one five one two nine nine usa vs calvin crompton oral argument fifteen minutes per side mr crawley for the rested its case because the statement had been made after a miranda warning that did not contain the so called fifth warning that a suspect can seize questioning any time that courts including this one have rejected repeatedly as not required by miranda the district court then rebuffed the prosecutor's request to brief or argue this issue and simply said that if she would like she could have an additional five minutes to amend your closing the district court compounded this error when it suppressed  prompted the defendant's second inculpatory statement five months after trial despite the fact the defendant did not challenge the miranda warnings given before the second statement or reference at all except in a passing footnote in his motion for judgment of acqui the district court surprised the government and the defendant in february when it suppressed the second statement and then concluded that without that stuck second statement it is that second statement the one that the judge said to the defense attorney you're not challenging this waiver is is no longer a concept per sotto in the changes to rule twelve but i think here where you're given the opportunity to actually address the issue i think that's akin to an abandonment which would then waive the ability to raise that after the fact but here this is not even a situation where he did raise this this is all on the district court the district court raised this issue unprompted and then suppressed it so it's beyond without any briefing or argument from the parties respond bought a little bit where you just said it's true that after the criminal rule twelve amendments they don't use the word waiver anymore that doesn't mean you can't waive something i mean you're allowed to have the judge say ok i i heard there was some talk about a motion to suppress is there going to be a motion to suppress no there is not we've thought about it we did an analysis of it we're not going to bring a motion that's a waiver knowing voluntary and a story i would agree your honor in fact i think that here where the statements were admitted on day two of trial in the defendant turns around on day three of trial after the government had rest its case no less but a day later and then turns around and tries to suppress something that he's already said he has no objection to i would also gree that that is a waiver so that's dealing with the first statement is that right will frankly your honor he did not object to the admission of either statement when they came in when they came in that's correct ok but but when you come to the day and trial when the defendant's counsel does start to talk about the problem that is the first statement am i right or the defendant yes your honor the defendant only raised an issue with respect to the miranda warnings on the first statement there was never any issue with respect to the second miranda warnings right except on the part of the district court and again as i said no neither party knew this was coming so i'm sort of curious you know in terms of waiver issues what if a defense counsel says in response to district judge are you going to  to raise an issue with regard to a particular statement and the defense counsel says no i'm not going to raise an issue and then defense counsel suddenly at some point in time reads a definitive supreme court decision that says that there was this was an absolutely wrong thing to allow this statement and you're saying basically the defendant has no rights whatsoever is that right your honor i wouldn't go that far i think then the senate would have the right perhaps in  twenty five to allege ineffective assistance of counsel that's the vehicle that the defendant would have certainly on if you think back to rule twelve i mean this has an important policy implication the government cannot change its its position in trial it cannot appeal an erroneous ruling like this for example and the only reason the only way this court can address what is clearly erroneous in fact the defendant concedes that the court was wrong about the so called fifth warning this court can only remedy the situation if you agree that the second statement should not have been suppressed reinstate that and then address the ruling on the motion for a new trial and and and here it's just flat wrong there is no question that this court had said this morning is not required and that was the only basis for the district court's ruling to suppress that first statement you know i you know i don't know i don't know if i agree with your answer to judge morse question i'm not i'm not i don't think i know the answer to it but i mean i think the one thing that's important i where you just forget you just don't do it and there's a lot more discretion about that during trial in the course of playing a review later but i don't really know the answer to the question you know halfway through trial the the definitive case comes down i can imagine a lot of judges frankly having authority to say and i realize you waived that and i realize why you're now raising it and i can understand why you're doing what you're doing and i'm going to allow the argument to be  made i don't know the answer to that but i'm not one hundred percent sure you're right about it either i'm not sure your honor this is certainly something we debated the implications of rule twelve and how this should proceed in the context of a trial and and i think the important thing here is from a policy perspective to suppress evidence midstream is certainly something that should happen in rare circumstances there will be situations where perhaps it should happen but it should happen minimally because of the inability for there to be any recourse on the part of the government but here because the judgment of acquittal was granted we have the power to be booking certainly at this whether the judgment of acquittal was properly granted certainly your honor the first question and that only implicates the second statement so let's focus on that yes your honor certainly the crux of this is whether or not this court agrees the second statement should have been suppressed and again procedure regularities and whether or not a court ever has the authority to do this unprompted and certainly whether to do this without notice to the parties the issue is did the did the miranda warning is given and i would note these were the third set of miranda warnings given that day did those miranda warnings adequately convey the substance of miranda and then did the defendant voluntarily waive his miranda rights and then did he knowingly intelligently do with the adequacy of the warnings this is an issue that's reviewed de novo and i think judge actually mentioned this last year in the case this is an issue review de novo we're looking at whether or not from a common sense reading the warnings that were provided to the defendant comprehensively conveyed miranda and here will certainly be focusing on this more heavily in the companion appeal but here we have a situation where the a t f agent is reading from the written waiver form he's reading through his rights as i know this is the third time he's gone over the speed reading to the second and third time he's reading through the rights and he says anything you say can and will be used against you in court the defendant interrupts as will be going to court and the a t f agent says no i'm just saying in general anything you say can and will be used against you in court this was not a blanket assertion that you will never be prosecuted that you will never go to court a common sense reading of this is simply the a t f agent saying these are your rights i'm telling you what they are i can't talk to you until i read all these to you and then you agree you understand them in a way of them and that's very clear from the audio recording what about i i was just listening to that tape and what about the creature that the defendant was constantly asking to see the search warrant and the agent was constantly saying hey that's a different thing and it's in the back room and really essentially denying the defendant the ability to see the search warrant until quite late this interaction but i think there are two portions that your honor in the district court held that that was coercion that he was dangling the carrot of the warrant in order to show that in to answer your question the first issue is the defendant was trying to distinguish between the warrant and the waiver and there were a lot of questions back and forth he was concerned that if he signed that that would preclude his ability to challenge the warrant when the a t f agent said no this was this form is just so we can talk about what's going on that's when he waived returning to the coercion issue the a t f agent made very clear i don't have a copy i'll i'll get a copy for you i don't have a copy i'm not required to show it to you at this time just at some point today but i'll get a copy for you and mr compton's very persistent us as i'm sure you have noted by now a nd at some point the agent then stops everything and says look you know to another officer can you go get a copy of the so i can show him and then he walks through the exact morning when it was for this is not a situation where the agent was trying to coerce him into waiving his right keep in mind at this point he's already been talking for some time there was a search warrant given i can't remember being clear about this search warrant shown to crompton before crammed inside the waiver or after it was after your honor it was i would say a good two thirds of the way through that audio recording that's that's correct you are the district court found that to be coersion but then again the district court also found that the agent coursed him by taking him out into the cold when there weren't enough law enforcement personnel to monitor all the people and all of the people were being kept outside on the front steps it was not that it was cold and he was being taken out there it was that it was early october in michigan and a crisp fall morning that's not coercion and if we look at how this court is to analyze both whether or not miranda is voluntarily waived or will or whether it's the waiver is knowing and intelligently made we look at the totality of circumstances and here porton keep in mind this is a thirty five year old man with an extensive  record of encounters with the criminal justice system he was at this point i believe a seven time convicted felon five of them for drugs there's no question that he would have known his rights that does not preclude that doesn't mean he doesn't need to hear them every time but there's no question he would have known his rights and in fact if we look at how he responds to the agent this makes crystal clear that he knew both the cause of the his rights and the consequences of waiving them because calvin crompton answered  agent's questions repeatedly except when it came to the issues of drugs despite and in this house let's let's recall that there was heroin cocaine crack cocaine and marijuana found all throughout the house digital scales back packaging materials and so forth any time the agent asked about the amount of weight just interrupt you but i just want to make sure i get one thing straight yes as i understand on the second statement that relates to the rule twenty nine if you're right about the second statement your position is the why why is the first statement in the new trial motion still relevant i mean what would be the grounds for i mean we would we would if you did if you make it the rule twenty nine wouldn't necessarily bheki the new trial order as well then i'm not even sure i understand why we talk about the first statement your honor i'm struggling with well perhaps the answer is that you simply vacate the order for the new trial and don't turn to the first motion i certainly think the first most in motion i would the first my second the first statement is relevant at all not only did the he would agree if the rule twenty nine acquittal order i know this is her argument but if the government's right about that it would seem to follow the new trial motion order would have to be vacated as well and then there's no reason to get to the first statement that's my position right yes so i won't spend much time with that other than to say that you know there was no prejudice the jury found mr clinton guilty of both counts and you know irrespective of whether the judge made the improper ruling or net it didn't affect the verdict with regard to the second miranda warning the you know the bottom line on the the judgment of acquittal is the fact that mr crumpton was most clearly confused about what his rights were in the first place is the court noted he was constantly asking to see the of looking up the historical weather patterns for detroit and october the eighteenth of two thousand and thirteen and i found that it was forty one degrees in the morning of october the eighteenth when this raid took place the raid took place about seven thirty in the underwear on was a clear morning and have any clothes on he did have clothes on your honor yes yes all of the individuals that were brought it did have clothing but they were properly dressed because they were in bed so he was taken out to the curb and then as the agent question mr crumpton it seems like as he got closer to mr crumpton thinking about signing his waiver he would take him inside the house where it was warm when it got to the point where he wasn't going to give him any further information is kept asking for the search when i to see a copy the morning want to see a copy the warrant he would take him back outside on the curb where it was cold so there is something to what the judge concluded with regard to the the little game or psychological coercion or whatever you want to call it that it was forty one degrees forty one degrees yes during the hour between seven o'clock in the morning correct people in detroit were a little tougher than that we are tough however that happens to be the coldest morning of the fall up to that point the graph went like this down for the seven o'clock in the morning and he changed so it was a it was one of the first cold days and i think it takes a while for skin to thicken up up north but not event that was the case he was taken out and mr to the voluntary and knowing waiver of his rights he didn't know what he was or what waiving he wanted to protect his rights he didn't know what his rights were and i think the supreme court has even said you know as long as a defendant asserts his rights certainly something that he doesn't have to be able to articulate to each and every right and i think that's what crampton was doing when he was attempting to say i don't want to say i don't want to give up my rights but yet he's be encouraged by this officer of go had this are right this is ok but then then crumpton signs the waiver miranda rights and then the agent greg i guess its name starts asking crompton questions and crompton does not answer any questions that have to do with drugs but does answer this question that leads to this conviction on the gun the ammunition charge so why doesn't that show that crampton actually fully understood what his rights were because he didn't answer any of the drug quality truck quality questions and greg keeps pushing and pushing and pushing for well how much was it how much was it worth how much about the heroin how much about this you know and each one crompton is refusing to answer  i think that just underscores my position that crampton actually did indicate that there were bullets in the house not recognizing the fact that the admission regarding the bullets was much more detrimental to him than  because the threat was that you know if you don't confess up here we're going to go it's not your girlfriend also has a well but they said they asked him whether his girlfriend was involved with drugs and he said no she didn't have anything to do with the drugs so he knows how to protect his girlfriend and that way he could have equally said she doesn't have anything to do with ammunition he did he did admit that there was a mirror won the house he said you might find some marijuana back there and again i know this goes to the next argument but this and live you basically said look you know i'm not beating you up he was a kind of a further explaining they were into warnings and saying we're not doing this let's be friends you know kind of dropping the government have any chance to make its arguments  to the district judge before the district judge ruled on this not with regard to the the second statement my argument in the brief was that they could have file a motion for reconsideration the local court rule says if there's any but why shouldn't your client be waiving any right to object to the second statement when there were the comments at trial that indicated i sensed the second statement i mean well you're on a wavier whoever's a pretty difficult remedy for the clay and i are at least i should say a burden for the clay into it it just appeared that the trial counsel both for with regard to the first statement and the second of the trial court's ruling the trial court heard this for the first time both on the first statement and the second statement after he examined the second statement there were two motions to suppress and there were several other attempts on the part of mr crump and to have additional bases for motions to suppress that were rejected not only by counsel but the court didn't permit him to in court basically said well if you've got more grounds you know bring up an appeal but i'm not going to lie to bring these additional grounds for motions to suppress so there was this constant conflict between mr crump counsel the first counsel was actually replaced in the when the second counsel came in he filed another motion to suppress based on rue forty one failure to leave the inventory at the at the house and mr crump and was not satisfied with that he continued to question  counsel and requested even at the beginning a trial the very first day of trial mr crump and walked in court and said judge can i have a german in this case i've got another motion to suppress say sounds more like a twenty to fifty five argument well your honor i think you know the government's twenty five and then we create a record and decide whether it was ineffective but i think this goes back to the court's question is the court able to cure this kind of an error at the at the at the trial court level you know is a clued from doing what it takes up such ruling it takes up such an issue so i mean even though i didn't explicitly say that he did make comments on the record at trial that you know you guys missed it you but neither of you brought this up to me so on and so forth so the judge is saying with his first impression to i'll be brief i think there were a number of things there that misrepresented the record and i think the first issue is that the agent and not take mr compton back and forth in order of course i'm i'll concede it was probably forty one i actually thought was a little colder than that but they're at the record and granted the no findings of this effect but at least with respect to the judgment acquittal but the agent testified he brought him in what's so mr crump essential he went outside to the curb and gave blanket a miranda warnings to all seven people that were lined where he's saying i missed all this he said it once with respect to the first miranda warning and it's not ineffective assistance of counsel to bring a legally frivolous motion in the first so even if there was a ineffective system somehow would excuse very misrepresentative of the record the issue here is not whether the defendant knew the full consequences of waiving his miranda rights and i think you alluded to this earlier whether he knew that he could be charged for the ammunition certainly he appreciated that the drugs were problematic for him the issue is whether the defendant knew he could choose not to talk and there is no question he did based on his selective invocation miranda repeatedly every time it came to drugs he declined to  talk mr crumpton was concerned about his ability to he wanted to make sure in waiving in signing a waiver form he was not consenting to the search such that he could not challenge it and i think that's also clear from the transcript  case lot of support that this is a subjective belief in fact the floor of the palace of justice is object of standard we're supposed to look at whether object it was objective lee reasonable the warnings that were given and they're supposed to be viewed in a comprehensive and commonsense fashion not a subjective fashion and for all these reasons we would ask that the judgment of acquittal be vacated and the verdict reinstated thank you thank you thank you both case would be submitted and they would like the clerk to call the next case