United States v. Donald ( 2023 )

United States Court of Appeals
For the First Circuit
No. 22-1723
UNITED STATES,
Appellee,
v.
DANIEL DONALD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Barron, Chief Judge,
Howard and Gelpí, Circuit Judges.
Michael Pabian, for appellant.
Karen L. Eisenstadt, Assistant United States Attorney, with
whom Rachael S. Rollins, United States Attorney, was on brief, for
appellee.
October 16, 2023
BARRON, Chief Judge. This appeal concerns the challenge
that Daniel Donald brings to his five 2021 convictions in the
United States District Court for the District of Massachusetts on
federal drug- and gun-related charges. He argues that the
convictions must be vacated because the District Court failed to
suppress incriminating statements that he made to law enforcement
which he contends were obtained in violation of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966). We agree.
I.
A.
A federal grand jury returned the operative indictment
in May 2019. It charged Donald with conspiracy to distribute and
to possess with intent to distribute heroin, cocaine, cocaine base,
and fentanyl in violation of 21 U.S.C. § 846 (Count One);
possession with intent to distribute those drugs in violation of
21 U.S.C. § 841(a)(1) (Counts Two through Five); and being a felon
in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)
and 924(e) (Count Six). Before trial, Donald moved to suppress
statements that he made to law enforcement immediately after his
arrest, which occurred on November 30, 2017.
At the evidentiary hearing on the suppression motion,
the government called only one witness -- Gary Morris, a Worcester,
Massachusetts police officer who was a member of a U.S. Drug
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Enforcement Agency Task Force ("Task Force") that had been
investigating Donald for his suspected involvement in a drug-
distribution operation. Officer Morris testified as follows.
On November 30, 2017, Task Force members executed
federal search warrants in Worcester at a basement apartment and
an adjacent, detached apartment, each of which Donald was renting.
Although Donald did not live in either apartment, the Task Force
suspected that he and two other individuals were using the
apartments to run a drug-distribution operation.
On the day of the search, Donald arrived at the property
where the two apartments were located accompanied by the two other
individuals. Task Force members then detained the three of them,
took them inside the basement apartment, and showed them the
federal search warrants. One of the Task Force members thereafter
recited Miranda warnings to the three individuals, including
Donald, and presented them with a pre-printed form to sign titled
"Miranda Warnings and Waiver."
The form included questions regarding whether the three
individuals understood their Miranda rights as well as whether
they wished to waive those rights and speak to investigators.
Donald signed the form and did not place a checkmark on the line
next to the statement that read: "Yes, I wish to talk to you now
and waive my Fifth Amendment Right pursuant to Miranda."
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Members of the Task Force proceeded to execute the search
warrants. Inside the basement apartment, the Task Force members
found two grinders of the type that can be used to grind and dilute
drugs. In the detached apartment, the Task Force members found -
- hidden in a wall -- a kilogram of cocaine, 345 grams of heroin,
80 grams of crack cocaine, 200 fentanyl pills, and a loaded
firearm.
Officer Morris returned to the basement apartment and
spoke with a DEA agent on the scene about the contraband that had
been found in the detached apartment. At that point, Donald
approached members of the Task Force and asked to speak with "the
bald guy," which the Task Force members understood to be a
reference to DEA Agent David DiTullio.
Officer Morris and Agent DiTullio took Donald to the
bathroom of the basement apartment to speak privately. While
there, Officer Morris "reminded" Donald of the Miranda warnings
that Donald had been given. Donald "stated he wished to speak to"
Task Force members, "asked what he can do to help himself," and
stated that "he would provide information."1 Agent DiTullio then
Agent DiTullio later testified at trial that Donald did not
1
at that time state the purpose of his request to speak. However,
because Donald agrees that we must assess the record "in the light
most favorable to the trial court ruling," United States v. Tibolt,
72 F.3d 965, 969 (1st Cir. 1995), we accept Officer Morris's
testimony on this point for the purposes of the analysis below.
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responded that any further conversation would have to occur at the
Worcester Police Department ("WPD"). No further conversation with
Donald occurred at the property.
Task Force members transported Donald to the WPD, where
he affirmed that he still wished to speak to law enforcement.
Donald was escorted to a room that was being both audio and video
recorded. We recount below what the parties agree that recording
establishes, noting any points of dispute along the way.
At the WPD, Officer Morris first reminded Donald of his
Miranda rights by stating:
I'm just gonna remind you that at the house I
Mirandized you, read you your rights, you
understood those right. . . . [Y]ou signed
the form saying you understood
them. . . . [E]verything's still the same and
. . . you know if you wish to talk with us, if
you want to stop at any time that's your right
to do so.
After that, Agent DiTullio began speaking to Donald, stating:
So as we talked before, . . . we're going down
the road of the state charges
tonight . . . this could have went another
way, but you have some information that may
help you with this whole thing. . . . And
based on that, we're willing to talk to
you . . . . So . . . we showed our hand of
good faith by . . . you're not being charged
federally tonight.
Soon thereafter, Agent DiTullio asked Donald, "You know
what we got out of the side of the house, you know exactly what
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was there, right?" Donald then paused, put his hands in the air,
and asked, "None of this can be used against me, can it?"
The parties do not agree about what happened next.
Donald contends that Officer Morris answered the question that
Donald had asked by saying, "No." The government argues that the
record supportably shows that Officer Morris did not provide that
answer or, at least, that it supportably shows that he did not do
so in any "intelligible" manner.
The parties do agree, however, that whether or not
Officer Morris responded "No" to Donald's question, Agent DiTullio
stated right after that question: "We have the stuff so it's, so,
it is what it is . . . ." The parties further agree as to the
following sequence of events.
Donald interrupted Agent DiTullio and stated, "I
understand so that's just, yes let's just . . . yes ok yes sure I
assumed. Just ok so go ahead, so you got what you got and what
can I do to help myself out is what I want to get to." Agent
DiTullio responded to Donald's interruption by asking him to "tell
[them] the story" because this was "the first step in cooperation"
and that he should "tell [them] . . . what [he] kn[e]w was in the
side of the house" because "[they] kn[e]w what was there." Donald
sighed and chuckled, after which Agent DiTullio said, "You gotta
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trust us man. Like we told you, not 92% cooperation not 99, you
gotta be on board and trust us."
Donald responded:
I understand that, you know, but I'm trying to
do what I can to get myself out of a bad
situation. I know that I can guarantee to you
guys, but on your end, you can't guarantee
much of anything outside of the fact that you
know, "you help us out, we'll do what we can."
I don't want to put myself under the . . . gun
giving statements . . . of what was there, so
on and so forth, and it gets held against me
in the court of law as evidence. You know
what I'm saying? I know what . . . you guys
got but you have to prove that it's mine. And
we're not going to do that, okay, I'm just
simply saying I know what . . . was there and
I wanna do what I can to help myself
out . . . .
Officer Morris stated at that point that the Task Force
was "starting with" "keeping the charges at the state level" if
Donald was "willing to cooperate," to which Donald replied, "I
am." Donald then stated: "[H]ypothetically speaking, let's say
there was a kilo of coke, a little over 300 grams of dopy and a
little over 200 pills and whatever, hypothetically . . . and a
gun, hypothetically." Agent DiTullio and Officer Morris then
continued asking Donald questions about what was in the house.
Later, Officer Morris told Donald that for him to be
able to form a "partnership" with members of the Task Force, Donald
would have to "show something . . . of what [he could] do to help
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[them]." Donald proceeded to give a full confession over the
following twenty minutes regarding the nature and extent of his
drug-dealing activities, the identity of his supplier, and how and
when Donald might be able to arrange a meeting with that supplier
so that officers could apprehend that supplier. Donald was charged
the next day with the federal crimes set forth in the operative
indictment.
B.
Prior to trial, Donald moved to suppress "all" the
statements that he made "on November 30th, 2017." The District
Court denied Donald's motion to suppress in a written order on May
23, 2019.
In doing so, the District Court rejected Donald's
contention in his motion that Officer Morris responded "No" when
Donald asked, "None of this can be used against me, can it?" The
District Court found, based on its review of the recording of the
interrogation, that Officer Morris did not so respond and that
"[i]f there was a response . . . it was unintelligible."
Donald moved for reconsideration of this ruling, but the
District Court denied the motion. The case then proceeded to
trial.
During the cross-examination of Agent DiTullio, Donald's
counsel played the recording and asked Agent DiTullio, "Did you
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hear officer -- Task Officer Morris say any communication on the
video?" Agent DiTullio responded, "He said 'no.'" Counsel then
said, "Okay. So to the -- what you call to be a response, can any
of this be used against me, you -- and after that statement was
made, you heard Task Officer Morris say no?" Agent DiTullio
responded, "Yes."
Based on the testimony from Agent DiTullio, Donald
orally moved at the close of the government's case for the District
Court to reconsider its suppression ruling. Donald did so again
at the close of evidence.
The District Court denied both motions. The jury
returned its verdict on October 29, 2021, and found Donald not
guilty of the conspiracy charge (Count One) but guilty of the
remaining charges (Counts Two through Six).
A few weeks later, on November 17, 2021, the District
Court noted during a teleconference between the parties that it
had some concerns about its suppression ruling due to Agent
DiTullio's testimony. Donald subsequently filed his fourth motion
for reconsideration of the denial of his suppression motion. The
District Court heard argument on the matter on June 23, 2022.
Donald addressed the District Court directly at that time and
stated:
I was under the impression that my statements
were not going to be used against me for a
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variety of reasons. . . . [T]he interrogation
began under the premise where Agent DiTullio
was representing to me that I was there to
help myself out . . . .
Again, I attempt to make clear what my
position is that I don’t want to give
statements about what was discovered in the
hide and have those statements used against me
in a court of law as evidence. . . . So,
although I didn’t feel comfortable speaking
about the gun and the drugs, I didn’t
necessarily have a problem in the confession,
because I was under the impression . . . I was
there to help myself out, that my cooperation
would result in me not being charged
federally . . . .
Again, I took that interpretation to mean
that my previously invoked rights were the
same as everything else, and I could speak
freely with them, because it was in the -- in
a form of a cooperation.
So while there’s no disagreement that I
generally understood what my rights were, I do
believe that in certain context on certain
situations an individual can provide
statements without the worry of having those
statements come back to haunt them, such as,
I don’t know, maybe in a proffer session or
something like that.
On July 29, 2022, the District Court issued a written
order that denied Donald's fourth motion for reconsideration. The
District Court concluded, as it had in its earlier rulings on the
suppression motion, that Donald understood his Miranda rights and
"knowingly, intelligently and voluntarily waived them, and agreed
to talk to the agents."
The District Court also assessed whether statements that
Donald made in the recording "constituted his free and voluntary
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act." It concluded that, despite Agent DiTullio's testimony that
he heard Officer Morris respond "No" to Donald's question, it still
could not "determine that [Officer Morris] said 'No,'" mainly
because Donald "did not wait for the agents to respond before he
started to make statements, thereby undermining his contention
that he only talked to the agents because of the assurance that
his statements could not be used against him." The District Court
did not stop there, however. It also concluded that, even if
Officer Morris did say "No," it was "not clear whether [Officer
Morris] was assuring Donald that his statements could not be used
against him," and Donald "never asked for clarification" and never
"again raise[d] the issue of whether anything he [said could] be
used against him." The District Court further reasoned that
Donald's conduct later in the interview, such as speaking in
hypotheticals, "create[d] a strong inference that Donald
understood anything he said could be used as evidence against him
at trial." And, additionally, the District Court pointed to
Donald's "significant criminal history" and "experience[] with the
criminal justice system," as well as the fact that he initiated
the interview, as reasons to think that Donald's responses were
voluntary.
Thus, the District Court found "[b]ased on the totality
of the circumstances . . . that Donald did not misunderstand his
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rights" and "knew that any statements made to [Agent DiTullio] and
[Officer Morris] could be used against him at trial." In addition,
the District Court found in "making this determination" that
"neither [Agent DiTullio] or [Officer Morris] made any assurance
to Donald that his statements could not be used against him such
that his statements were rendered involuntary or otherwise
undermine the effectiveness of the Miranda warnings which had been
given."
The judgments of conviction, per which Donald was
sentenced to 192 months of imprisonment, were entered on September
14, 2022. Donald then filed this timely appeal.
II.
We begin with the portion of Donald's challenge to his
convictions in which he contends that the government failed to
show that he validly waived his Miranda rights before he made the
statements that he seeks to suppress. One of his arguments in
that regard rests on the contention that the District Court clearly
erred in finding that Officer Morris did not respond "No" to
Donald's question "None of this can be used against me, can it?"
Donald reasons that any Miranda waiver that he supposedly made
could not have been valid if that "waiver" came only after Officer
Morris responded "No." Donald contends that any such waiver then
would have been the result of law enforcement's misdescription of
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the waiver's consequences and so could not have been knowingly,
intelligently, and voluntarily made.
As we will explain, we conclude that the District Court
clearly erred in finding that Officer Morris did not respond "No"
and that, reviewing de novo, the "No" response rendered Donald's
purported Miranda waiver invalid. Accordingly, we begin and end
our analysis of Donald's challenge to his convictions on those
grounds,2 as we see no basis for concluding that the District
Court's denial of Donald's suppression motion was harmless error.
A.
There are "two distinct dimensions," Moran v. Burbine,
475 U.S. 412, 421 (1986) (citing Edwards v. Arizona, 451 U.S. 477,
482 (1981)), to the inquiry into whether a Miranda waiver was
"voluntarily, knowingly and intelligently" made. Miranda, 384
U.S. at 444, 475. First, "the relinquishment of the right must
have been voluntary in the sense that it was the product of a free
and deliberate choice rather than intimidation, coercion, or
deception." Moran, 475 U.S. at 421. Second, "the waiver must
2Donald separately argues that we must reverse the District
Court's denial of his motion to suppress because the interrogators
did not "scrupulously honor[]" his express invocation of his right
to remain silent under Miranda, as required by Michigan v. Mosley,
423 U.S. 96, 103 (1975). And that is so, Donald argues, because
the interrogators did not give him a fresh set of Miranda warnings
at the outset of the interview. We do not address that contention
because we conclude that the government cannot satisfy its burden
to show that Donald validly waived his Miranda rights.
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have been made with a full awareness of both the nature of the
right being abandoned and the consequences of the decision to
abandon it." Id. Thus, "[o]nly if the 'totality of the
circumstances surrounding the interrogation' reveal both an
uncoerced choice and the requisite level of comprehension may a
court properly conclude that the Miranda rights have been waived."
Id. (quoting Fare v. Michael C., 442 U.S. 707, 725 (1979)).
The government "bears the burden of showing the validity
of the waiver by a preponderance of the evidence," and we must
"start with a presumption that [Donald] did not waive his rights,"
United States v. Carpentino, 948 F.3d 10, 26 (1st Cir. 2020). To
determine whether the government has met its burden to show that
a valid waiver occurred, we review de novo "determinations on
matters of law, including whether the totality of the circumstances
demonstrate that the defendant's statement was knowing and
voluntary." United States v. Rojas-Tapia, 446 F.3d 1, 3 (1st Cir.
2006). We review "subsidiary findings of fact" for clear error.
Id.B.
The parties agree that Donald expressly invoked his
Miranda rights when he declined to speak to law enforcement after
he was given the "Miranda Warnings and Waiver" form. There also
is no dispute that Donald did not expressly waive those rights at
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any time thereafter. The question, then, is whether he impliedly
did so.
Donald conceded at oral argument that if he impliedly
did so before he asked, "None of this can be used against me, can
it?" then he would likely have no claim under Miranda, given our
ruling in United States v. Bezanson-Perkins, 390 F.3d 34, 40 (1st
Cir. 2004). But the government does not contend in its briefing
to us that the asserted implied waiver occurred before Donald asked
that question or even before Officer Morris responded to it,
insofar as Officer Morris did so respond. Indeed, the government
states in its briefing to us that Donald "waived his Miranda rights
by participating in the interview that he himself had requested"
(emphasis added). And we do not understand the government in so
stating to be suggesting that Donald's mere asking of the question
that preceded the supposed "No" response from Officer Morris
amounted to Donald "participating in the interview" that followed.
Nonetheless, the government did contend for the first
time at oral argument that Donald waived his Miranda rights when
he first indicated (after having invoked Miranda) that he wanted
to speak to law enforcement and that he then waived those rights
again at the WPD at some point before Donald argues that Task Force
Officer Morris answered "No." But we see no merit to this late-
breaking contention.
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As an initial matter, we note that we do not understand
the District Court to have found that Donald's waiver of his
Miranda rights occurred either before Donald asked the question to
Officer Morris that precipitated the claimed "No" response or
before the moment at which Donald contends that Officer Morris
responded "No." For, in denying Donald's first motion to suppress,
the District Court did not determine that the waiver occurred at
the property where the searches were executed based solely on
Donald having reinitiated communication with law enforcement after
having expressly asserted his Miranda rights. Rather, the District
Court found that there had been a waiver, not only based on the
fact that Donald was reminded of Miranda at the outset of the
interview at the WPD, but also based on the fact that the recording
of the interview "reflects a free-flowing exchange initiated by
the Defendant with the agents." Similarly, in the denial of
Donald's motion for reconsideration of the denial of the
suppression motion, the District Court rested its determination
that there had been a valid waiver on the course of the "free-
flowing exchange" as a whole -- that is, on statements that Donald
made throughout the exchange and on the fact that law enforcement
made no assurances to him during the exchange that could "undermine
the effectiveness of the Miranda warnings which he had been given."
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In any event, our precedents preclude us from agreeing
with the government's belated contention about how early the
claimed waiver occurred. The record does show that Donald
initiated contact with Task Force members at the property where
the searches were executed after he had expressly invoked his
Miranda rights. But we have explained that "[a] suspect does not
waive his Miranda rights merely by initiating investigation-
related communication with law enforcement officers after
previously asserting his right to counsel." Carpentino, 948 F.3d
at 25. And we see no basis in the record for concluding that,
after having expressly invoked his Miranda rights, Donald did more
than initiate investigation-related communication with law
enforcement prior to making the statements that followed what
Donald contends was the "No" response from Officer Morris.
In Carpentino, for example, we held that the defendant
had not waived his Miranda rights, after having expressly invoked
them, by waving from his cell to get a guard's attention, asking
to talk to the troopers who had previously interviewed him,
returning to an interview room, and responding once there to a
trooper's statement that the troopers would "have to re-Mirandize
[him] because [they] brought [him] back in" by stating: "How much,
would, uhm, the maximum time be for something like this?" Id. at
18. Instead, we concluded that the waiver had occurred based on
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what happened "[a]fter the defendant initiated the second phase of
the interview." Id. at 26 (emphasis added).
The government is right that in United States v. Mejia,
600 F.3d 12 (1st Cir. 2010), we stated that there are "certain
types of cases in which courts routinely conclude that a defendant
who has professed an understanding of his right to remain silent
has waived that right" and that these include cases where "after
receiving warnings and asserting . . . a right to remain silent,
[the defendant] spontaneously recommences the dialogue with his
interviewers," id. at 17. But Mejia is fully consistent with
Carpentino in determining the validity of asserted waiver by
focusing on what had occurred over the course of the defendant's
"dialogue" with officers, and not simply on what had occurred at
the moment at which the defendant chose to initiate communication
with law enforcement. Id. Indeed, in concluding that there was
a valid Miranda waiver in Mejia, we emphasized that the defendant,
after having been given the Miranda warnings three times and having
signed a form that indicated that he understood those rights,
"began responding to questions willingly and even offered to become
an informant." Id. at 18. We explained that this sequence of
events indicated that "this was a voluntary conversation that Mejia
undertook after having been fully advised of his rights." Id.- 18 -
C.
Although we have concluded that Donald did not waive his
Miranda rights as early as the government belatedly asserted at
oral argument that he had, there is still the question as to
whether Officer Morris responded "No." In asserting that any
claimed waiver that was made was not a valid one, Donald contends
that Officer Morris did make that response and thus that there was
no valid waiver. The District Court found, however, that Officer
Morris did not so respond or, at least, that the answer Officer
Morris gave was "unintelligible."
Our review of this factual finding by the District Court
is for clear error, which means we must "defer to the [D]istrict
[C]ourt's finding[] unless 'the record, read as a whole, gives
rise to a strong, unyielding belief that a mistake has been made.'"
United States v. Negron-Sostre, 790 F.3d 295, 301 (1st Cir. 2015)
(quoting United States v. Hughes, 640 F.3d 428, 434 (1st Cir.
2011)). As the District Court pointed out, the moment in question
features Officer Morris, Donald, and Agent DiTullio all speaking
and interrupting each other in quick succession, sometimes
speaking simultaneously. Indeed, at just the moment that Officer
Morris -- on Donald's account -- says "No," Agent DiTullio is also
speaking. And, whether due to microphone volume levels or the
volumes of their actual voices, both Agent DiTullio's and Donald's
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voices appear to be louder in the recording than Officer Morris's
voice, particularly in instances when multiple people are speaking
simultaneously. So, this was not a situation in which the District
Court was confronted with just a simple exchange between two
parties to decipher.
Nonetheless, our review of the recording still leads us
to conclude that it is clear that Officer Morris did say "No" at
just the moment that Donald argues that he did. Moreover, there
was no finding by the District Court, insofar as Officer Morris
did intelligibly respond "No," that Donald did not hear the
statement. For these reasons, we conclude that Donald has
satisfied his burden under the clear-error standard in contending
that Officer Morris responded "No" in an intelligible manner when
Donald asked, "None of this can be used against me, can it?" Cf.
Scott v. Harris, 550 U.S. 372, 378–81 (2007) (granting summary
judgment for petitioner on the ground that "[r]espondent's version
of events is so utterly discredited by the [videotape recording of
the car chase at issue] that no reasonable jury could have believed
him" and commenting that the "Court of Appeals should not have
relied on such visible fiction; it should have viewed the facts in
the light depicted by the videotape"); see also United States v.
Reinberg, 62 F.4th 266, 269 (6th Cir. 2023) (concluding that the
district court's finding "wasn't clearly erroneous" based on a
- 20 -
review of the video because "[a]t best, the video is partially
ambiguous" and "the district court's interpretation of the video
was the most plausible").
D.
Having shown that no waiver occurred before Officer
Morris said "No" and that it was clear error for the District Court
to find that Morris did not make that response, Donald still must
show one thing more to succeed on his challenge to the denial of
his suppression motion. He must show that the government cannot
meet its burden to show that his purported waiver following that
"No" response was made "voluntarily, knowingly and intelligently."
Moran, 475 U.S. at 421 (quoting Miranda, 384 U.S. at 444, 475).
To show that a Miranda waiver was voluntary, the
government must show that it "was the product of a free and
deliberate choice rather than intimidation, coercion, or
deception." Id. To show that the waiver was knowing, the
government must show that it was made "with a full awareness of
both the nature of the right being abandoned and the consequences
of the decision to abandon it," meaning that the government must
show that the defendant not only "knew he could stand mute and
request a lawyer" but also "that he was aware of the [government's]
intention to use his statements to secure a conviction[.]" Id. at
421–22 (emphasis added).
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Donald contends that the government cannot meet its
burden to show that his waiver was knowing in light of the "No"
response because of the confusion that response could have created
about the effect under Miranda of his speaking to law enforcement
about what was found at the property where the searches were
executed. He contends that Hart v. Att'y Gen. of Fla., 323 F.3d
884 (11th Cir. 2003), supports his contention.
There, the Eleventh Circuit looked to statements made by
investigators even after the defendant had already signed an
explicit Miranda waiver -- such as that "honesty wouldn't hurt
him," as well as that a "con" of his getting counsel was that
counsel might advise him not to respond to some of the officers'
questions -- and concluded that because those statements
contradicted the earlier Miranda warnings, they rendered the
defendant's waiver "not voluntary, knowing, and intelligent." Id.at 894–95. In the same way, Donald contends, he could have
reasonably interpreted Officer Morris's "No" response as an
assurance that none of his statements could be used against him
and thus as a statement that contradicted the earlier Miranda
warnings in a way that rendered any subsequent waiver of Donald's
Miranda rights invalid.
The government responds that the "No" response, even if
made, is not determinative. That is so in part, the government
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contends, because of the nature of the question that Donald asked
before that response was given.
According to the government, the District Court
"implicitly found that [Donald's question] was referring to some
kind of separate promise relating to his cooperation, not his
Miranda rights" (emphasis added). The government thus reasons
that there is no basis for concluding that the "No" response, even
if made, could have caused any confusion on Donald's part about
what Miranda itself provided, given that the District Court found
that response would have at most concerned the nature of a separate
cooperation agreement that Donald may have thought he had. We are
not persuaded.
For starters, we note that even if the District Court
found, and did not clearly err in so finding, that Donald's
question was referring to a separate cooperation agreement, we
must still decide whether, in consequence of the "No" response,
the government has met its burden to establish that Donald
knowingly, intelligently, and voluntarily waived his Miranda
rights. But insofar as the government means to argue that the
District Court made a finding of fact that the question did not
reflect any confusion on Donald's part about what the effect under
Miranda would be of his entering into a conversation with law
enforcement about what was found at the property, such that our
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review of the District Court's assessment of whether he was
confused in that respect is only for clear error, we reject the
contention.
The assessment of what Donald ultimately understood
about Miranda -- as well as what he understood would be the
consequences of waiving its protection -- presents a question of
law, not fact. And that is because the question concerns whether,
based on the totality of the circumstances, the government has
shown that Donald did knowingly waive his Miranda rights by
speaking to law enforcement as he did following the "No" response.
See Rojas-Tapia, 446 F.3d at 3. As a result, we review that
question de novo and not for clear error.
Indeed, we do not understand the District Court itself
to have been operating on a different understanding in ruling as
it did. Even if the District Court found the question that Donald
asked pertained to a cooperation agreement, the District Court
explicitly referred to the remainder of its assessment of whether
the waiver was knowing, intelligent, and voluntary, and its
resulting conclusions, as being "[b]ased" on a "totality of the
circumstances."
That said, the government does also argue that, even on
de novo review, the waiver was valid, given the totality of the
circumstances. And so we must address that contention as well.
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In making this argument, the government rightly points
to aspects of the record that show that this case is somewhat
distinct from Hart, 323 F.3d 884. After all, unlike in that case,
there seems to be no dispute that Donald had a basic understanding
of Miranda. As the government argues, Donald testified at the
reconsideration hearing that "there's no disagreement that [he]
generally understood what [his] rights were" or that he believed
that "in certain context[s] . . . an individual can provide
statements without the worry of having those statements come back
to haunt them, such as . . . in a proffer session." Building off
those features of the record, the government further contends that,
as a result, even if Officer Morris did say "No," that response
would not merit vacating Donald's convictions because a de novo
review of the totality of the circumstances reveals that the
response did not actually cause Donald to become confused about
the existence of his right to remain silent under Miranda. Thus,
the government argues, Donald's contention that there was no valid
Miranda waiver fails and that he, at most, would have had a non-
Miranda-based due-process claim -- which he has not brought --
that his confession was obtained through "coercive official
tactics," see Bezanson-Perkins, 390 F.3d at 40.
But, based on our de novo review of the record, we cannot
conclude that the government has shown that Donald's familiarity
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with the criminal-justice system was sufficiently nuanced that it
would educate him about whether, under Miranda, statements he made
while cooperating in this matter were immunized, even though the
record does show that he generally understood that statements that
he made would not be immunized. Thus, consistent with Hart, we
conclude from a de novo review of the record that the government
has failed to show that, given the totality of the circumstances,
the "No" response did not cause Donald to misunderstand the
protection that he was foregoing under Miranda by speaking as he
did when he did.
To that point, Donald stated -- after he received the
"No" response but before he spoke in hypotheticals -- that he did
not want to "put [him]self under the . . . gun giving statements"
that would "get[] held against [him] in the court of law as
evidence." True, that statement could show, as the government
contends, that Donald was not under the impression that, under
Miranda, he could speak with impunity. But, it equally could show
that Donald was simply confused about how freely he could speak in
this setting under Miranda without giving up its protections, given
the "No" response he had received. Indeed, even the District Court
observed at trial based on this statement by Donald that "[i]t's
almost as if [Donald] thought . . . that he could say whatever he
wanted with impunity because he had invoked his [rights] before."
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Thus, while we appreciate the District Court's evident
care in considering this fact-dependent Miranda issue, we cannot
conclude -- given the equivocal nature of the record on the key
point -- that the government has satisfied its burden to show that
Donald validly waived his Miranda rights. And, as this error was
not harmless, we agree with Donald that none of his convictions
can stand.
III.
For the reasons stated above, the convictions are
vacated, and the case is remanded for further proceedings
consistent with this opinion.
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