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United States v. Hicks

United States District Court, W.D. Virginia, Abingdon Division

July 22, 2015


Kevin L. Jayne, Special Assistant United States Attorney, Abingdon, Virginia, for United States; Michael A. Bragg, Bragg Law, Abingdon, Virginia, for Defendant.


JAMES P. JONES, District Judge.

In this criminal case, defendant Richard Jerry Hicks, charged in this court with manufacturing methamphetamine and related offenses, has moved prior to trial to exclude evidence related to his 2010 state conviction for similar conduct, which evidence the government intends to introduce under Federal Rule of Evidence 404(b).[1]

Hicks has filed two separate motions in regard to this issue. In a Motion to Suppress, Hicks contends that certain incriminating statements he made to police in 2009 about his manufacture of methamphetamine, which statements supported his 2010 state conviction for that offense, must be suppressed because he was not advised of his Miranda rights, [2] and because he was not competent to waive those rights. In a separate Motion in Limine, Hicks seeks to exclude those statements, and his subsequent conviction for methamphetamine manufacture, on the ground that such evidence is inadmissible under Rule 404(b).

An evidentiary hearing has been held on the motions, and they are ripe for decision. For the reasons that follow, I conclude that the defendant's motions must be denied.


On December 8, 2014, Hicks was indicted by the grand jury of this court for conspiracy to manufacture methamphetamine, 21 U.S.C. § 841(a)(1) (Count One), possession of pseudoephedrine with intent to manufacture methamphetamine, 21 U.S.C. §§ 841(c)(1)-(2) (Count Two), creating a substantial risk of harm to human life while manufacturing methamphetamine, 21 U.S.C. § 858 (Count Three), manufacturing methamphetamine, 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count Four), manufacturing methamphetamine on premises where a child resided, 21 U.S.C. § 860a (Count Five), and maintaining a place for the purpose of manufacturing and distributing a controlled substance, 21 U.S.C. § 856(a)(1) (Count Six).[3]

At the hearing conducted on the defendant's motions, the court heard testimony from one witness - Detective Kevin Widener of the Washington County Sheriff's Office, a member of the Drug Enforcement Administration's Local Task Force. In addition, I have reviewed the exhibits introduced at the hearing as well as other documents filed in the present record. Based on this evidence, which is essentially uncontested, I find the following facts.

Detective Widener has 18 years of experience as a police officer and 12 years as a drug offense investigator. Methamphetamine is the principal type of illicit drug he investigates and he has investigated hundreds of such cases. He has been certified by the DEA's clandestine laboratory school since 2005.

On September 10, 2009, Detective Widener and other officers executed a search warrant at a mobile home located in Abingdon, Virginia, where Hicks was living with Jessica Marie Damron. The probable cause for the search was based on a confidential informant's controlled buy of methamphetamine from Hicks, which had taken place at the residence. (Search Warrant Aff., ECF No. 81-1.)

When the officers arrived at the residence to execute the search warrant at about 10:30 p.m., Hicks and others were present. As a result of the search, officers found various items used in the so-called "red phosphorous" methamphetamine manufacturing process, including pseudoephedrine, hydrochloric acid, fuel, and other items. (Evid. Log, ECF No. 81-1.) Detective Widener did not actually participate in the search, but instead waited outside with Hicks while the home was being searched and the lab dismantled. Detective Widener testified that, although he did not question Hicks, Hicks became upset, saying that he was going to spend the rest of his life in prison and that he wanted to die - specifically, that he wanted Detective Widener to "put a bullet in him." Detective Widener testified that he often hears these types of statements from suspects who are being arrested.

Once the search had concluded, Hicks was arrested and transported to the local regional jail. Detective Widener informed the jail staff of Hicks' statements about wanting to die. Hicks was placed in a cell known at the jail as the "suicide cell." Apart from detaining suicidal inmates, the cell is routinely used for suspect interviews at the jail because it provides a private place to talk and is readily accessible. Other than a window allowing direct viewing from the outside, the cell in question is little different than any other cell in the jail, being approximately 8 or 10 feet square and containing a bed.

At approximately 2:30 a.m., Detective Widener questioned Hicks in the cell about the events leading to his arrest. No other officers were present during the interview. Detective Widener informed Hicks of his Miranda rights prior to interviewing him, but he did not obtain a written waiver of those rights. Detective Widener testified that he usually does not obtain a written waiver because his interviews are always recorded. He stated that it is his regular practice to carry a card containing a statement of Miranda rights, and to read the card along with the defendant at the time of arrest. Although Detective Widener's interview with Hicks was recorded, the electronic audio file of the interview was destroyed after Hicks' appeal period had expired, pursuant to the department's routine practice. Detective Widener prepared a written summary of the interview within a couple of days after the fact, a copy of which was introduced into evidence. (Interview Rep., ECF No. 81-2.)

According to Detective Widener, Hicks voluntarily waived his Miranda rights before being interviewed, and was not subjected to any sort of intimidation or pressure. Further, Hicks did not appear to be under the influence of drugs or alcohol during the interview. During the interview, Hicks took credit for the methamphetamine laboratory found during the police search. He stated that he had been cooking methamphetamine for about nine years and that "some say he is the best around." (Interview Rep., ECF 81-2.) Further, Hicks claimed that he cooked methamphetamine ...

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