Swan v. United States

1

BARRETT C. SWAN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 1:21-CV-00142-SNLJ

United States District Court, E.D. Missouri, Southeastern Division

June 28, 2024

MEMORANDUM AND ORDER

STEPHEN N. LIMBAUGH, JR. SENIOR UNITED STATES DISTRICT JUDGE

On September 27, 2021, Petitioner Barrett Swan (“Swan”) filed this Motion to Vacate, Set Aside or Correct Sentence pursuant to Title 28, United States Code Section 2255. This Court then ordered the United States to show cause why the relief requested in Swan's motion should not be granted. Based on the reasons set forth below this Court will dismiss Swan's claims as waived and procedurally barred or otherwise deny them without an evidentiary hearing because they fail as a matter of law.

I. PROCEDURAL HISTORY

On July 10, 2018, a federal grand jury returned an Indictment charging Swan with being a felon in possession of a firearm in violation of Title 18, United States Code, Section 922(g)(1). United States v. Swan, 1:18-cr-00098-SNLJ, Doc. 2^[1]. On September 11, 2018, Swan was charged by a Superseding Indictment with the same offense. Doc. 22. On June 27, 2019, a Second Superseding Indictment was returned charging Swan with two counts of being a felon in possession of a firearm, in violation of Title 18, United States Code, Section 922(g)(1). Doc. 65. Count I of the Second Superseding Indictment arose out of Swan's possession of a firearm in Cape Girardeau County, Missouri, on or about May 26, 2018. Count II arose out of a separate incident in which Swan possessed a different firearm in St. Louis County, Missouri, on or about August 1, 2018. Attorney Jennifer Booth was appointed to represent Swan and represented him for the entirety of the criminal case.

A. Motion to Suppress

On November 21, 2018, Swan filed a motion to suppress certain statements that he made to Florissant Police Officer Jonathan Kemp following his arrest on August 1, 2018. Doc. 35. After transporting Swan to the Florissant Police Department, and as Officer Kemp completed paperwork related to the arrest, Officer Kemp stated to Swan that he would have an opportunity to go to the interview room and speak about the firearm. Swan replied with words to the effect of, “I'm not going to talk. We both know what you found in the car. I'd rather be in the situation I'm in now than be in the situation I was in the past when I was shot without anything on me.” Doc. 39.

In his motion to suppress, Swan argued that these statements were obtained in violation of his Fifth Amendment right against self-incrimination because he was not advised of his Miranda rights before he made them. Doc. 35 at 2-3. The United States filed a response on December 3, 2018. Doc. 39. The United States argued that, though Swan was in custody at the time of his statements and no Miranda warnings were given prior to his statements, the statements were spontaneous and not in response to any interrogation by Officer Kemp. Id. at 4-6.

B. Evidentiary Hearing

An evidentiary hearing for Swan's motion to suppress was held before United States Magistrate Judge Abbie Crites-Leoni on January 11, 2019. At the hearing, the United States presented the testimony of Officer Kemp. Evidentiary Hearing Transcript (“EH Tr.”) 528. Swan called the case agent, Bureau of Alcohol, Tobacco, and Firearms (“ATF”) Task Force Officer Brian Eggers, as a witness. EH Tr. 30-41. In its motion response, the United States conceded that Swan was in custody at the time of his statements and that Miranda warnings were not read beforehand. Doc. 39 at 4. The only issue before the Court, then, was whether Officer Kemp's statement that Swan would have an opportunity to speak about the firearm amounted to interrogation or words or actions “reasonably likely to elicit an incriminating response from the suspect.” Id.

Officer Kemp testified that, on August 1, 2018, at approximately 3:20 a.m., he initiated a traffic stop of a vehicle in which Swan was riding after observing the vehicle fail to stop at a stop sign. EH Tr. 6-7.4 Officer Kemp requested identification from the driver, Tiara Thorpe, and the passenger, Swan. EH Tr. 7-8. Swan indicated that he did not have any identification and provided a false name and social security number. EH Tr. 8. After checking the information, Officer Kemp learned that Swan had provided false identifiers. EH Tr. 9. Officer Kemp returned to the vehicle and again asked for Swan's identification. EH Tr. 10. This time, Swan provided his own name and social security number. EH Tr. 10. With this information, Officer Kemp learned that Swan had an active federal arrest warrant. EH Tr. 11. Officer Kemp again returned to the vehicle, asked Swan to exit the vehicle, and placed Swan under arrest. EH Tr. 11. As Swan was exiting the vehicle, Officer Kemp observed a firearm lying in the passenger seat where Swan had been sitting. EH Tr. 11-12.

Officer Kemp then transported Swan to the Florissant Police Department for processing. Officer Kemp escorted Swan to the “holdover,” which he described as the room “where we hold persons before they get either transferred to a county or to a different police department for arrest warrants.” EH Tr. 13. Officer Kemp testified that, while in the holdover, he completed paperwork on the traffic stop and arrest, inventoried Swan's property, and provided Swan a change of clothes. EH Tr. 13-14. As he was completing these tasks, Officer Kemp spoke briefly to Swan:

A: I told him that upon completion of the booking process, that he would be escorted to an Interview Room and given the opportunity to talk about the firearm.

Q: And how did Mr. Swan respond?

A: He stated the effect of, “I'm not going to talk; we both know what you found in the car, and I'd rather be in the situation I'm in now that the situation that I was in in the past when I was shot and didn't have anything on me.” ...

Q: Now prior to Mr. Swan making the statement, did you ask any question of Mr. Swan - of Mr. Swan that would require that answer?

A: No, sir.

Q: Did he - Did he make the statement all as one statement?

A: Yes, sir.

Q: Okay. That is, there wasn't an intervening question on your part?

A: No, sir.

Q: Did you continue to speak with Mr. Swan?

A: No. He indicated that he did not want to speak.

Q: So basically that was the end of your contact with him?

A: Correct, sir.

EH Tr. 14-15.

Defense counsel then cross-examined Officer Kemp. Counsel questioned Officer Kemp about the circumstances of Swan's statements, including the lack of Miranda warnings. EH Tr. 16, 19-20. Counsel also impeached Officer Kemp about his memory and lack of documentation for these statements:

Q: . . . [T]hat statement that you've relayed to us isn't a verbatim statement, correct? It's just what you remember the gist of what the statement was?

A: The first part is what I one hundred percent recall. As far as towards like the very end when it was referenced to being the situation “now that I was - when I was in previously and didn't have anything on me,” that part I do not recall specifically.... ...

Q: Okay. But then as truth be told, the second part you can't tell us verbatim the words but simply just the gist.

A: Correct.

Q: Okay. And it's fair to say that these statements that Mr. Swan made weren't memorialized by an audio recording or anything like that.

A: Correct.

Q: And when he made these statements, you didn't write them down immediately, correct?

A: Correct.

Q: So we are just going on your memory.

A: Correct.

EH Tr. 16-17. Counsel went on to impeach Officer Kemp about other inaccuracies and details missing from his report, namely the date of the incident, which was incorrectly recorded in the report, EH Tr. 18, and that Thorpe told Officer Kemp at the scene that the firearm was hers, a fact missing from his report, EH Tr. 21.

Swan then called Officer Eggers to testify. Officer Eggers did not participate in the arrest of Swan on August 1, 2018 but had documented in his report the statements that Swan sought to suppress. In his report, Officer Eggers indicated that Officer Kemp “attempted to conduct an interview of Swan.” EH Tr. 38. Defense counsel questioned Officer Eggers about what Officer Kemp had communicated about Swan's statements and when Officer Kemp informed him of the statements. EH Tr. 39-40. Counsel also questioned Officer Eggers about Thorpe's ownership of the gun, including whether an eTrace was ever done, and the fact that Officer Kemp never told him about Thorpe's statement to that effect. EH Tr. 40.

The parties both filed post-hearing briefing on Swan's motion to suppress. Docs. 54 and 55. In the defense's briefing, counsel highlighted for the Court inconsistencies between Officer Kemp's and Officer Egger's testimony, Doc. 54 at 2-4, and challenged Officer Kemp's credibility based on these inconsistencies, mistakes in his report, and information missing from his report, Id. at 5.

C. Order Denying Motion to Suppress

On April 15, 2019, Judge Crites-Leoni issued an 11-page report and recommendation recommending that Swan's motion to suppress be denied. Doc. 56 (“R&R”). Judge Crites-Leoni concluded that Officer Kemp did not interrogate Swan, as he “did not directly question Swan regarding the firearm.” Id. at 6. Judge Crites-Leoni further found that “Officer Kemp's explanation about there being an opportunity for Swan to participate in an interview after the booking process was completed was not designed to elicit an incriminating response.” Id. at 7. In support, Judge Crites-Leoni cited a similar decision by the Eighth Circuit in United States v. Head, in which the Court found that an officer's statement that he wanted “to talk to [suspect] about what had occurred that morning” was not designed to elicit an incriminating response. Id. (...