Petition for Writ of Certiorari — Michael Daemon Blackburn, Petitioner v. United States

No.______

In the

SUPREME COURT OF THE UNITED STATES

MICHAEL DAMEON BLACKBURN., Petitioner

v.

UNITED STATES OF AMERICA, Respondent

On Petition for Writ of Certiorari to

the United States Court of Appeals for the Tenth Circuit

Petition for Writ of Certiorari

STEPHEN P. MCCUE

Federal Defender

Margaret Katze

Counsel of Record

First Assistant Federal Defender

Office of the Federal Defender

District of New Mexico

111 Lomas Blvd., NW, Suite 501

Albuquerque, N.M. 87102

Telephone: (505) 346-2489

Facsimile: (505) 346-2494

E-mail: margaret_katze@fd.org

Question Presented

Is a written-only advisement of Miranda rights -without time or

silence to read it - a sufficient advisal allowing a knowing,

intelligent and voluntary waiver?

i

Table of Contents

Question Presented .................................................................................... i

Table of Authorities................................................................................. iii

Opinions Below .......................................................................................... 1

Statement of Jurisdiction .......................................................................... 2

Pertinent Constitutional Provisions ......................................................... 2

I.

Introduction ................................................................................... 3

II.

Factual Background ...................................................................... 5

A. District Court’s Decision ............................................................ 14

B. Tenth Circuit’s Decision ............................................................. 15

III.

Reasons for Granting the Writ .................................................... 16

A. For a written-only advisal to be sufficient, the atmosphere

must not be distracting; it must be conducive to reading and

understanding. ............................................................................ 16

B. Suggesting the waiver form is just a required piece of

bureaucratic paperwork renders the written-only advisal

inadequate. .................................................................................. 20

IV.

Conclusion .................................................................................... 21

Appendix A: United States v. Blackburn,

Tenth Circuit’s Order (August 23, 2019) ................................................ 2a

Appendix B: United States v. Blackburn

N.M. District Court’s Memorandum Opinion and Order (Dec. 17, 2015)... 11a

ii

Table of Authorities

Cases

Bell v. United States, 382 F.2D 985 (9th Cir. 1967) .......................... 16, 18

California v. Prysock, 453 U.S. 355 (1981) ................................................ 3

Clay v. State, 725 S.E.2d 260 (Ga. 2012) ................................................. 19

Coyote v. United States, 380 F.2d 305 (10th Cir. 1967) ........................ 3, 4

Doody v. Ryan, 649 F.3d 986 (9th Cir. 2011) .......................................... 20

Missouri v. Seibert, 542 U.S. 600 (2004) ................................................. 16

State v. Luckett 981 A.2d 835 (Md. App. 2009) ....................................... 21

United States v. Bailey, 468 F.2d 652 (5th Cir. 1972)............................. 16

United States v. Coleman, 524 F.2d 593 (10th 1975) .............................. 17

United States v. Connell, 869 F.2d 1349 (9th Cir. 1989) ...................... 3, 4

United States v. Noti, 731 F.2d 610 (9th Cir. 1984) .................................. 3

United States v. Osterburg, 423 F.2d 704 (9th Cir. 1970) ...................... 16

United States v. Sledge, 546 F.2d 1120 (4th Cir. 1977) .................... 16, 17

United States v. Van Dusen, 431 F.2d 1278 (1st Cir. 1970) ............. 16, 17

Statutes

28 U.S.C. § 1254(1) ..................................................................................... 2

iii

Other Authorities

https://wordcounter.io/faq/how-many-pages-is-500-words ..................... 19

Richard Rogers et al., The Language of Miranda Warnings in American

Jurisdictions: A Replication and Vocabulary Analysis, 32 Law &

Hum. Bbehav. 124, 125 (2008) ....................................................... 18, 19

iv

In the

SUPREME COURT OF THE UNITED STATES

MICHAEL DAMEON BLACKBURN, Petitioner

v.

UNITED STATES OF AMERICA, Respondent

Petition for Writ of Certiorari

Michael Blackburn petitions for a writ of certiorari to review the

judgment and opinion of the United States Court of Appeals for the

Tenth Circuit in his case.

Opinions Below

The Tenth Circuit’s decision in United States v. Blackburn, Case

No. 17-2141, was not published. 1 The district court’s memorandum

opinion finding Mr. Blackburn voluntarily, knowingly, and intelligently

waived his Fifth Amendment rights was not published. 2

1 App. 2a-9a. “App.” refers to the appendix.

2 App. 11a

1

Statement of Jurisdiction

On August 23, 2019, the Tenth Circuit affirmed the district court’s

decision that Mr. Blackburn voluntarily, knowingly, and intelligently

waived his Fifth and Sixth Amendment rights. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

Pertinent Constitutional Provisions

Amendment V

No person…shall be compelled in any criminal proceeding to be a witness

against himself.

2

I.

Introduction

No one disputes the necessity of the four Miranda warnings. The

recitation of these four warnings need not adhere to any strict language.

California v. Prysock, 453 U.S. 355, 361 (1981). Instead, “what Miranda

requires ‘is meaningful advice to the unlettered and unlearned in

language which he can comprehend and on which he can knowingly

act.’” United States v. Connell, 869 F.2d 1349, 1351 (9th Cir. 1989)

(quoting Coyote v. United States, 380 F.2d 305, 308 (10th Cir. 1967)).

In assessing the adequacy of the advisal, a court must take a

“practical viewpoint,” considering the totality of the circumstances to

determine if a layperson could reasonably understand each Miranda

right. United States v. Noti, 731 F.2d 610, 614 (9th Cir. 1984). Several

Circuits and at least one State court held that Miranda warnings can be

provided to a suspect in written form only. But providing only a piece of

paper with neither time nor silence to read it, while treating it as

routine necessary paperwork, renders a written-only advisement wholly

inadequate. “The crucial test is whether the words in the context used,

considering the age, background, and intelligence of the individual

being interrogated, impart a clear, understandable warning of all his

3

rights.” Coyote, 380 F.2d at 308; see also Connell, 869 F.2d at 1353.

Here, the full context reveals the advisal as unclear and confusing.

First, Mr. Blackburn was never given time nor silence to read the

advisal. Second, besides making it difficult to read the advisal, Agent

Breen downplayed, minimized, and trivialized the importance of the

advisal – suggesting it was just a piece of bureaucratic paperwork he

had to have. The advisal thus fell below the minimum Miranda

standard; it was as if Mr. Blackburn did not receive the Miranda

warnings at all.

4

II.

Factual Background

In 2013, the Cyber Crimes Center, an investigative branch of

Homeland Security, discovered a pornographic image of a toddler girl

and adult male. The image’s megadata indicated the photo was taken in

Albuquerque, New Mexico, in May 2013 on an iPhone. Cyber Crimes

forwarded the image to the Homeland Security office in New Mexico.

Agent Breen investigated; he determined the child’s parents’ names,

Tom and Maria Doe, and their location. Early one morning, officers

approached the girl’s two-story unit to do a “knock-and-talk.”

Mr. Blackburn answered the front door wearing only boxers.

Officers were taken aback; they had expected Mr. or Mrs. Doe to answer

the door. Police had no indication that other adults lived with the

family. Det. Sabaugh, with the Bernalillo County Sheriff’s Office,

explained they were looking for the Does and their children. Mr.

Blackburn told the officers the children’s parents had left town. He

lived there with the children. When Det. Sabaugh requested to check on

the children, Mr. Blackburn acquiesced.

As the officers were talking with Mr. Blackburn, Jane and John

Doe, both toddlers, came down the stairs clad only in diapers. Agent

5

Breen and Det. Sabaugh immediately recognized Jane as the girl in the

photos. The detective took the children upstairs to find clothes.

Police discovered Mr. Blackburn’s cellphone contained two photos

of Jane and John “consistent with child pornography.” Agent Breen

testified that, after viewing those photos, he felt he had probable cause

to arrest Mr. Blackburn.

Agent Breen testified he asked Mr. Blackburn if he would go to

the police station to be interviewed. Mr. Blackburn agreed. The officers

handcuffed him, searched him, buckled him into the front-seat of a

police car, and drove him to the police station with Agent Breen and

Det. Sabaugh. No officer read or explained the Miranda warnings at the

house or on the way to the police station.

Once at the station, officers took Mr. Blackburn to a small locked

interview room at the police station. He arrived at 8:52 a.m. An officer

removed Mr. Blackburn’s handcuffs. Mr. Blackburn rubbed his wrists

for a while. After about three and a half hours of confinement there, he

had one brief contact with an officer to get a cup of water. Agent Breen

and Det. Sabaugh finally arrived at the room at 12:29 p.m.

6

Det. Sabaugh:

All right, Michael. My name is Detective Tracy

Sabaugh, and I’m with the Bernalillo County Sheriff’s

Department Special Victim’s Unit, and this is Special

Agent Ryan Breen with Homeland Security

Investigations, okay. And your name is Michael --

Mr. Blackburn: Blackburn.

Det. Sabaugh:

I'm sorry?

Mr. Blackburn: Blackburn.

Det. Sabaugh:

Is it --

Mr. Blackburn: B-L-A-C-K-B-U-R-N.

Det. Sabaugh:

B-U-R-N -- just how it’s spelled or how it sounds. And

what's your date of birth?

Mr. Blackburn: October Xth, 1985.

Det. Sabaugh:

‘95?

Mr. Blackburn: ‘85.

Det. Sabaugh:

And your Social?

Mr. Blackburn: 247-XX-XXXX.

Agt. Breen:

Okay.

Det. Sabaugh:

And is that Wyoming address your address?

Mr. Blackburn: That’s where I was staying, but it’s – the actual name

on the lease was Tom and Maria Doe.

Det. Sabaugh:

Okay. But you live there?

7

Mr. Blackburn: Yeah.

Det. Sabaugh:

Okay.

[After a minute and fifteen seconds elapsed, Agt. Breen handed Mr.

Blackburn the form below. Agt. Breen had already filled in the times

and date]

Agt. Breen: Okay.

That’s a

Waivers

form. I

just need

you to

read it

before we

go into

our

questions.

8

Det. Sabaugh:

Basically, we want to explain to you everything that’s

going on, you know, so that way you can tell your side

of the story. We can tell you what’s going on on our

side, so you know everything that’s going on. But you

do have to know your rights. Okay?

Mr. Blackburn: Right.

Det. Sabaugh:

Your Constitutional rights.

Mr. Blackburn: Okay.

Det. Sabaugh:

We want to make sure you understand them and that

you have -- you know, that you understand that. You

cannot talk to us if you want to.

Mr. Blackburn: Right.

Det. Sabaugh:

But

Agt. Breen:

But because of -- so like I explained to you before, it's a

group of divisions that work on stuff like this. And so

Teresa has her policies that, she has to follow; I have

my policies that I have to follow. We have to report to

45 different bosses

Mr. Blackburn: Right.

Agt. Breen:

-- about all the different stuff. So I apologize that it

took us so long to get in here and talk to you. We were

really hoping for a much quicker turn-around.

Mr. Blackburn: Right.

Agt. Breen:

You know, but like Teresa was saying, I just need you

to have those, to be aware of them, okay? And then we

can -- I can get you to sign that you received them.

9

Mr. Blackburn: Okay.

Agt. Breen:

But that doesn’t change anything about the rights that

you have…

Mr. Blackburn: Right.

Agt. Breen:

…from this. Do you understand that?

Mr. Blackburn: Yes, sir.

Agt. Breen:

Okay, so why don’t you just stand right over there out

of the way. We’ll get all this filled out. Okay?

[70 seconds elapsed since Agt. Breen handed Mr. Blackburn the waiver

form. Agt. Breen escorts Mr. Blackburn over to a table in the corner.]

Mr. Blackburn: Okay.

Agt. Breen:

So you understand these? Would you mind just putting

your initials right next to them to show that you’ve

read those rights?

Mr. Blackburn: (Inaudible).

[The video shows Mr. Blackburn lean over from a standing position and

initial the form seven times in 20 seconds. Agt. Breen is silent for

approximately 8 seconds of this time.]

Agt. Breen:

Usually, I have these in Spanish, too, but I didn’t feel

we all wanted Spanish lessons on how to read rights

right now. So -- okay. And then what I need you to do

here -- this says you’re willing to talk to us right now.

It doesn’t mean you’ve got to continue. But for right

now, you want to talk to us. I just need you to print

your name there and sign right there for me.

Mr. Blackburn: Okay.

10

Agt. Breen:

All right. Thanks a lot, Michael. Go ahead and grab a

seat again. Now that that silliness is out of the way…

The entire exchange from the time they entered the room until

Agt. Breen stated, “that silliness is out of the way” took slightly less

than three minutes and thirty seconds. Mr. Blackburn had the form

only seventy seconds before Agt. Breen escorted him to the table to sign

it. The video indicates Mr. Blackburn looked down at the form for no

more than a discontinuous 27 seconds before signing. The officers

talked almost the entire time.

While some of what the officers talked to Mr. Blackburn about

concerned his rights, neither officer explained his attorney-related

rights or that anything he said could be used against him. The officers

gave Mr. Blackburn no quiet time to read the form. It is not clear

whether he was reading the form during those spare seconds while the

officers continued to speak.

Two minutes and twenty seconds after entering the room, seventy

seconds after handing Mr. Blackburn the waiver form, Agent Breen

escorted Mr. Blackburn over to a table to initial and sign it. Agent

Breen did not ask him if he had finished reading. He did not tell Mr.

11

Blackburn his signature indicated his rights had been read and

explained to him. He did not tell Mr. Blackburn his signature indicated

he “fully” understood the listed rights. He did not tell Mr. Blackburn his

signature indicated he freely waived those rights, including his

attorney-related rights. The agent never asked Mr. Blackburn if he

wished to waive his rights.

At the suppression hearing, both Agent Breen and Det. Sabaugh

testified they had no reason to believe Mr. Blackburn did not

understand the form. However, the video shows that Det. Sabaugh was

multi-tasking, looking at her phone.

The officers questioned Mr. Blackburn about several child

pornographic photos on his cell phone. Mr. Blackburn attempted to

state when and where the photo was taken and what was happening in

the photos. The officers had him write information on the photos. He

spelled nephew as “newphe” and penis as “pines.” He did later spell

penis correctly, but twice wrote “taking” for took. In another, he wrote

“temping” presumably for attempting. Either he wrote down what the

officers told him to write down or the officers remained silent while he

wrote.

12

The officers gave him an opportunity to write an apology to the

Does. He took approximately 8 minutes to write a simple, nine-line

letter in complete silence.

The government

presented this letter

at the suppression

hearing to

demonstrate that the

written advisal was

sufficient. The

government also

suggested “Miranda

warnings are

something that are

fairly commonplace

nowadays [.] Most

people know what

those are [.]”

13

At the suppression hearing, Mr. Blackburn presented Ms. Abeles,

an educational diagnostician. Mr. Blackburn has an average IQ.

According to her, he also did about average compared to the rest of the

population in untimed tests determining ability to read and

comprehend. But in a timed test, he scored in the bottom one percentile

in reading speed and comprehension. After viewing the video of the

Miranda-waiver process, Ms. Abeles opined that Mr. Blackburn could

not read or understand the Miranda form in the time and manner he

was presented with it.

A.

District Court’s Decision

The district court believed Mr. Blackburn could read and

understanding his rights under the circumstances based on nonMiranda-related things he could do with no time pressure. The court

noted Mr. Blackburn could explain different technologies he used. The

court felt Mr. Blackburn evidenced multi-tasking skills when he

responded to Agent Breen’s questions about photos and wrote

information on the pictures. It also relied on Mr. Blackburn’s ability to

engage in written exchanges with others online, his apology letter, and

14

texted conversations with his son’s mother. The district court gave

“minimal weight” to Ms. Abeles’s testimony.

The district court determined from the video of the interrogation

that Mr. Blackburn did not appear to have difficulty understanding

what he was reading. The court deduced a full understanding of his

rights from Mr. Blackburn’s failure to ask for clarification. The district

court found Mr. Blackburn made a knowing and intelligent Miranda

rights waiver.

B.

Tenth Circuit’s Decision

The Tenth Circuit Court of Appeals affirmed the district court

noting, “There is no legal requirement that officers orally advise a

suspect of his Miranda rights.” United States v. Blackburn, No. 17-2141,

2019 WL 3991103, at *5 (10th Cir. Aug. 23, 2019). The court also

pointed out that Mr. Blackburn “initialed next to each right listed on

the waiver form and then signed the bottom portion indicating his

waiver.”

15

III. Reasons for Granting the Writ

A.

For a written-only advisal to be sufficient the

atmosphere must not be distracting; it must be conducive

to reading and understanding.

“Just as ‘no talismanic incantation [is] required to satisfy

[Miranda’s] strictures,’ it would be absurd to think that mere recitation

of the litany suffices to satisfy Miranda in every conceivable

circumstance.” Missouri v. Seibert, 542 U.S. 600, 611 (2004) (internal

citation omitted). The majority of circuits have held a written

advisement only sufficient, most also agree the defendant must be given

sufficient time to read it. See e.g., United States v. Sledge, 546 F.2d

1120, 1122 (4th Cir. 1977); United States v. Bailey, 468 F.2d 652, 659660 (5th Cir. 1972); United States v. Van Dusen, 431 F.2d 1278, 1280

(1st Cir. 1970); United States v. Osterburg, 423 F.2d 704 (9th Cir. 1970);

Bell v. United States, 382 F.2D 985, 987 (9th Cir. 1967).

Although holding a written only advisement sufficient, the

majority of courts also emphasize the better practice is to give both oral

and written warnings. In Van Dusen, the First Circuit held that as a

matter of law oral warnings were not required where the defendant was

given adequate time to read the form and was observed to read it. He

16

refused to sign the waiver but nevertheless told the agents he

understood his rights and then answered questions. The defendant

“thought that his signature was a magical key and that, so long as he

refused his signature, he could talk with impunity.” 431 F.2d at 1280.

The court noted given that belief “an oral presentation of his rights

would have added little.” But the court explained such a contradiction

“may indicate a serious misunderstanding on the part of the accused. In

such a succession of events, we wish to make it clear to the courts and

prosecutors in this circuit that the burden of persuasion resting on the

prosecution measurably increases.” Id. In Sledge the Fourth Circuit

emphasized the preferred practice included both an oral recitation of

the rights and a written explanation thereof with a request he execute a

written waiver of the rights. 546 F.2d at 1122.

The Tenth Circuit found the written-only advisement sufficient

without hesitation or expressed preference for both oral and written.

United States v. Coleman, 524 F.2d 593, 594 (10th 1975). The court

relied upon Coleman to dismiss Mr. Blackburn’s contention that the

written-only advisement without time or silence to read was

insufficient. Nor did the court in Coleman make any determinations

17

about the circumstances under which the defendant read the rights –

holding the defendant only need to be able to read, write, and

understand English. Coleman relied, as did many other circuits, on Bell,

382 F.2d 985. This reliance is misplaced; the Ninth Circuit did not

require the Government to prove a knowing waiver. But instead

required the defendant to prove he did not read and understand the

warnings and so was not properly advised of his rights. Id. at 987.

Because Bell used an incorrect standard, cases that relied on it to

uphold written-only advisals, such as Coleman, should be discounted.

For a written-only advisement to be sufficient, the Government

must prove more than the suspect can read and write. They must prove

that the suspect was given sufficient time and silence to read and

understand the rights. By giving written only advisals and not giving

suspects time to read or silence to read the forms, police effectively

render the advisement a nullity.

Further complicating a written-only advisal is how variable such

advisals are. In 2007, researchers conducted a large-scale survey of

Miranda warnings; jurisdictions submitted over 560 Miranda

Warnings. See Richard Rogers et al., The Language of Miranda

18

Warnings in American Jurisdictions: A Replication and Vocabulary

Analysis, 32 Law & Hum. Bbehav. 124, 125 (2008). Of those warnings,

95% had their own, unique formulation; i.e., there were 532 different

phrasings of the Miranda warnings. The warnings could be as succinct

as 49 words or close to two (double-spaced) pages 3 long at 547 words. Id.

The reading comprehension required vacillated wildly from grade 2.8 to

post-graduate. Id.

Just as advisement can be rendered insufficient by an officer

speed-reading it to a suspect so the Miranda warnings resemble

gibberish, so too can distracting an individual from attending to the

waiver form – especially when that is the only form of advisement the

suspect receives. “It is axiomatic that a rendering of the Miranda

warnings must be intelligible before a defendant can knowingly and

intelligently waive the rights involved.” Clay v. State, 725 S.E.2d 260,

266 (Ga. 2012).

3 https://wordcounter.io/faq/how-many-pages-is-500-words. Last visited

November 18, 2019

19

B.

Suggesting the waiver form is just a required piece of

bureaucratic paperwork renders the written-only advisal

inadequate.

After giving Mr. Blackburn the written advisal, police continued

to speak to him. They gave him only seventy-seconds, in which they

continued to converse with him, to read the form. Further, they gave

the impression the waiver was insignificant, explaining “But because of

-- so like I explained to you before, it’s a group of divisions that work on

stuff like this. And so Teresa has her policies that, she has to follow; I

have my policies that I have to follow. We have to report to 45 different

bosses.” Within ten-seconds, he said, “You know, but like Teresa was

saying, I just need you to have those, to be aware of them, okay? And

then we can -- I can get you to sign that you received them.” And after

Mr. Blackburn signed the form, Agt. Breen confirmed the paperwork as

inconsequential; “Now that that silliness is out of the way” they could

talk. “Miranda warnings … [a]re defective” when an officer

“downplay[s] the [Miranda] warnings’ significance.” Doody v. Ryan, 649

F.3d 986, 1002-03 (9th Cir. 2011) (reversing, under the deferential

AEDPA standard, for inadequate Miranda advisal where detective told

suspect “the warnings were just formalities”). By both words and

20

actions, police here treated the written-only advisement as a trivial red

tape.

“In substantially delivering the required text of Miranda,

however, the interrogator should not, even in subtle ways, seek to

undercut its essential message.” State v. Luckett 981 A.2d 835, 850 (Md.

App. 2009). If the courts presume that Miranda rights are common

knowledge, then most Miranda advisements reflect obligatory, pro

forma recitations rather than constituting a truly informative, essential

component of procedural justice – and undercut its essential message.

The manner in which police presented the written-only advisement

downplayed, diminished, and trivialized the warnings, making the

written-only advisal inadequate as a matter of law.

IV.

Conclusion

The manner in which police present a written-only advisement

can render it a nullity; it reduces giving the Miranda warnings to a

hollow and meaningless exercise. Such a pro forma ritual does not

comport with due process. This Court should grant this petition to

reaffirm the crucial importance of Miranda warnings.

21

Respectfully submitted,

DATED: November 19, 2019

s/ Margaret Katze

Margaret Katze

First Assistant Federal Defender

Counsel of Record

Attorney for the Petitioner

Office of the Federal Defender

District of New Mexico

111 Lomas Blvd., NW, Suite 501

Albuquerque, N.M. 87102

Telephone: (505) 346-2489

Facsimile: (505) 346-2494

E-mail: Margaret_katze@fd.org

I, Margaret Katze, certify this petition uses a Century

Schoolbook, a proportionally spaced 14-point type. Excluding table of

contents, table of citations, and the question presented, it contains

3,379 words. I relied on my word processor, Word Version 2016, to

obtain the word count.

s/ Margaret Katze

Attorney for Appellant

22