United States v. Todd Paishon

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-50008

Plaintiff-Appellee, D.C. No. 2:19-cr-00304-PA-2

v. MEMORANDUM* TODD KAMAWU PAISHON,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Argued and Submitted March 1, 2021 Pasadena, California

Before: SILER,** HURWITZ, and COLLINS, Circuit Judges. Concurrence by Judge COLLINS

Todd “Nadine” Paishon appeals her conviction for the possession of stolen mail, asserting a Miranda violation. Paishon also seeks vacatur of two conditions of supervised release. We affirm the conviction but vacate her sentence and remand

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

for the limited purposes of amending Special Condition 9 and correcting Standard Condition 14 of supervised release.

1. The only relevant statement obtained before Paishon was given valid Miranda admonitions was her response to an officer’s inquiry that the seized mail was “already in the car” when she borrowed it from her friend. This is a false exculpatory statement. But, even assuming it was improperly admitted, any error was harmless, as “substantial, independent, and credible evidence” of Paishon’s guilt was presented at trial. United States v. Noti, 731 F.2d 610, 615-16 (9th Cir. 1984).

The government introduced forty-four pieces of mail piled on the floor in the passenger side of the car, some of which was still stuck to a “fishing” tool. The pile of mail was easily visible to Paishon and would have taken an extended period to accumulate, as the fishing tool could only pick up four pieces of mail from a collection box per attempt, something confirmed by the government’s mail theft expert and her friend in the car, Marco Contreras.

Contreras testified that he and Paishon had been together at a hotel earlier that evening and Paishon told Inspector Granger after receiving Miranda warnings that Contreras had left and returned to the car more than once with stolen mail. Paishon and Contreras were longtime friends and Contreras had a history of stealing mail. (Although Paishon argues the statement improperly corroborated Contreras’ testimony, many of his other statements were separately corroborated.)

Moreover, the mail theft victims testified that they had deposited their mail in separate collection boxes, which were scattered across nearly a quarter of a mile and separated by multiple intersections. Officer Martinez testified that there was more mail in the car than he saw Contreras carrying and that Paishon was waiting in the car with her headlights on, across the street from the final collection box.

The overwhelming evidence that Paishon was a willing and knowing participant in mail theft rendered the admission of her pre-Miranda statements harmless beyond a reasonable doubt. See United States v. Butler, 249 F.3d 1094, 1101 (9th Cir. 2001).

2. Under 18 U.S.C. § 3583(d), conditions of supervised release must: “(1) be reasonably related to the goals of deterrence, protection of the public, and/or defendant rehabilitation; (2) involve no greater deprivation of liberty than is reasonably necessary to achieve those goals; and (3) be consistent with any pertinent policy statements issued by the Sentencing Commission.” United States v. Napulou, 593 F.3d 1041, 1044 (9th Cir. 2010). Paishon objects to Special Condition 9, only to the extent it limits the use of her preferred name “Nadine” in social settings without prior approval from her probation officer, and the government agrees. We vacate the sentence in part, and remand for the limited purpose of amending Special Condition 9 to remove this restriction.

3. The government also agrees to vacate Standard Condition 14. We

vacate the sentence in part, and remand for the limited purpose of allowing the district court “to craft a supervised release condition that accords with [defendant’s] criminal history.” United States v. Magdirila, 962 F.3d 1152, 1159 (9th Cir. 2020).

Paishon’s conviction is AFFIRMED. Her sentence is VACATED and REMANDED for the limited purpose of amending Special Condition 9 and correcting Standard Condition 14 of her supervised release.

FILED United States v. Paishon, No. 20-50008 APR 26 2021 COLLINS, Circuit Judge, concurring in the judgment: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I agree that Paishon’s conviction should be affirmed, but I would do so on the ground that there was no violation of Miranda v. Arizona, 384 U.S. 436 (1966). Paishon contends that our decision in United States v. Henley, 984 F.2d 1040 (9th Cir. 1993), establishes a bright-line rule that the “questioning of a handcuffed [person] who was seated in the back of a police car” is always “custodial interrogation” that requires Miranda warnings. While that will often, and perhaps typically be true, I do not think it is correct in the unique circumstances of this case.

Henley concluded that there was a custodial arrest in that case because, considering all of the circumstances, the defendant there was “not free to leave” and he had been “‘taken into custody or otherwise deprived of his freedom of action in [a] significant way.’” 984 F.2d at 1042 (quoting Miranda, 384 U.S. at 444). But Henley did not mention or address the circumstance of a so-called “Terry stop,” see Terry v. Ohio, 392 U.S. 1 (1968), and the test Henley applied— whether the person was “free to leave” or had had his or her “freedom of action” restrained in a “significant way”—is not the test for determining whether Miranda applies in the context of a Terry stop. As the Supreme Court has explained, “few motorists would feel free either to disobey a directive to pull over or to leave the *2 scene of a traffic stop without being told they might do so.” Berkemer v. McCarty, 468 U.S. 420, 436 (1984). But the Court “[n]evertheless” has “held that a person detained as a result of a traffic stop is not in Miranda custody because such detention does not sufficiently impair the detained person’s free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights.” Howes v. Fields, 565 U.S. 499, 510 (2012) (simplified) (emphasis added). Thus, instead of “accord[ing] talismanic power to the freedom-of-movement inquiry,” we must ask “the additional question whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.” Id. at 509 (simplified).

Applying these standards, I agree with the district court’s conclusion that, under the circumstances of this case, Paishon was not “in Miranda custody” at the time of the challenged statements and was not then required to be given Miranda warnings. Howes, 565 U.S. at 510. The detention began as a middle-of-the-night Terry stop, and even though Pashion was asked a few minutes later to step out of the car and sit on the curb, Pashion does not contend that the encounter had at that point ripened into an arrest. The fact that Paishon was subsequently handcuffed, and then placed in a patrol car, would ordinarily cross the line to an arrest, but here Paishon was explicitly told four times—twice when being handcuffed and twice more when being placed into the police car—that Paishon was not under arrest. *3 In making the first of these four comments, the officer explained that the handcuffs were being used only for safety reasons based on the time of day (about 3:00 A.M.) and that their use did not mean that Paishon was under arrest. Moreover, the Terry stop was not impermissibly prolonged, because Paishon’s passenger (Marco Contreras) had obstructed the officers’ inquiries by providing a false name. See Rodriguez v. United States, 575 U.S. 348, 354–55 (2015). Less than three minutes after finally confirming Contreras’s identity, which was about 15 minutes after Paishon had been placed in the patrol car, an officer then asked Paishon a few questions, all of which related to the purpose of the Terry stop, and it is only the responses to those questions that are at issue here. Paishon obviously did not believe that an arrest had occurred by that point because, after that brief questioning was completed, Paishon later stated to another officer, “I hope I’m not getting arrested.” I agree with the district court that these particular circumstances did not “present[] the same inherently coercive pressures as the type of station house questioning at issue in Miranda,” Howes, 565 U.S. at 509, and that the officer was not required to give Miranda warnings before asking appropriate questions related to the Terry stop. The motion to suppress was properly denied, and the statements at issue were properly admitted.

I also agree that the district court abused its discretion by imposing a supervised released condition that effectively forbade Paishon, who goes socially *4 by “Nadine,” from using that name in social settings without written permission from the probation office. There is no apparent penological need for extending the restriction to cover that specific usage, and given Paishon’s transgender status, the prohibition imposes a uniquely significant burden. And I also agree that Standard Condition 14 must be vacated in light of United States v. Magdirila, 962 F.3d 1152 (9th Cir. 2020).

For the foregoing reasons, I concur in the judgment.