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United States of America v. Ali Clay

December 10, 2012

UNITED STATES OF AMERICA,
v.
ALI CLAY, DEFENDANT.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

On June 7, 2011, Defendant Ali Clay was arrested for selling crack cocaine to a confidential informant working for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). After he was arrested, Defendant allegedly spoke with ATF Special Agent Labno about the drug deal. Thereafter, Defendant was transported to ATF's office, where the Government contends that he waived his Miranda rights, both orally and in writing, made an oral statement to ATF Special Agents, and executed an affidavit containing portions of his oral statement. Defendant was later charged with three counts of distributing mixtures and substances containing cocaine base, in violation of 21 U.S.C. § 841(a)(1). On July 23, 2012, Defendant filed a motion to suppress post-arrest statement [36], "seek[ing] to invalidate [his] waiver and suppress [his post-arrest] statement as being made in violation of his Fifth Amendment right to remain silent and his Sixth Amendment right to counsel."*fn1 For the reasons below, Defendant's motion [36] is denied.

I. Background

The Seventh Circuit has described "the resolution of a motion to suppress" as a "fact-intensive inquiry" in which the district court must make "credibility determinations" based on "its opportunity at the suppression hearing to hear the testimony and observe the demeanor of the witnesses." United States v. Kempf, 400 F.3d 501, 503 (7th Cir. 2005); see also United States v. Springs, 17 F.3d 192, 194 (7th Cir. 1994) (explaining the deference given to the credibility determinations of the district judge who has "heard the conflicting testimony, observed the witnesses, and then reached a determination about whom to believe"). Both parties agreed that the Court should hold an evidentiary hearing to resolve Defendant's motion, and the Court convened a suppression hearing on November 1, 2012. During the hearing, counsel for Defendant Clay and counsel for the Government presented the testimony of four witnesses: Defendant Ali Clay, ATF Special Agents Christopher Labno and Rene Marano, and Bureau of Prisons Lieutenant Cleveland Swan. After considering the testimony of the witnesses and assessing their credibility, the Court sets forth the following recitation of the facts surrounding the encounter between Clay and the law enforcement officers that gave rise to the federal charges against Clay and the motion to suppress currently before the Court.

At approximately 6:00 p.m. on June 7, 2011, Defendant Clay was arrested as part of planned buy-bust after a controlled purchase of narcotics to an ATF confidential informant. The transaction originally was scheduled to occur around 109th and Michigan South Avenue in Chicago; however, shortly before the transaction, Clay contacted the confidential informant and changed the location to the Jewel Osco parking lot at 95th and Stony Island. According to Agent Labno, shortly after the controlled buy, agents pulled over the vehicle in which Defendant was riding and Defendant was arrested. There were four other individuals in the vehicle at the time of the stop. While one of the other occupants of the car was briefly handcuffed, none of the other occupants were arrested and they were released after the stop. Labno arrested Defendant, handcuffed him, and placed him in an ATF vehicle. Labno testified that Defendant made statements that led Labno to believe that Defendant was interested in cooperating and that he could make incriminating statements. Labno testified that he advised Defendant of his rights in "basically plain English" rather than reading from the card that he carries. Defendant denies that Labno advised him of his rights. Labno testified that Defendant did not appear impaired and that Defendant said that he understood his rights and indicated his intent to waive them because he wanted to cooperate. According to Labno, Defendant then made incriminating statements regarding the transaction he had just completed, stating that he knew who had set him up, that he had just sold a "63" of crack, and that Defendant had with him the cash that he received for the transaction.

After this initial conversation, agents transported Defendant to ATF's offices in Chicago. On cross-examination, Labno was asked about the other occupants in the car. Initially, he testified that he told Defendant that the other occupants of the vehicle had been released "about halfway through the interview at the ATF office." Later, he stated that he told Defendant that they would be released while he was driving Defendant away from the scene of the arrest. Labno also testified that he and Clay did not have any "substantive" conversations during the transport to ATF's office.

Upon their arrival at ATF, Defendant was placed in an interview room and was offered food and something to drink, which he declined. Labno and Cook County Sheriff Investigator Jeff Lange left Defendant in the room for a short while to collect some materials and then returned to interview him. Labno testified that he started the interview by again advising Defendant of his rights, this time with the assistance of ATF's printed advice-of-rights form. Labno testified that he placed the form in front of Defendant, asked if he could read and write, and again read each of Defendant's rights to him. According to Labno, Defendant stated that he read and understood the form and then signed it. Labno and Lange witnessed Defendant's signature and memorialized it at 7:28 p.m. This document was signed by Clay in blue ink, by Labno in blue ink, and by Lange in black ink. Defendant testified equivocally in regard to the advice-of-rights form. At multiple points he stated his belief that he believed that he signed the advice-of-rights form at the end of the interview, and not at 19:28 as indicated on the form, but at other times he said that he was not certain when he signed it, only that he signed it at some point.

Labno testified that Defendant was calm and cooperative and that he did not appear impaired in any way. Defendant twice asked if he could smoke, and Labno brought him down to the building's loading dock. Labno testified that Defendant knew he was "in trouble" and wanted to cooperate. According to Labno, he told Defendant that he could not make any promises, but that he would bring Defendant's cooperation to the attention of the U.S. Attorneys Office. Defendant also testified that the agents said they would "have to talk to the prosecutor." However, Defendant later testified that Labno told him that if he cooperated, he would be released. Defendant also stated that he was told that the prosecutor was in the next room and was interested in his cooperation. Defendant further testified that he asked about the other occupants of his vehicle around this time and Labno told him that they were in the next room and that once Clay had completed cooperating with the agents, he and the others could leave together.

According to Labno, Defendant then made incriminating statements to Labno and Lange regarding his drug and gun trafficking activities. As part of that statement, Labno showed Defendant several photographs related to ATF's investigation. With regard to each, Labno testified that he had Defendant initial the photo, and Labno memorialized Defendant's statement about the photo on the photo itself. Labno stated that during the interview Defendant identified the buyer in the transaction at "Poochie Man" and said that he had done at least a dozen deals with him. Labno testified that Defendant admitted that he had been engaged in drug dealing from 2009 to the present, selling on average between 63 grams to an eighth of a kilo of crack every three to four days. Labno calculated the low end total for that period and told Defendant it added up to 11 kilos of crack, which Defendant admitted was a sizeable amount. Defendant testified that it was his understanding that he was being evaluated for suitability as a confidential informant and so he exaggerated his drug dealings to appear to be a significant player. Labno also testified that Defendant told him that he had given a .22 gun to a man named Flukie who had later sold the gun to Poochie Man, and Defendant described another individual who supplied guns, telling the agents which exits he had taken in Northern Indiana to visit that individual.

On cross-examination, defense counsel asked Agent Labno about the ink colors on the exhibits. Labno appeared to be using black ink on most of the documents. He testified that he had written in black on Government Exhibits Photo 2, 3, 4, 5, and 8, and that Defendant had placed his initials on Government Exhibits Photo 2, 3, 4, 5, 6, 7, 8, and 9 and had inserted the date on Government Exhibits Photo 1, 2, 3, 4, 5, 6, 7, 8, and 9. Labno further noted that the initials "A.C." on Government Exhibits 4 and 8 were in black while the others were in blue. Labno testified about the significance of the different colors of ink on the documents: "We used a different color pen later on because while he [Clay] initialed it when I first showed it to him, the 'AC', I had asked him to date it and he did not, and then he went back and said he didn't date it so he had to go back and date it with a different pen later on when we were -- later in the interview." Labno further testified that the blue pen was used later in the interview when he and Clay were reviewing the statement: "I gave him his own pen, which happened to be blue." But Labno also testified that they had "the blue and the black pen the entire time we were there. We switched between them. I made a specific concerted effort at the end during the statement to have him use the blue pen specifically." Defendant did not recall switching pens.

At the conclusion of the interview, Labno asked Defendant if he was willing to memorialize his statement in writing, to which Defendant allegedly agreed. Labno then wrote out a statement for Defendant, which he gave to Defendant to review. Defendant testified that when he reviewed Labno's written version of his statement, he noticed that several changes had been made to what he said and also noticed that the statement included information that he had not provided. According to Defendant, at that point he asked to speak to a lawyer, but was told that if he spoke to a lawyer, he would not be able to cooperate ever. Defendant made a few changes to the statement and initialed those changes. Defendant then signed the statement, which was witnessed by Labno and Agent Marano, who had come into the interview while it was ongoing. According to the Government's exhibit, the statement was witnessed at 9:57 p.m. Labno then asked Defendant to sign a 17-hour waiver of his presentment before a magistrate, which Defendant signed. Agent Marano testified that at the end of the interview "Agent Labno went back and decided to kind of just make sure everything was correct." Agents Labno and Marano testified that Defendant did not appear impaired in any fashion, that he was cooperative, that they did not attempt to coerce Defendant into making any statement, and that Defendant never requested a lawyer.

After the statement was prepared, Labno and Marano consulted with the U.S. Attorney's Office, and a decision was made that Defendant should not be released from custody. Defendant was transported to the MCC to be held in custody in advance of an initial appearance the next day. In advance of taking Defendant to the MCC, Labno testified that he asked defendant about his health status so that they would not encounter any issues with his admission to the MCC.

According to Labno, Defendant said nothing about being intoxicated or impaired. Upon Defendant's arrival at the MCC, Lieutenant Cleveland Swan served as the intake officer. He testified that, based on his review of Defendant's intake form, Defendant did not appear to be impaired or intoxicated when he arrived. He also testified that if a prisoner arrives "impaired or intoxicated," he would not be put into the general prison population. On the intake screening form, Swan deemed Clay appropriate for general population and did not note any problems with his general physical appearance.

Defendant Ali Clay testified that on the evening of June 6, 2011, he attended a party. Prior to the party, he allegedly drank two fifths of Grey Goose vodka. He also smoked several blunts of marijuana through the day. At the party, he had another "5 or 6 blunts [of marijuana] and probably a fifth or two of Gray [sic] Goose." Additionally, he testified that he took an Ecstasy pill around 9:00 or 10:00 p.m., and that he left the party around 1:00 or 2:00 a.m. and returned home. However, he did not sleep; instead, he smoked more marijuana, in an effort to stay awake because he had a court appearance at approximately 10:00 a.m. on the morning of ...


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