United States District Court

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

 v.

MARCUS ETIENNE, ELIZABETH

GOBERT, CRAIG MARSHALL, and

MARIO ROBINSON,

Defendants. /

No. CR 17-00093 WHA

ORDER DENYING MOTION 

TO SUPPRESS STATEMENTS

INTRODUCTION

In this prosecution under the Racketeer Influenced and Corrupt Organizations Act, the

Violent Crimes in Aid of Racketeering Act, and other penal statutes, defendant moves to

suppress certain statements. For the reasons below, the motion to suppress is DENIED. 

STATEMENT

In the afternoon of December 13, 2016, following the issuance of an arrest warrant in this

case, Louisiana State Police Trooper John Solet stopped a vehicle in which defendant Marcus

Etienne was a passenger. Trooper Solet arrested Etienne and transported him to the Louisiana

State Police Criminal Investigations Division for questioning. Etienne later signed an “advice of

rights” form acknowledging that he understood and waived his rights to remain silent, to consult

an attorney prior to questioning or to have an attorney present during questioning, and to stop

answering questions at any time. Etienne also verbally acknowledged his agreement to answer
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questions without a lawyer present. Thereafter, officers conducted three interrogations of

Etienne spanning approximately seven hours, with the third and final interrogation concluding at

11:13 p.m. on December 13. Etienne now moves to suppress these interrogations (Dkt. Nos.

305, 333). The interrogations were video recorded and Etienne has submitted those recordings

in support of the instant motion to suppress (Def. Exhs. A–D). References to times are to the

time stamp included in the lower right-hand corner of the recordings. This order follows full

briefing, oral argument, and an evidentiary hearing.

ANALYSIS

A defendant may waive his Miranda rights “provided the waiver is made voluntarily,

knowingly and intelligently.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). “Only if the

‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and

the requisite level of comprehension may a court properly conclude that the Miranda rights have

been waived.” Moran v. Burbine, 475 U.S. 412, 421 (1986) (citation omitted). The government

must prove the validity of a waiver by a preponderance of the evidence. Colorado v. Connelly,

479 U.S. 157, 168 (1986).

1. VOLUNTARINESS.

Courts consider the “totality of all the surrounding circumstances” in determining the

voluntariness of a confession, including the characteristics of the accused and the details of the

interrogation. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). A statement is not

voluntary “if because of mental illness, drugs, or intoxication, the statement was not the product

of a rational intellect and a free will.” United States v. Kelley, 953 F.2d 562, 565 (9th Cir. 1992).

Etienne argues that he could not voluntarily waive his Miranda rights due to his level of

intoxication (at the beginning of questioning) and later withdrawal (at the end of questioning). 

He testified that in the years leading up to his December 2016 arrest, he typically consumed one

pint of liquid codeine with promethazine (i.e. “syrup”) per day, whereas on the night preceding

his arrest he consumed between 2.5 to 3 pints. Because drinking promethazine gave him energy,

Etienne testified, he had not slept the night prior to his arrest. Once he stopped drinking it,

however, he said he would become tired, weak and hungry.
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At the beginning of the first interrogation, Etienne signed an advice of rights form and

verbally acknowledged that he wished to waive his Miranda rights (Def. Exh. A at 16:38; Gov’t

Exh. B). While Etienne’s intoxication during the interrogations seems apparent from the video

recordings, as demonstrated by his animated gestures, slurred speech and spilling of water (see,

e.g., Def. Exh. A at 16:25–26, 16:43–45), his demeanor, manner and speech while testifying

during the evidentiary hearing closely approximated his behavior in the video. Moreover,

throughout the interrogations Etienne appropriately and coherently responded to the officers’

questions. At certain points, Etienne even acknowledged that he was aware that the interrogation

was being video recorded (id. at 18:26, Def. Exh. C at 21:56–57). And, although Etienne

repeatedly testified that he could not remember the interrogations because he was “high out of

[his] mind,” his ability to remember events leading up to his arrest — including that all but one

of his girlfriend’s children had gone to school, that he smoked a precise amount of marijuana

with papers, and that his friend picked him up so they could get food at Burger King but their

vehicle was stopped by police before they reached the restaurant — seriously undermined the

credibility of this claim.

Etienne highlights other aspects of the December 13 interrogations, including the length

of the questioning, Etienne’s apparent fatigue which culminated in him beginning to doze off at

the end of the interrogations, and Etienne’s having twice stated that he had “never ate nothing.” 

While Etienne’s fatigue and hunger are relevant, the video nevertheless demonstrates that he

remained coherent and responsive while officers were present and never asked to cease

questioning (Def. Exh. A at 17:26–31; Def. Exh. C at 22:38–22:48; Def. Exh. D at 22:48–51,

23:10–11). In sum, the preponderance of the evidence shows that Etienne’s ability to think

rationally was not so impaired by his intoxication and/or withdrawal so as to render his

statements involuntary.

2. KNOWING AND INTELLIGENT.

The preponderance of the evidence also shows that Etienne’s waiver was knowing and

intelligent. In making this determination, courts again consider the totality of the circumstances,

including the defendant’s mental capacity and language skills, whether the defendant signed a
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written waiver, whether he appeared to understand his rights, whether his rights were

individually and repeatedly explained to him, and whether he had prior experience with the

criminal justice system. United States v. Garibay, 143 F.3d 534, 538 (9th Cir. 1998). 

Etienne’s testimony that he did not understand he had a choice as far as participating in

questioning lacks credibility and is rejected. As set forth above, Etienne signed a written waiver

and enthusiastically agreed to waive his rights at the beginning of questioning. Etienne testified

that he had been arrested at least five times prior to the December 13 interrogations. When the

officer began to provide a second set of Miranda advisements at the beginning of the third

interrogation, Etienne told the officer that he was a “convicted felon” and so the officer did not

need to “go through it,” prompting the officer to respond “[n]o, I do, I really do,” and after which

Etienne again acknowledged that he understand and waived his rights (Def. Exh. D at 22:48–50). 

Nothing in the record indicates that he lacked the language skills or mental capacity to

understand the nature of his rights. 

CONCLUSION

For the reasons stated above, the preponderance of the evidence shows that Etienne’s

waiver of rights on December 13 was voluntary, knowing and intelligent. The motion to

suppress the December 13 interrogations is accordingly DENIED. 

IT IS SO ORDERED.

Dated: March 4, 2019. 

WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE