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ORDER GRANTING IN PART AND

DENYING IN PART BINDER’S MOTION

TO SUPPRESS

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF AMERICA, 

Plaintiff,

v.

RICHARD ALLEN FABEL, 

RODNEY ROLLNESS, 

JOSHUA BINDER, 

RICKY JENKS, and

PAUL FOSTER

Defendants.

Case No. CR06-041L

ORDER GRANTING IN PART AND

DENYING IN PART BINDER’S

MOTION TO SUPPRESS

I. INTRODUCTION

This matter comes before the Court on defendant Binder’s “Motion to Suppress PostArrest statements” (Dkt. #296). At issue is the admissibility of portions of two separate

statements made by Binder on December 12, 2005 and February 13, 2006. Binder contends that

these statements were either involuntary or made without first being given proper Miranda

warnings. The Government argues that these statements were made voluntarily and are therefore

admissible. 

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ORDER GRANTING IN PART AND

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TO SUPPRESS

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II. DISCUSSION

A. December 12, 2005 Statement 

On December 12, 2005 Binder was arrested and booked into the King County jail in

connection with a burglary. The following day he was visited in jail by Detective Robert

Belshay of the Seattle Police Department who questioned him on matters related to his time with

the Hells Angels. At the conclusion of the questioning, Binder also permitted Belshay to

photograph a number of his tattoos. The Government admits that Binder was never advised of

his Miranda rights and acknowledges that Binder was told that he did not need an attorney. 

Given the absence of any Miranda warning, the Government wisely does not seek to

introduce these statements as part of its case-in-chief, but instead seeks only to reserve its right

to use the statements to impeach Binder should he choose to testify at trial. Therefore, the

question at issue here is whether the statements were sufficiently “voluntary” to allow the

Government to use them for impeachment purposes. See Oregon v. Hass, 420 U.S. 714, 722

(1975). The Court concludes that the statements were voluntary. The Supreme Court has held

that the existence of “coercive police activity is a necessary predicate to the finding that a

confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth

Amendment.” Colorado v. Connelly, 479 U.S. 157, 167 (1986). Defendant has offered no

evidence that Binder was subject to any coercive activity in this instance. While the

Government is prohibited from using any of Binder’s December 12, 2005 statements in its casein-chief, it is not prohibited from using them for impeachment purposes should Binder choose to

testify at trial. Though this resolution may seem deficient given Detective Belshay’s perhaps

knowing disregard for Miranda, the Supreme Court has concluded otherwise: “The shield

provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free

from the risk of confrontation with prior inconsistent utterances.” Hass, 420 U.S. at 722.

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ORDER GRANTING IN PART AND

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B. February 14, 2006 Statement

On February 14, 2006, Binder was arrested pursuant to a warrant in this case. Soon after

his arrest, he was contacted at the King County sub-station in North Bend, Washington by

Special Agent David Williams of the FBI and Detective Dave Heitzman of the Snohomish

County Sheriff’s Office. At this meeting, Binder was advised of his Miranda rights, which he

acknowledged and waived. During the course of the interrogation, Binder was asked how he

obtained his “Filthy Few” patch. After a number of questions on this topic, agents informed

Binder that it was their understanding that the patch was earned after a member killed someone. 

At that point, Binder sought counsel. Questioning then ceased. 

At issue here is whether Binder’s non-verbal conduct at the time of invoking his right to

counsel is admissible. At oral argument, the Government agreed that it would not seek to

introduce any testimony relating to either the agents’ statement regarding their knowledge of

how a “Filthy Few” patch is obtained or Binder’s reaction to this statement, including his

request for counsel. Thus, the only matter to be decided relates to the admissibility of the

agents’ testimony regarding Binder’s demeanor during the earlier questioning. Such demeanor

evidence is generally admissible. See United States v. Velarde-Gomez, 269 F.3d 1023, 1030

(9th Cir. 2001). Agents can therefore testify about Binder’s physical reactions to questions, but

such testimony should be limited to objective observations about Binder’s actual physical

response and not venture into subjective conclusions about what state of mind those physical

responses reveal. In other words, agents may testify that Binder turned away from the agents

and looked at the table when asked a particular question, but they may not testify that Binder

“looked guilty” or “appeared defensive.”

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ORDER GRANTING IN PART AND

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III. CONCLUSION

For all the foregoing reasons, defendant Binder’s motion to suppress (Dkt. #296) is

GRANTED in part and DENIED in part.

DATED this 30th day of January, 2007

A

Robert S. Lasnik

United States District Judge

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