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United States v. VanWaart

United States District Court, N.D. Iowa, Western Division

April 10, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSHUA MICHAEL VANWAART, Defendant.

          REPORT AND RECOMMENDATION

          KELLY K.E. MAHONEY, UNITED STATES MAGISTRATE JUDGE.

         Defendant Joshua Michael VanWaart moves to suppress statements he made during a custodial interrogation (Docs. 31, 31-2), arguing that he unambiguously invoked his right to counsel by stating, “Well, I'd like to get my lawyer here so I don't do something wrong.” He also argues that any waiver under Miranda v. Arizona, 384 U.S. 436 (1966), was not voluntary because after officers read him his rights, they said that talking to them “can't hurt [him]” and suggested that by the time the court appointed an attorney, it would be too late for him to provide information to the officers that could constitute substantial assistance. The United States (the Government) resists the motion, arguing that VanWaart's request for counsel was equivocal and his Miranda waiver voluntary. Doc. 33. Because I find VanWaart unequivocally invoked the right to counsel, I recommend granting the motion to suppress (Doc. 31).

         I. BACKGROUND

         In May 2017, the United States Attorney's Office sought to speak with VanWaart as part of an ongoing federal drug investigation, and the court appointed counsel to represent VanWaart. Doc. 35 at 1-2. The United States Attorney's Office sent a letter to VanWaart's counsel, proposing an informal proffer session with VanWaart. Doc. 35 at 3-5. Although a proffer session was scheduled, VanWaart ultimately refused to provide any information. Doc. 35-1 at 3-4. I take judicial notice that his appointed counsel's representation was terminated shortly thereafter (Docket, 17-mj-142-KEM (N.D. Iowa)). See Fed. R. Evid. 201; Hood v. United States, 152 F.2d 431, 433 (8th Cir. 1946) (holding that the trial court “could . . . take judicial notice of its own records in the original case, including the docket entries”).

         A federal grand jury indicted VanWaart in October 2017 on drug and firearm charges, and a warrant issued for his arrest. Docs. 2, 3. Shortly before midnight on November 14, 2017, Sioux City, Iowa, police officer Dane Wagner (Officer Wagner) arrested VanWaart as authorized by the federal warrant, as well as other outstanding state warrants. He advised VanWaart of his Miranda rights and phoned Drug Enforcement Administration (DEA) task force officer Todd Peterson (Officer Peterson) to advise him that VanWaart had been arrested. Officer Wagner asked VanWaart if he was willing to talk to DEA agents at the police station, and VanWaart agreed. Officer Wagner took VanWaart to the police station and left him to be interviewed.

         VanWaart was given a bottle of water while he waited in an interview room. Around 2:00 a.m., Officer Peterson and two other drug task force officers entered the room.[1] An officer[2] quickly re-read VanWaart his Miranda rights and asked him if he understood. He said, “yeah, ” and when asked a second time, he nodded his head up and down. An officer told VanWaart that he had been federally indicted stemming from the same conduct they had tried to discuss during the attempted proffer session. When VanWaart heard the mandatory minimum for his charges, he became visibly upset. VanWaart asked what proof existed, and the officer responded, “if you don't want to talk to me and try to cooperate”-to which VanWaart interjected, “I do” -“then I'll just tell the U.S. Attorney's Office, well, he wants to see everything we got on him and his charges and everything before he wants to help me.” He continued:

By the time you do that, you're going to go into United States Marshals custody tomorrow, today. [Y]ou'll get a court-appointed attorney this afternoon after your initial appearance in federal court. So you'll get to see a United States magistrate judge. They'll read you your charges, your possible sentence, and your fine amount. Then you'll get an attorney, and then you can tell your attorney that you want to see all the discovery, and you can see all the discovery. But by that time, the United States attorney and us are done. . . . You'll get to see everything. That's fine. I got no qualms with that. That's your right.

         After a brief discussion about VanWaart eluding law enforcement in the past, the following exchange occurred:

Officer: You want to talk about it or what?
VanWaart: Can it help me?
Officer: Can't hurt you.
VanWaart: Can it help me? I gotta know that.
Officer: I'll tell you right now, you can't get a promise-any . . . cop that promises you anything is a . . . liar, right? There's two people that can promise you anything. It's a United States attorney or an attorney and a judge. All I can do is tell the United States attorney that, yep, Josh admitted it; Josh told me the truth; he cooperated fully. And in my experience-and I've been doing this a long time-the U.S. attorney usually gives you some benefit for that. I can't promise you shit. If you're going to sit here and ask . . . me for some type ...

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