitute a valid invocation and in preventing its line of questioning on cross-examination. Thus, the Government's contentions fall under the clear-error-of-law portion of Rule 59(e)'s third prong.

         A. Refusal to sign as invocation of right to counsel

         To determine whether a defendant invoked his right to counsel, a court considers whether the defendant took any action that “can reasonably be construed to be an expression of a desire for the assistance of an attorney.” McNeil v. Wisconsin, 501 U.S. 171, 178 (1991). Such an action must amount to a clear and unequivocal invocation, such that, under the circumstances, a reasonable police officer would understand the defendant to be requesting to speak to an attorney. See Davis v. United States, 512 U.S. 452, 459 (1994). The court concluded, as a legal matter, that a defendant's refusal to sign a waiver form can constitute a valid invocation of the right to counsel under certain ...

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