                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       January 29, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court

 UNITED STATES OF AM ERICA,
               Plaintiff-Appellee,                        No. 06-4067
          v.                                      (D.C. No. 05-CR-228-PGC)
 TADDY JACKM AN,                                           (D. Utah)
               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before K ELLY, M cK AY, and LUCERO, Circuit Judges.


      This is a direct criminal appeal challenging the validity of a M iranda

warning. 1 Appellant Taddy Jackman pleaded guilty to possession of ammunition

by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), but expressly

reserved his right to appeal the district court’s denial of his motion to suppress

statements made in violation of his M iranda rights. Appellant was sentenced to

forty-four months’ imprisonment with a thirty-six-month term of supervised


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
      1
       After examining the briefs and the appellate record, this panel has
determined unanimously to honor the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f). The case is therefore ordered
submitted without oral argument.
release.

      Appellant was arrested by Salt Lake City police in relation to a gang-

related shooting that injured three people. Appellant’s interrogation and

confession were videotaped. Just prior to reading Appellant his M iranda rights,

the interviewing police officer stated: “So, before we get too far into it, though, a

couple of formalities, um, since obviously, you’re not free to leave after we read

you your rights.” M iranda was then read to Appellant, who verbally

acknow ledged his rights before confessing. Appellant filed a motion to suppress

this confession on the grounds he did not knowingly and voluntarily waive his

M iranda rights. The matter was referred to a magistrate judge, who

recommended that the motion to suppress be denied, and the district court adopted

the magistrate judge’s report and recommendation without additional comment.

      In reviewing the grant or denial of a motion to suppress, we accept the

district court’s factual findings unless clearly erroneous and consider the evidence

in the light most favorable to the district court’s determination. United States v.

Lopez, 437 F.3d 1059, 1062 (10th Cir. 2006). W e conduct de novo review on the

ultimate issue of whether a statement was voluntary, “taking into account the

totality of the circumstances surrounding the confession.” Id. (quotation

omitted). The government bears the burden of showing, by a preponderance of

the evidence, that a confession is voluntary. M issouri v. Seibert, 542 U.S. 600,

608 n.1 (2004). “W aiver of one’s Fifth A mendment privilege against

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self-incrimination requires that the individual ‘voluntarily, knowingly and

intelligently’ waive his constitutional privilege.” United States v. M orris, 287

F.3d 985, 988 (10th Cir. 2002) (quoting M iranda v. Arizona, 384 U.S. 436, 444

(1966)).

      Appellant argues that “[t]he officers ‘down played’ and misrepresented the

purpose of his M iranda w arning to give the impression that the rights were mere

formalities, or rights that should not be taken seriously.” (A ppellant’s Br. at 5-6.)

According to Appellant, the officer’s remark led him to believe that he was

agreeing only to being placed in custody, not waiving his rights. Appellant also

contends that his two-week long attempt to avoid the police, during which he

abused cocaine and methamphetamine, left him sleep-deprived and unable to

knowingly and voluntarily consent to waiving M iranda. Appellant relies heavily

on United States v. M iller, No. 04-CR-491, 2005 W L 3478323, at *4 (D. Neb.

Dec. 20, 2005) (unpublished), to support his argument. That case, however,

centered on police questioning after the defendant’s express request to speak with

a law yer. Because of that refusal, the court found that the police officer’s

comm ent about the nature of the M iranda warning, 2 coupled with comm ents that

led the defendant to believe he w as being questioned about an unrelated matter,




      2
        In M iller, the officer stated: “[S]ince you’re in jail I gotta read these to
you, if w e were out on the street I wouldn’t because you wouldn’t be under arrest,
okay?” 2005 W L 3478323, at *2.

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rendered the M iranda warning involuntary under the totality of those

circumstances.

      Those are not the circumstances of this case. Although the videotape first

show s Appellant resting his head on the interview table and rubbing his eyes,

when the questioning began he sat up and appeared alert and articulate. See

United States v. Curtis, 344 F.3d 1057, 1066 (10th Cir. 2003) (concluding that

defendant was lucid and aw are of his rights in part due to the district court’s

review of the videotaped interview). The officer read the four portions of the

M iranda warning, pausing after each one to await A ppellant’s response.

Although Appellant was not expressly asked whether he waived these rights and

was not asked to sign a waiver form, Appellant acknowledged each of his

M iranda rights and, when asked if he had “any questions about it at all,” he

responded “No sir.”

      Appellant’s confusion over the meaning of the M iranda warning is lessened

because he had been taken into custody at a residence, transported to the police

station, and questioned. Throughout this period he expressed his w illingness to

talk. He asked only to speak with his mother, not an attorney. Appellant

recounted the history of animosity between certain gang members w hich led to his

shooting the three individuals. Appellant’s lengthy story required minimal

prompting by the officer. Indeed, the officer asked relatively few questions.

Appellant even asked for paper in order to better illustrate the interrelation of all

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the various involved gang members. M oreover, it is significant that Appellant has

been arrested on numerous occasions and has been convicted of several felony

charges in matters where he was represented by legal counsel. See Smith v.

M ullin, 379 F.3d 919, 933 (10th Cir. 2004) (stating that “[t]he concepts

encompassed by M iranda were not foreign” to defendant where he was

represented by counsel during a prior conviction); see also United States v. Toles,

297 F.3d 959, 966 (10th Cir. 2002) (finding prior felony conviction provided

“experience with the criminal justice system”).

      After reviewing the parties’ briefs, the magistrate judge’s report and

recommendation, and the record on appeal, including the videotape of the

interrogation, we conclude that Appellant knowingly and voluntarily waived his

M iranda rights. Accordingly, we AFFIRM the district court’s denial of

Appellant’s motion to suppress.

                                               Entered for the Court

                                               M onroe G. M cKay
                                               Circuit Judge




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