UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

_____________________________
)
UNITED STATES OF AMERICA )
)
V. ) Doc. No 13-CR-10238
)
ROBEL KIDANE PHILIPOS )
_____________________________ )

MOTION REGARDING COURTROOM PRACTICE
AT MOTION TO SUPPRESS HEARING

Now comes the defendant, Robel Philipos, who, by and through counsel, respectfully
requests that this Court, as constitutionally mandated, place the burden of production and
persuasion as to the voluntariness of the defendants statements on the Government before
requiring the defendant to testify at the suppression hearing. In support of this Motion the
Defendant states as follows:
ARGUMENT
In Jackson v. Denno, 378 U.S. 368, 393-95 (1964), the Supreme Court held that
defendants are entitled to a mandatory hearing on the voluntariness of any confession that the
government seeks to introduce against them. The Supreme Court has also held that at the
suppression hearing the prosecution must prove at least by a preponderance of the evidence that
the confession was voluntary. Lego v. Twomey, 404 U.S. 477, 626-27 (1972) (emphasis added);
see also Missouri v. Seibert, 542 U.S. 600, 608 n1 (2004) (The burden of showing admissibility
rests, of course on the prosecution) (internal citations and quotations omitted); U.S. v. Jackson,
918 F.2d 236, 241 (1st Cir. 1990) (The burden rests with the government to prove voluntariness
by a preponderance of the evidence.); U.S. v. Holmes, 632 F.2d 167, 169 (1st Cir. 1980) (when
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a defendant claims that his will was overborne . . . the government has the burden of proving by
a preponderance of the evidence that his statement was voluntary.).
These cases make it clear that, at a Denno hearing, it is the government who bears the
burden of production and persuasion not the defendant. Yet, in this case, the Court is creating its
own burden shifting scheme whereby the Defendant must make an initial threshold showing,
before the government is required to produce evidence and make its case. This burden shifting
scheme is inapposite to the clear Supreme Court and First Circuit precedent and should not be
used at the May 13, 2014 suppression hearing. The typical procedure at a Motion to Suppress
hearing is to require the Government to come forward with its evidence, allow the Defendant to
cross examine any witnesses, and then, after the government has presented its case, allow the
Defendant to submit any additional evidence they deem relevant to the issue of suppression. See
e.g., U.S. v. Cosme, 484 F.Supp.2d 194, 196 (D. Mass. 2007) (Evidentiary hearings on the
defendants motion . . . The government presented its evidence on the first day, and the
defendant testified on the second day).
If the Court requires the Defendant to make an initial showing and produce his own
evidence, his due process rights will be voided and the governments burden of proof and
production will vanish. This is impermissible because, as the Supreme Court found in Denno,
the defendant in a criminal case has a due process right to a fair hearing and a reliable
determination on the issue of voluntariness. Denno, 378 U.S at 377 (emphasis added). By
creating its own burden shifting scheme, the Court has undercut both the fairness and reliability
of such a determination. This burden shifting harms the fairness of the hearing by placing the
burden of production on the defendant rather than the government, and requing him to be
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offensive with evidence rather than defensive. This is unfair because it is the defendant who
should be confronting the Governments evidence, not the other way around.
Moreover, defendants confronting the voluntariness of their statements often have no
other way of meeting this threshold showing without offering their own testimony. The
Government does not face a similar problem because it can show voluntariness by having the
agents testify, introducing evidence regarding Miranda processes and other atmospherics
whereas the defendant typically only has his word. This deprives him of his right to remain silent
and immediately affords the government the opportunity to cross examine him. The burden
shifting scheme, therefore, rather than protecting the defendants constitutional rights,
automatically provides the government with a practice run cross examining him.
Further, when a defendant is charged with a violation of 18 U.S.C. 1001(a)(2) one of
the ultimate issues that will need to be shown at trial is that the statements were knowingly and
voluntarily made. Therefore, the general protection provided by Federal Rule of Criminal
Procedure 104, which prevents defendants testifying about preliminary matters from being cross-
examination on other issues in the case, is of no use to Mr. Phillipos. In this case it is impossible
to insulate the suppression hearing from crossing into the merits of the case. No limiting
instructions could prevent the government from questioning Mr. Phillipos about the knowledge
he possessed when making his statements which is the exact evidence they will present at trial
to prove the merits of their case. The burden shifting scheme proposed by the court forces the
defendant to make the Hobsons choice of either taking the stand so that he is afforded his
constitutionally mandated hearing and being subjected to extensive cross examination on an
issue that will be dispositive of his guilt or remaining silent and forfeiting his due process rights.
This erodes the reliability of any determination about voluntariness because the Court could
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never be sure whether the defendant was protecting his trial rights by withholding evidence.
Requiring the defendant to confront this dilemma in a situation where the government bearus the
burden is not only unfair, but it is also unconstitutional.
CONCLUSION
For the aforementioned reasons, the Defendant Robell Phillipos, respectfully requests that
at the May 13, 2013 suppression hearing, the initial burden of production and persuasion be
placed on the Government. In the alternative, if the Court is unwilling to amend its practice
regarding Denno hearings, the Defendant respectfully requests that it find his affidavit, which
was submitted with the Motion to Suppress, is a sufficient threshold showing to meet his burden,
and it is now incumbent upon the government to establish, by a preponderance of the evidence,
that his statements were voluntary.



Respectfully Submitted,
Robel Phillipos
by his attorney

/s/ Derege Demissie________
Derege B. Demissie
DEMISSIE & CHURCH
929 Massachusetts Avenue, Suite 101
Cambridge, MA 02139
(617) 354-3944




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CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent
electronically to the registered participants as identified on the NEF and paper copies will be sent
to those indicated as non-registered participants on May 7, 2014.

s/ Derege B. Demissie
_________________________
DEREGE B. DEMISSIE, ESQ.


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