PC World

United States v. Oehne, No. 11-2286 (2d Cir. October 25, 2012) (Kearse, Katzmann, CJJ, Gleeson, DJ) (per curiam)

This latest per curiam looks at the pretrial ruling on a motion to suppress, and the long sentence imposed in a child pornography production and distribution case. Finding no error, the circuit affirms.

The suppression issue involved custodial statements.  Oehne claimed that he unequivocally invoked his right to counsel by telling the agents that he had an attorney in a separate, unrelated case. But the circuit reminded that the right to counsel is "offense specific." And, since Oehne never requested counsel at all in the case he was being questioned about, he did not invoke his right to counsel.  Nor did he invoke his right to remain silent by not signing the Miranda waiver form. The record here showed not that he refused to sign it - although even that might not constitute an invocation of the right - but that he was never asked to. In any event, since he later spontaneously spoke with the agents about the investigation, that itself constituted a voluntary waiver of his Miranda rights.

The circuit also found no procedural error in the imposition of the sentence, which was 540 months' imprisonment. Relying on Dorvee, Oehne also argued that the sentence was substantively unreasonable, but the circuit noted important differences between Oehne's case and Dorvee. Oehne sexually abused the victim in this case for two years, starting when she was only eight years old, photographed the abuse and distributed it over the internet. To date, some 3,000 offenders had been found with some of those images. The district court also found that Oehne's conduct was part of a pattern, and that he was insufficiently remorseful. This was accordingly not one of the "run of the mill" cases identified in Dorvee; it was "among the most serious crimes we have."

Warning Signs

United States v. Williams, No. 11-324-cr (2d Cir. May 17, 2012) (McLaughin, Parker, Wesley, CJJ)

On this government appeal, the circuit reversed a district court order that suppressed a Mirandized statement, after finding that it was the product of an illegal "two-step" interrogation.

Robert Williams was arrested in a Bronx apartment in which law enforcement officers executed a search warrant. The officers found four weapons, but were expecting to uncover many more. One agent, without Mirandizing him, asked Williams who owned the guns they had found, and he said that they were his.  An hour later, the agent took Williams to a police station, where he read Williams his rights. Williams waived, and gave a detailed confession.

The district court suppressed Williams’ initial, un-Mirandized statement as outside the scope of the public safety exception, since it went to who owned the guns the agents found, and not where other guns might be located. It then, citing a recent circuit decision, Capers (see "Two Steps Forward," posted December 11, 2010), held that it was also "constrained" to suppress the station-house confession. The district court held that, under Capers, the main question was wheher the initial failure to Mirandize was "legally justifiable." Finding that it was not, it found the later Miranda waiver to be invalid.

The government, which does not seem to have challenged the suppression of the first statement, appealed the suppression of the second, and the circuit reversed.  A Mirandized statement that follows an unwarned interrogation should only be suppressed where the police used "a deliberate, two-step strategy ... to obtain the postwarning confession." A district court should "review the totality of the objective and subjective evidence surrounding the interrogations" in order to make this call.

Under this standard, the government established that there was no deliberate two-step interrogation. There was simply no evidence that the agent questioned Williams in the apartment "in a way calculated to undermine the Miranda warning later given at the station house." In context, the question who owned the guns was most plausibly seen as an effort to learn who in the apartment was the person specified in the search warrant as the agents’ principal target. Moreover, the district court was incorrect in concluding that Capers required a shift in focus from whether the first interrogation was a deliberate effort to undermine Miranda to whether the decision to forego warnings initially was "legally justifiable." Rather, Capers simply sets out the general test identified above: a review of the totality of the evidence surrounding the investigations.

Not Much Moore

United States v. Moore, No. 10-2740-cr (2d Cir. February 22, 2012) (Jacobs, Cabranes, Livingston, CJJ)

This decision marks the circuit’s latest effort to sort out a “two-step” interrogation in the wake of Missouri v. Seibert, 542 U.S. 600 (2004).

Chauncy Moore, having evaded a Connecticut police officer who had a warrant for Moore’s arrest, tossed a gun onto the roof of a house. He was apprehended on the warrant early the next day, but did not receive Miranda warnings. He spent the morning in a police station lockup, but was not brought to court due to a paperwork glitch. Later that day, still at the precinct, Moore twice asked to speak with a detective, but none was around. In the afternoon, he was moved to a cell with a pay phone, from which he spotted a narcotics officer he knew, Ronald Pine, and called him over. Pine was not involved in Moore’s case, but knew that it involved a gun. Pine asked Moore to tell him where the gun was, and Moore declined. An ATF agent happened to be nearby, and Pine called him over. Pine told Moore that he could talk to the ATF ageant after Moore helped them find the gun.

Moore agreed, told them where he tossed the gun, and drew a map. The two officers went to the location, where they were joined by detectives, and recovered the gun. Pine told the detectives that Moore wanted to speak to them and, about ninety minutes after Moore first started talking to Pine, they returned to the station house and interviewed him, this time giving him Miranda warnings. Moore waived his rights and confessed.

The district court held that the initial, un-Mirandized statements should be suppressed, but also held that the later, warned statement was admissible. On Moore’s appeal, the circuit, after surveying Seibert and its progeny, affirmed.

Here, there was no subjective evidence that Pine and the ATF agent were trying to circumvent Miranda. Rather, while the “public safety” exception to Miranda might not have applied on the facts here, the “undoubted public safety considerations [of a discarded gun] plausibly account for the conduct of the police in a way that militates against finding that the first interview was a premeditated attempt to evade Miranda.” Similarly, the “objective evidence,” including the narrowness of the overlap between the subjects of the two interrogations, the participation of different officers, and the elapse of more than ninety minutes “decidedly points against concluding that the government engaged in a deliberate two-step process designed to undermine Moore’s Fifth Amendment rights." Finally, the circuit noted that it was clear that Moore’s later statement was entirely voluntary, and that the Miranda waiver was itself valid.

Moore also argued, alternatively, that the questioning occurred in violation of his Sixth Amendment right to counsel. The circuit agreed with the district court, however, that there was no Sixth Amendment violation because the right to counsel had not yet attached to the federal gun charge to which he pled guilty.

Custody Battle

United Stateds v. FNU LNU, No. 10-419-cr (2d Cir. August 9, 2011)
(Jacobs, Calabresi, Lohier, CJJ)

Defendant, traveling under the name Sandra Calzada, arrived at JFK on a flight from the DR. A border patrol agent noticed that Calzada had an open arrest warrant, and flagged her for secondary inspection. An “armed guard” escorted her to the secondary inspection room, from which she was not free to leave, and the agent questioned her for 90 minutes without first reading the Miranda warnings.

The interrogation included questions about her pedigree, passport and the like. Eventually, the agent found some discrepancies: she did not look like the photograph on the original passport application, gave inconsistent biographic information, and could not recall any of her addresses in Puerto Rico, where she said she was born.

The district court refused to suppress the statements, holding that Miranda warnings were not required during a “routine border crossing inquiry” and because the questioning was not interrogation. The agent’s “function or intent” was to determine the defendant’s true identity.

The circuit affirmed, albeit on different grounds. The majority squarely rejected the notion that routine border questioning could never be “custodial interrogation” requiring Miranda warnings. While there is a Fourth Amendment exception for routine border searches, there is “no similar exception to Miranda’s prophylactic requirement under the Fifth Amendment.” The circuit has long held that where a “stop” was permissible under the Fourth Amendment is “irrelevant to the Miranda analysis.”

The question thus remains, for Miranda purposes, whether the suspect was “in custody.” The standard is whether “a reasonable person in the suspect's position would have understood herself to be subjected to restraints comparable to those associated with a formal arrest.” This is a very fact-bound determination requiring close consideration of the circumstances surrounding the encounter with the authorities - the interrogation’s duration, its location, whether the suspect volunteered for the interview, whether the officers used restraints, whether weapons were present or drawn, where the officers told the suspect she was free to leave or under suspicion, and a juvenile suspect's age. A “reasonable person’s expectations about how the questioning is likely to unfold are also relevant.” This last consideration is important at borders, since a reasonable traveler will “expect some constraints as well as questions and follow-up,” without considering himself to be under arrest.

Here, the court identified “several” facts to suggest that the interrogation was custodial - “it took place in a closed room, out of public view; armed guards escorted the defendant there and remained in the vicinity; it lasted for 90 minutes ... [and the agent] took the defendant’s fingerprints and did not inform her she was free to go. On the other hand, “the officers never drew their weapons, no physical restraints were used; and, crucially, a reasonable person would recognize that the questions being asked were “par for the course of entering the country from abroad.”

That said, after seventeen pages of reasoning, here is the court’s entire analysis - a single sentence: “In light of the totality of these circumstances, we conclude that a reasonable person in the defendant’s position would not have considered what occurred to be the equivalent of a formal arrest.”

Conviction affirmed.

Chief Judge Jacobs concurred in result, but did not sign on. He thought this case was too easy, and did not “remotely” merit a “tour d’horizon of Miranda law” or “pages of tendentious analysis in which useful precedents of this Circuit are deconstructed.” To the chief, the majority opinion “unnecessarily complicates what should be a straightforward holding.” Miranda warnings are simply not required in a routine secondary inspection when a reasonable person would consider the questions asked to be relevant to an admissibility or customs determination.

Reversal of Fortune

United States v. Plugh, No. 10-2815-cr (2d Cir. August 8, 2011) (Jacobs, Livingston, CJJ, Rakoff, DJ)

This about-face arises from a supervening Supreme Court decision.

In its original opinion in this case, a divided panel held that the defendant had successfully invoked his Miranda rights by declining to sign a waiver-of-rights form. See “Car, Men, Miranda,” posted July 31, 2009. The circuit affirmed, on a government appeal, suppression of the defendant’s statements, viewing the case as an application of Davis v. United States, 512 U.S. 452 (1994), which held that a suspect must “unambiguously” invoke his Miranda rights to cut off questioning.

But a 2010 case, Berghuis v. Thompkins, 130 S. Ct. 2250 (2010), held that the Davis “unambiguous” standard should control not just the “cut-off,” but also the initial invocation of the rights. There, Court found that the suspect’s refusal to sign was not an “unambiguous” invocation of his rights.

Viewing this as an “intervening change in the law” that “compels a different outcome” on the facts of the case, the court “reconsidered the district court’s order of suppression” and vacated it.

Two Steps Forward

United States v. Capers, No 07-1830-cr (2d Cir. December 1, 2010) (Pooler, Hall CJJ, Trager, DJ)

This decision, which was sub judice for nearly two and one-half years, attempts to sort out the confusion left by the Supreme Court’s decision in Missouri v. Seibert, 542 U.S. 600 (2004).

Seibert involved a two-step interrogation strategy that was calculated to circumvent Miranda. The Missouri officers there had been trained to withhold Miranda warnings and question a suspect until he confessed. They would then Mirandize him, secure a waiver, and elicit a second confession. A four-justice plurality held that this two-step procedure violated Miranda because a suspect “hearing warnings only in the aftermath of interrogation and just after making a confession” would “hardly think he had a genuine right to remain silent.” The plurality identified five factors to be weighed in analyzing the effectiveness of post-interrogation Miranda warnings.

Justice Kennedy concurred in the judgment but believed that the five-factor test was too broad because it would cover “both intentional and unintentional two-stage interrogations.” His approach was to ask whether the officer had used a “deliberate two-step strategy” in a “calculated way” to undermine Miranda and “obscure” the “significance” of the warnings when given. If not, then, the only question would be whether the second statement was voluntary. But if so, then a court would have to consider whether any curative measures had been taken to ensure that a “reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning” and waiver.

Here, the defendant, a postal worker suspected of stealing money orders from Express Mail envelopes, was apprehended after he and a co-worker took a test letter containing money orders into a trailer and an alarm indicating that the package had been opened went off. Postal inspectors arrested Capers, handcuffed him, and brought him to a supervisor’s office. An inspector, named Hoti, questioned him for five minutes without Miranda warnings and he confessed.

Two other inspectors then transported Capers to another postal facility, where they handcuffed him to a chair in an interview room. About ninety minutes after the initial un-Mirandized interrogation, Hoti read Capers his rights and Capers signed a written waiver and confessed again. After a hearing, the district court suppressed this confession and, on the government’s appeal, a divided Second Circuit panel affirmed.

The court’s analysis began with its major post-Seibert decision, United States v. Carter, 489 F.3d 528 (2d Cir. 2007), which held that Seibert applies where law enforcement officers use a “deliberate two-step strategy” to obtain a post-warning confession. Capers' case, then, turned on the meaning of “deliberate.”

The majority began by observing that since, in Seibert, the police officers admitted that they had been trained to use a Miranda-avoiding technique, “Justice Kennedy had no reason to explore how a court should determine when a two-step interrogation strategy had been executed deliberately.” A Ninth Circuit decision, Williams, identifying this same problem, looks to whether “objective” and “available subjective evidence” support “an inference that the two-step interrogation procedure was used to undermine” Miranda. Similarly, an Eleventh circuit case, Street, looks to the “totality of the circumstances,” including the “timing, setting and completeness of the pre-warning interrogation, the continuity of police personnel and the overlapping content of” the two confessions.”

Here, the court “join[ed] our sister circuits in concluding that a court should review the totality of the objective and subjective evidence surrounding the interrogations in order to determine deliberateness, with a recognition that in most instances the inquiry will rely heavily, if not entirely, upon objective evidence.” On the “unsettled question of which party bears the burden of proving deliberateness or absence thereof,” the court held that the burden rests on the prosecution to disprove deliberateness, but only by a preponderance of the evidence.

Here, the government did not meet that burden. Hoti's proffered reasons for not Mirandizing Capers before the first interview were that he (1) wanted to make sure he recovered the stolen money orders and (2) wanted to quickly determine whether Caper’s co-worker was involved so that, if he was not, he could release him. However, “[n]either of these reasons ... justifies delaying a Miranda warning once it is obvious that a suspect is in custody.” There is no Miranda exception for evanescent evidence; the “only legitimate reason to delay intentionally a Miranda warning until after a custodial interrogation has begun is to protect the safety of the arresting officers of the public.”

While “inexperience” or a “rookie mistake” may save a case under Seibert, here there was no evidence that Hoti was inexperienced and significant evidence that he did not make a mistake. He had been a New York City police officer for three years before he was a postal inspector, and had been trained to give Miranda warnings. He was also clearly in a position to Mirandize Capers - since the sting was planned, he “had time to think through what procedural steps he would need to take following arrest in order to build his case for prosecution.”

Ultimately, and quite significantly, since the circuit does not usually do this, the majority found Hoti's reasons for not reading Capers his rights “to lack not only legitimacy, but also credibility.” It was doubtful that Hoti, who had witnessed the co-worker assist Capers, would have let the co-worker go if Capers had exonerated him. Nor was the evidence truly evanescent; Capers was arrested immediately after the test package alarm went off and never left the the area where he was caught.

The majority also cited objective evidence in support of its conclusion. The initial confession was almost entirely complete, and there was “considerable overlap” in the content of the two statements. The “circumstances surrounding” the two sessions of the interrogation - their timing, and the continuity of the cast of interrogating officers - were all “indicative of a deliberate two-step interrogation.”

Finally, no “curative measures intervened” to restore Capers' opportunity to voluntarily exercise his Miranda rights.” So far, only two such measures have been identified. A “substantial break in time and circumstances” or “an additional warning” explaining that the first statement was inadmissible. Neither of those circumstances was present here.

Judge Trager dissented, finding that the majority’s approach “undermines Justice Kennedy’s controlling opinion” and “replaces it with” the test proposed by the “non-controlling” plurality opinion. His view was that a “more faithful application of Justice Kennedy’s Seibert concurrence requires a conclusion that Capers’ post-warning statements are admissible” because the inspector “did not deliberately utilize a two -step interrogation technique."

Car, Men, Miranda

United Statse v. Plugh, No. 07-2620-cr (2d Cir. July 31, 2009) (Jacobs, Wesley, Hall, CJJ)

In September of 2005, FBI agents arrested Gordon Plugh on child pornography charges. In the car, an agent read him his Miranda rights and asked him to sign a waiver form. Plugh told the agent that he understood his rights because he was a former correction officer. But he added that he was “not sure” if he should make any statements and wondered whether he needed a lawyer. Plugh refused to sign the form, however, and said that he did not want to sign anything at that time.

During the long ride to headquarters, the agents told Plugh what he was charged with, and he asked them what he should do. The agents told him that they would relay any cooperation to the AUSA. Later, after processing him at their office, the agents told Plugh that they were about to hand him over to the Marshals and that if he “wanted to make any statements this was the” time to do it. Plugh then agreed to make statements, was re-advised of and waived his Miranda rights, and confessed.

The district court suppressed the resulting statement and, on the government’s appeal, the a divided panel affirmed.

The majority first held that Plugh’s refusal to sign the advice-of-rights form constituted an “unequivocal” invocation of his right to remain silent. Although Plugh’s pre-refusal statements were “ambiguous,” his refusal to sign was a clear signal that he was not willing to waive his rights.

An invocation of the right to remain silent must be “scrupulously honored." Here, it was not. Under circuit precedent, both telling a suspect that his cooperation will be brought to the prosecutor’s attention and telling him that “now is the time” to talk constitute interrogation. Accordingly, the district court correctly suppressed the confession that was precipitated by these remarks.

In dissent, Chief Judge Jacobs disagreed with the majority’s premise that Plugh’s refusal to sign the written waiver operated as an invocation of his Miranda rights, particularly in light of his nearly simultaneous ambiguous statements.

Venue Wish Upon A Star

United States v. Rommy, No. 06-0520 (2d Cir. November 6, 2007) (Jacobs, Walker, Raggi, CJJ).

Henk Rommy, a Dutch national, was tried in this district on charges that he managed a vast ecstasy importation scheme from Europe. The scheme’s ties to this district were quite thin - although the goal was to get the drugs to New York, only five things actually occurred here: a call from a cooperating witness in Manhattan to Rommy in the Netherlands; a second call between Rommy and the New York informant about one year later, although there was a dispute as to who initiated it; a call to a local FBI agent from Rommy and the informant, both in Europe, although there was a dispute as to whether Rommy or the informant placed the call; and, finally, two calls from the agent in Manhattan to Rommy in Europe.

At trial, Rommy claimed lack of venue. The court charged the jury that if it found that, after the conspiracy was formed, “a telephone call in furtherance of the conspiracy was made to a location in the [district] that would be sufficient, ... even if the call was made to an undercover agent or some other nonconspirator.” During deliberations, the jury sent the court a note asking if venue could be proved by a call from the agent to Rommy. The court answered in the affirmative - as long as the conspiracy was already formed and the call furthered it. The court also instructed that venue could be established if nonconspirator made the call, again, as long as the call was induced by the conspiracy or furthered it.

On appeal, the court upheld the instruction, a question of first impression here, agreeing with the First and Seventh Circuits that “a telephone call placed by a government actor within a district to a conspirator outside the district can establish venue within the district provided the conspirator uses the call to further the conspiracy.” In fact, the court stressed, who placed the call, just like its direction, is irrelevant. What matters is whether the conspirator used the telephone call to further the objectives of the conspiracy. By doing so, he “effectively propels not only his voice but the scheme itself beyond his own physical location into that of the person with whom he is speaking.”

The court also held that Rommy did not need to have actual knowledge that the call affected this district; reasonable foreseeability is sufficient.

This decision leaves open the somewhat mythical defense of “manufactured venue.” The defense arises from a footnote in a 1982 case, but the court has never actually applied it. Although two other courts have outright rejected it, and one more has questioned it, here the court did not weigh in because the “evidence clearly does not support its application to this case.”

Rommy’s case also contains an interesting discussion of evidence obtained in a foreign country through the Mutual Legal Assistance Treaty (“MLAT”) between the United States and the Netherlands. Like his venue claim, this issue was ultimately unavailing for Rommy: the actions complained of did not violate U.S. law, and the treaty does not create “any judicially enforceable individual right that could be implicated by the government’s conduct here.”

Lastly, Rommy claimed that his interview with a DEA agent while Rommy was in prison in Spain violated the Fifth and Sixth Amendments. But here there was no Miranda issue because Rommy’s statements were voluntary, and thus the interview did not constitute “interrogation.” His Sixth Amendment claim was a closer call; he was interviewed after having been indicted, and did not expressly waive counsel. The court ducked the issue by characterizing the interview as “a meeting that [Rommy] had requested with persons he knew were law enforcement officers [where he] was asked a few neutral follow-up questions in the course of a lengthy volunteered statement.” It held that, even if these “follow-up” questions violated the Sixth Amendment, any error in admitting Rommy’s statement was harmless.