                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0812n.06

                                            No. 13-5516                                  FILED
                                                                                     Sep 05, 2013
                          UNITED STATES COURT OF APPEALS
                                                                               DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                )        UNITED STATES DISTRICT
                                                          )        COURT FOR THE
v.                                                        )        WESTERN DISTRICT OF
                                                          )        TENNESSEE
SAM DEXTER PARHAM, JR.,                                   )
                                                          )              OPINION
       Defendant-Appellant.                               )
                                                          )



BEFORE: MOORE and McKEAGUE, Circuit Judges, and HELMICK, District Judge.*

       PER CURIAM. This appeal presents a challenge to the district court’s denial of defendant

Sam Parham’s motion to suppress evidence allegedly obtained in violation of his Fifth Amendment

rights. Parham entered into a conditional plea of guilty, pursuant to Fed. R. Crim. P. 11(a)(2). This

plea preserved Parham’s right to withdraw his guilty plea if he prevailed on appellate review of the

motion to suppress.

       The sole issue raised is whether the district court acted impermissibly when it shifted the

burden of proof onto the defendant Parham to show that Miranda warnings were given to him. Both

the government and Parham are in agreement that an improper shifting occurred. We concur.




       *
        The Honorable Jeffrey J. Helmick, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 13-5516
United States v. Parham

       Our case law has made clear that “[i]t is the government’s burden to establish a waiver [of

Miranda rights] by a preponderance of the evidence.” United States v. Adams, 583 F.3d 457, 467

(6th Cir. 2009). The burden of proof is the government’s, not the defendant’s. The shifting of the

burden onto the defendant in the present case was in error.

       This mistake was not harmless. The government has acknowledged that the “officer was

never directly asked if he administered the Miranda warnings to Parham.” (Appellee’s Mot. for

Remand, p. 6). Nor does our review of the record disclose evidence that the government carried its

burden. Thus, acknowledging the district court improperly shifted the burden and finding the

government did not demonstrate that Parham was advised of his Miranda rights, we VACATE the

order denying suppression of Parham’s statement and GRANT the government’s motion to remand.

On remand, the district court shall allow Parham, at his prerogative, to withdraw his guilty plea, and

shall otherwise undertake further proceedings not inconsistent with this opinion.




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