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United States v. McForbes

United States District Court, D. Massachusetts

June 24, 2015

MARK McFORBES, Defendant.


TIMOTHY S. HILLMAN, District Judge.

Defendant Mark McForbes is charged with being a felon in possession of a firearm and possession of a firearm with an obliterated serial number in violation of 18 U.S.C. ยงยง 922(g)(1) & 922(k). He has moved to suppress statements made to law enforcement following his arrest on the ground that they were not made pursuant to a voluntary, knowing, and intelligent waiver of his Miranda rights. This Court held an evidentiary hearing on the matter on June 17, 2015. For the following reasons, Defendant's Motion to Suppress Statements (Docket No. 56) is denied.

Findings of Fact

McForbes was arrested without incident at his residence in Southbridge, Massachusetts, on the morning of January 23, 2015. During the arrest, McForbes was able to stand, walk, and speak without difficulty. While at the residence, McForbes informed ATF Special Agent Brian Meehan that he wanted to speak to someone about the charges. That message was relayed to ATF Special Agent Michael Finnerty, the case agent in charge of the investigation. Agent Finnerty accompanied Agent Meehan, ATF Special Agent John Pijaca, and McForbes to the Southbridge police station. There was no substantive discussion about the charges during transport.

Upon arrival at the Southbridge police station, the agents placed McForbes in an interview room without handcuffs and gave him water. Agent Finnerty entered the room and showed McForbes his credentials. McForbes asked Agent Finnerty to display them for the camera. Also present were Agent Pijaca and Southbridge Detective Scott Bailey. All three officers identified themselves. Agent Finnerty advised McForbes that the interview was being audio and video recorded and read McForbes his Miranda rights. Agent Finnerty asked whether, knowing those rights, McForbes wanted to speak with him. McForbes responded that he understood and wanted to speak. Agent Finnerty gave McForbes a written waiver form to sign. McForbes confirmed that he could end the interview at any time, and then signed the form.

Early in the interview McForbes indicated that he had personal-use marijuana in his home. He couldn't remember where he kept it, stating that he was "on a lot of medications." Agent Finnerty asked what kind of medications McForbes took and McForbes answered that he was prescribed anti-depressants by Dr. Eric Garcia, but couldn't remember what kind. When asked whether the anti-depressants affect his judgment, McForbes responded "at times." Agent Finnerty next asked if McForbes took any other type of medications. McForbes stated that he was also "on Suboxone, " but was unsure if he was prescribed anything else. McForbes stated that he had not consumed any alcohol or other drugs that day.

Agent Finnerty then began to discuss McForbes' charges and asked him about firearm sales. During the interview, McForbes was cogent, responsive, and spoke coherently. After approximately fifteen minutes of questioning, McForbes stated that he wanted a lawyer. Agent Finnerty immediately terminated the interview. Before Agent Finnerty had time to get up from his seat, however, McForbes re-engaged the conversation. Agent Finnerty asked if McForbes was waiving his rights again. McForbes looked at the camera and said, "I'm waiving my rights again. Once again I'm waiving my rights and we can continue the conversation." McForbes proceeded to ask how he could help the officers get McForbes's family "away from this shit." Agent Finnerty indicated that he was looking for information for other investigations, at which point McForbes became agitated about the charges against him. Agent Pijaca told McForbes that he could either cooperate or fight the charges in court. Agent Pijaca also stated that they weren't hiding any evidence, and that "when it comes time for discovery, all that stuff will be turned over, and you'll get it all." McForbes said, "Alright let's go to discovery" and stood up, terminating the interview. The officers immediately ceased questioning related to the charges. McForbes was told to sit back down, and Agent Finnerty began asking booking questions in preparation for taking McForbes into the custody of the U.S. Marshals.[1] McForbes, still agitated, began to plead out loud to God, asking God and Jesus to "get me through this" and "get all this medication out of my body." McForbes also stated "I'm incoherent right now" and "I'm so mad right now." Once the booking questions were completed, McForbes was handcuffed and taken to the U.S. Marshals.

Evidence of McForbes's criminal history was also presented at the suppression hearing. I credit the testimony of Detective Jeffrey Carlson of the Worcester Police Department, who arrested McForbes in 2006 following a domestic violence complaint. After reading McForbes his Miranda rights, Carlson asked McForbes if he understood them. McForbes responded, "I know my rights. I have been arrested a million times, " and proceeded to make statements to Carlson. Finally, medical records submitted by McForbes, dated January 20, 2015, confirm that he was prescribed Suboxone by Dr. Eric Garcia, and reflect that he was doing well with the prescription at the time of his arrest.


Legal Standard

To protect the Fifth Amendment privilege against self-incrimination, law enforcement officials must advise suspects in custody of their Miranda rights prior to any questioning.[2] See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602 (1966). "A defendant may waive his Miranda rights if the waiver is made voluntarily, knowingly, and intelligently." United States v. Palmer, 203 F.3d 55, 60 (1st Cir. 2000) (citing Miranda v. Arizona, 38 U.S. 436, 444, 86 S.Ct. 1602 (1966)). In examining a Miranda waiver, a district court must begin with the presumption that a defendant did not waive his rights. See United States v. Downs-Moses, 329 F.3d 253, 267 (1st Cir. 2003). That presumption is overcome where the government meets its burden of proving a valid waiver by a preponderance of the evidence. See id.

To be valid, a Miranda waiver must meet two criteria. See United States v. Bezanson-Perkins, 390 F.3d 34, 39 (1st Cir. 2004). First, the waiver must be voluntary. A waiver is voluntary "when it [is] the product of a free and deliberate choice rather than intimidation, coercion, or deception.'" Id. (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135 (1986)). Second, the waiver must be knowing and intelligent. This requirement is met where the defendant waives his rights "with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Id. Both inquiries require courts to examine the totality of the circumstances of the interrogation. Id.


I find that the government has established, by a preponderance of the evidence, that McForbes validly waived his Miranda rights. McForbes's primary contention is that substance use rendered his waiver involuntary. McForbes argues that the potential presence of antidepressants, Suboxone, and marijuana in his system should have indicated to Agent Finnerty that McForbes was incapable of making a voluntary waiver, and the interview should have been terminated once McForbes explained his drug use. In determining whether a waiver is voluntary, courts look to "tactics used by the police, ...

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