United States v. Nader Abdallah , 911 F.3d 201 ( 2018 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4230
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NADER ABDALLAH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Newport News. Raymond A. Jackson, District Judge. (4:15-cr-00018-RAJ-LRL-3)
Argued: September 25, 2018 Decided: December 18, 2018
Before GREGORY, Chief Judge, WYNN and HARRIS, Circuit Judges.
Reversed and remanded by published opinion. Judge Wynn wrote the opinion, in which
Chief Judge Gregory and Judge Harris joined.
ARGUED: Kim Michelle Crump, Norfolk, Virginia, for Appellant. Kevin Patrick
Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia,
for Appellee. ON BRIEF: Dana J. Boente, United States Attorney, Alexandria,
Virginia, Eric Hurt, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Newport News, Virginia, for Appellee.
WYNN, Circuit Judge:
A jury convicted Defendant Nader Abdallah (“Defendant”) of several offenses
related to his alleged distribution of controlled substances. On appeal, Defendant raises
numerous grounds for setting aside his convictions.
For reasons that follow, we conclude that the district court reversibly erred in
refusing to suppress inculpatory statements Defendant made during a custodial
interrogation. We further hold that the district court erred in failing to conduct an in
camera review of confidential law enforcement records requested by Defendant, when
Defendant established the confidential records plausibly contained materially favorable
information. Accordingly, we reverse and remand the case to the district court for further
proceedings consistent with this opinion.
I.
A.
In June 2012, law enforcement officers began investigating the sale and
distribution of unlawful synthetic cannabinoids (known as “spice”) in Newport News,
Virginia and the surrounding area. During the investigation, the officers received
complaints that spice was being sold at a local Red Barn gas station and convenience
store that was owned and operated by Defendant and his son. The officers conducted
multiple controlled purchases of spice at the Red Barn, the last of which occurred on
September 16, 2014.
Two days after the last purchase, the officers executed a search warrant at the Red
Barn. Inside, they found and seized cardboard parcels filled with packages of spice; a
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digital scale; $109,308 in cash; and two keys. One of the keys opened a storage unit
containing more spice and the other key opened Defendant’s safe deposit box. After
obtaining another warrant, the officers seized an additional $701,450 in cash from the
safe deposit box.
Thereafter, the United States Customs and Border Protection sent Defendant
notice that it had confiscated his property and that he could file an administrative petition
for its return. Defendant filed two sworn petitions to recover the two sums of cash that
had been confiscated from the Red Barn and the safe deposit box. Each petition stated: “I
maintain my earnings in cash form for religious reasons. I am a Muslim and I strictly
adhere to the tenets of my faith. One of these is the law against usury. I, therefore, do
not maintain a bank account and whenever possible keep my money in cash . . . and other
tangible forms that do not accrue interest.” J.A. 777–79. But Defendant had multiple
bank accounts and had conducted bank transactions on the same day.
After the search, Defendant sold the Red Barn and bought another building at the
former Newport Video location. Thereafter, Defendant’s son emailed Michael
McMahon—the owner of a spice distribution company—and informed McMahon that he
and Defendant wanted to use the Newport Video location to sell spice wholesale. The
officers intercepted these emails and began to track the location’s packages. On April 20,
2015, the officers executed a search warrant at the Newport Video location, during which
they found additional spice, a revolver, crack cocaine, drug paraphernalia, and $10,000.
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B.
Five days before the Newport Video search, a federal grand jury returned its first
indictment against Defendant and, that same day, a federal court issued an arrest warrant
for Defendant. The officers arrested Defendant at the Newport Video location and took
him to the Newport News Police Headquarters for interrogation.
Three officers were present for Defendant’s interrogation: (1) Special Agent Lewis
of the Department of Homeland Security, (2) Inspector Sylvester of the United States
Postal Inspection Service, and (3) Detective Calhoon of the Newport News Police
Department. Special Agent Lewis and Inspector Sylvester later recounted Defendant’s
interrogation during a suppression hearing before the United States District Court for the
Eastern District of Virginia. Defendant exercised his right not to testify, and the district
court ultimately adopted the officers’ recitation of events. See United States v. Abdallah,
196 F.Supp.3d 599 (E.D. Va. 2016).
The officers chose not to record the interrogation. Instead, Inspector Sylvester
took notes and Detective Calhoon observed while Special Agent Lewis interrogated
Defendant. According to the officers, Special Agent Lewis started the interrogation by
reading Defendant his Miranda rights. Defendant purportedly interrupted
“approximately halfway” through to inform the officers that he “wasn’t going to say
anything at all.” J.A. 79; see also Abdallah, 196 F.Supp.3d at 600. Agent Lewis
responded by stating, “Well, just let me finish your Warning first.” J.A. 79. Immediately
after the warning, Agent Lewis asked, “Do you even know why you’re under arrest[?]”
Defendant responded, “No, tell me.” J.A. 79. Agent Lewis then repeated the Miranda
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warning. This time, Defendant did not interrupt, and Defendant indicated that he
understood his rights. Defendant subsequently made multiple inculpatory statements.
The officers also described Defendant’s demeanor during the interrogation. Both
Special Agent Lewis and Inspector Sylvester testified that Defendant was “lucid,” “very
upbeat, jovial, [and] very animated.” J.A. 79, 112, 127. During cross-examination,
Agent Lewis agreed with defense counsel that Defendant was “very cooperative,” not
difficult, “very forthcoming,” and was not “the type of person that had an attitude.” J.A.
96–97. Finally, Agent Lewis acknowledged that Defendant’s demeanor “[s]urprisingly”
did not “change at all during the course of the interview.” J.A. 82.
C.
On April 1, 2016, Defendant filed a motion to suppress all statements made during
his custodial interrogation. Defendant first argued that by stating that he “was not going
to say anything at all,” he unambiguously requested to remain silent. Because the
officers failed to scrupulously honor Defendant’s request, Defendant maintained his
statements were inadmissible. The district court denied Defendant’s suppression motion,
finding his invocation to be “ambiguous, especially given the fact that he voluntarily
waived his Miranda rights minutes later once informed of the charges against him and the
subject of the interrogation.” Abdallah, 196 F.Supp.3d at 604.
Defendant also sought suppression because “it is not clear what if any Miranda
warnings were given.” J.A. 46. Defendant noted the officers did not record the
interrogation and only Inspector Sylvester took notes. Inspector Sylvester’s handwritten
notes first state, “Miranda from DHS form-understood,” and, on the next line, Defendant
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was “Not going to say anything at all.” J.A. 154. Inspector Sylvester’s contemporaneous
notes nowhere suggest that Defendant interrupted his Miranda warnings.
After the interrogation, Agent Lewis drafted a report from his memory. Agent
Lewis emailed that draft to Detective Calhoon and Inspector Sylvester, which prompted
“some modifications.” J.A. 92. Eight days after the interrogation, Agent Lewis issued a
final typewritten report indicating that Defendant interjected halfway through the first set
of Miranda warnings. Claiming inconsistencies between Inspector Sylvester’s
contemporaneous notes and the final report, Defendant requested production of the
officers’ emails pertaining to the drafting of the report. The district court denied
Defendant’s production request, relying on Agent Lewis’s representation that he had not
removed a request for counsel or a request to remain silent.
On October 2, 2016, Defendant moved for the district court to reconsider his
motions requesting production of the drafting exchange and for suppression of his
statement. In support, Defendant asserted that, after reviewing a copy of Agent Lewis’s
grand jury testimony, Defendant found what he considered to be additional
inconsistencies among Agent Lewis’s grand jury testimony, his suppression hearing
testimony, and the final report.
In particular, during the suppression hearing, Agent Lewis testified that he did not
obtain a written Miranda waiver from Defendant because he did not want to “interrupt
the flow” of the interrogation. J.A. 101–02. Agent Lewis also testified that Defendant
was “moving a mile a minute” and he “did not want to stifle the statements that
[Defendant] was making.” J.A. 101–02. By contrast, Agent Lewis testified to the grand
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jury that Defendant had waived his Miranda rights “both orally and in writing” prior to
the interrogation. J.A. 1256. Furthermore, Agent Lewis told the grand jury that
Defendant “started off slow” after receiving the Miranda warning—contrary to Agent
Lewis’s suppression hearing testimony that Defendant was “moving a mile a minute.”
J.A. 1264. Finally, Agent Lewis did not testify before the grand jury that Defendant
interrupted his Miranda warnings to say he “wasn’t going to say anything at all.” On
March 16, 2017, the district court again denied Defendant’s production and suppression
motions.
D.
Beginning October 4, 2016, Defendant was tried by jury before the district court.
During Defendant’s trial, the government introduced much of Defendant’s confession
through Inspector Sylvester’s testimony. For example, Inspector Sylvester informed the
jury that Defendant had provided a detailed explanation of his spice distribution
relationship with McMahon. Defendant also told the officers that he sold spice to “pretty
much everybody” and had sold approximately 10,000 grams of spice. When asked about
the crack cocaine and paraphernalia found during the Newport Video search, Defendant
admitted that he used crack cocaine and had smoked crack cocaine two days prior.
Defendant also stated that he would give prostitutes crack cocaine as a “bonus.”
Regarding the safe deposit box, Defendant told the officers that he had a second safe
deposit box that the officers were “too late” to seize. From that box, Defendant escaped
with $150,000. Finally, Inspector Sylvester testified that Defendant “said his
understanding was that [spice] was illegal under federal law.” J.A. 343. Relying on that
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statement in Defendant’s confession, the government emphasized during closing
arguments that Defendant “told agents [spice] was illegal.” J.A. 1148.
After twelve days of trial, the jury convicted Defendant of (1) one count of
conspiring to distribute Schedule I controlled substances and controlled substance
analogues (i.e., spice), in violation of 21 U.S.C. § 846; (2) one count of possessing a
Schedule I controlled substance (i.e., spice) with intent to distribute, in violation of 18
U.S.C. §§ 841(a)(1) and 841(b)(1)(C); (3) one count of distributing and possessing with
intent to distribute a Schedule II controlled substance (i.e., crack cocaine), in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and 18 U.S.C. § 2; and (4) two counts of
making false statements to the federal government (i.e., one count for each of his sworn
petitions to Customs), in violation of 18 U.S.C. § 1001(a)(3).
Defendant timely appealed.
II.
On appeal, Defendant first argues that the officers violated his Fifth Amendment
rights when the officers continued to question him after he unambiguously invoked his
right to remain silent and therefore that the district court erred by failing to suppress the
statements Defendant made in response to those questions. “We review the factual
findings underlying a motion to suppress for clear error and the district court’s legal
determinations de novo. When a suppression motion has been denied, this Court reviews
the evidence in the light most favorable to the government.” United States v. Hashime,
734 F.3d 278, 282 (4th Cir. 2013) (citation omitted). On review, we agree with
Defendant. Because law enforcement officers failed to scrupulously honor Defendant’s
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unequivocal invocation of the right to remain silent, the district court erred by failing to
grant Defendant’s motions to suppress and reconsider suppression.
A.
The Fifth Amendment of the United States Constitution provides: “[n]o person . . .
shall be compelled in any criminal case to be a witness against himself[.]” U.S. Const.
amend. V. To protect this constitutional right against self-incrimination, the Supreme
Court’s landmark decision in Miranda v. Arizona established certain “procedural
safeguards” that officers must comply with to subject a suspect to custodial interrogation.
384 U.S. 436, 478–79 (1966). First, suspects must be informed of their “right to remain
silent” and their “right to the presence of an attorney.” Id. at 444. If a suspect “indicates
in any manner, at any time prior to or during questioning, that he wishes to remain silent,
the interrogation must cease.” Id. at 473–74 (emphases added). Similarly, if a suspect
“states that he wants an attorney, the interrogation must cease until an attorney is
present.” Id. at 474. Thus, by invoking either the right to remain silent or the right to
counsel, a suspect has the “right to cut off questioning” and officers must cease
questioning the suspect. Id.To invoke the right to remain silent or the right to counsel and thereby cut off
questioning, the suspect’s invocation must be “unambiguous.” Berghuis v. Thompkins,
560 U.S. 370, 381–82 (2010) (request to remain silent); Davis v. United States, 512 U.S.
452, 459 (1994) (request for counsel). An invocation is unambiguous when a
“reasonable police officer under the circumstances would have understood” the suspect
intended to invoke his Fifth Amendment rights. Tice v. Johnson, 647 F.3d 87, 107 (4th
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Cir. 2011); Davis, 512 U.S. at 459. Accordingly, “a suspect need not speak with the
discrimination of an Oxford don” to invoke his Fifth Amendment rights. Davis, 512 U.S.
at 459; see also Emspak v. United States, 349 U.S. 190, 194 (1955) (explaining that “no
ritualistic formula or talismanic phrase is essential in order to invoke” Fifth Amendment
rights). This objective inquiry “‘avoids difficulties of proof and . . . provide[s] guidance
to officers’ on how to proceed in the face of ambiguity.” Thompkins, 560 U.S. at 381–82
(citing Davis, 512 U.S. at 458–59).
In its suppression memorandum, the district court found that “Defendant
interrupted Agent [Lewis’s Miranda warnings] and stated that he ‘wasn’t going to say
anything at all.’” Abdallah, 196 F.Supp.3d at 600 (emphasis added). Numerous courts—
including this Court—have held that materially indistinguishable statements amount to an
unambiguous invocation of Fifth Amendment rights. For example, in Tice v. Johnson,
this Court took the position, in a habeas case, that when a defendant told interrogators, “I
have decided not to say any more,” he unambiguously invoked his right to remain silent.
Tice, 647 F.3d at 107 (“I have decided not to say any more.”); see also Jones v.
Harrington, 829 F.3d 1128, 1140 (9th Cir. 2016) (“I don’t want to talk no more”); United
States v. McCarthy, 382 F. App’x 789, 791–92 (10th Cir. 2010) (“I don’t want nothing to
say to anyone.”); McGraw v. Holland, 257 F.3d 513, 515, 518 (6th Cir. 2001) (“I don’t
wanna talk about it.”); Arnold v. Runnels, 421 F.3d 859, 865 (9th Cir. 2005) (“[T]he
Supreme Court [never] has required that a suspect seeking to invoke his right to silence to
provide any statement more explicit or more technically-worded than ‘I have nothing to
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say.’”); United States v. Reid, 211 F.Supp.2d 366, 372 (D. Mass. 2002) (cited favorably
in Tice, 647 F.3d at 107) (“I have nothing else to say.”).
Notwithstanding contrary and binding authority, the district court found
Defendant’s statement that he “‘wasn’t going to say anything at all’ . . . ambiguous,
especially given the fact that [Defendant] voluntarily waived his Miranda rights minutes
later once informed of the charges against him and the subject of the invocation.”
Abdallah, 196 F.Supp.3d at 600, 604 (emphasis added). The district court erred by
relying upon these post-request facts to cast ambiguity on Defendant’s otherwise
unambiguous request to remain silent.
When determining whether an invocation is ambiguous, courts can consider
whether the “request [itself] . . . or the circumstances leading up to the request would
render [the request] ambiguous[.]” Smith v. Illinois, 469 U.S. 91, 98 (1984) (emphasis
added). But courts cannot cast ambiguity on an otherwise clear invocation by looking to
circumstances which occurred after the request. In Smith v. Illinois, lower courts found a
defendant’s request for counsel to be ambiguous “only by looking to [the defendant’s]
subsequent responses to police questioning[.]” Id. at 97 (emphases in original). The
Supreme Court held that a defendant’s “postrequest responses to further interrogation
may not be used to cast retrospective doubt on the clarity of the initial request itself.” Id.
at 100 (emphasis in original). The Court reasoned “[n]o authority, and no logic, permits
the interrogator to proceed . . . on his own terms and as if the defendant had requested
nothing, in the hope that the defendant might be induced to say something casting
retrospective doubt on his initial statement . . . .” Id. at 99 (citation omitted).
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Subsequently, the Supreme Court also recognized in Berghuis v. Thompkins that “there is
no principled reason to adopt different standards for determining when an accused has
invoked the Miranda right to remain silent and the Miranda right to counsel[.]” 560 U.S.
at 381. Together, Smith and Thompkins establish that courts likewise cannot use post-
request facts and circumstances in determining whether a defendant unambiguously
invoked his right to remain silent, let alone to cast ambiguity on an otherwise clear
request to remain silent. Accord Jones, 829 F.3d at 1140; United States v. Hamidullin,
114 F.Supp.3d 388, 392 (E.D. Va. 2015).
The district court and government highlight cases outside of this Circuit in which
“similar language was not considered an unequivocal invocation of the right to remain
silent.” Abdallah, 196 F.Supp.3d at 603. These cases are inapposite. For example, in
United States v. Sherrod and United States v. Banks, context preceding the defendants’
purported invocations rendered what otherwise might have been unambiguous language
open to alternative interpretations. See United States v. Sherrod, 445 F.3d 980, 982 (7th
Cir. 2007) (officer continually refused to answer defendant’s questions); United States v.
Banks, 78 F.3d 1190, 1196 (7th Cir. 1996) (defendant had just been arrested and placed
in a squad car), vacated on other grounds by Mills v. United States, 519 U.S. 990 (1996),
on remand United States v. Mills, 122 F.3d 346, 349–51 (affirming on this point). In
Banks, the Seventh Circuit made clear:
We believe that the magistrate judge’s characterization of the statement
was, on this record, a permissible one. [The defendant’s] response of “I
don’t got nothing to say,” standing alone, could be construed as an
invocation of his right to remain silent. Yet, when placed in the context of
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his other comments, the alternate interpretation—that it was merely an
angry response to the form in front of him—is also possible.
78 F.3d at 1197 (emphases added).
By contrast, here the government presented no pre-request context suggesting
Defendant’s statement was nothing more than an “angry response” or otherwise casting
ambiguity on Defendant’s clear request to remain silent. Without pre-request context,
Defendant’s unambiguous statement that he “wasn’t going to say anything at all” cannot
be construed as anything but an unambiguous request to remain silent.
To the extent the government relies on cases like Banks to argue that an “angry”
response to Miranda warnings generally does not qualify as an unambiguous invocation,
we disagree. There is no requirement that Miranda invocations be measured, polite, or
free of anger, in the assessment of the officers to whom they are directed. Indeed, a
purported invocation that is not assertive enough may be deemed too equivocal to pass
muster under Davis, see 512 U.S. at 459; if invocations that are perceived as overly
assertive also are disqualified, then suspects will be left to walk a tonal tightrope, with no
margin for error on either side. And even if we did agree with the government’s premise,
we note, it would make no difference on the facts of this case: as the officers’ own
suppression testimony makes clear, the Defendant in fact was not angry but instead “very
upbeat [and] jovial” throughout his interrogation. J.A. 79.
The government also argues that because the Defendant made his statement before
Agent Lewis completed the Miranda warnings, he could not have invoked his right to
remain silent “knowingly and intelligently.” Appellee’s Br. at 20. But there is no
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requirement that an unambiguous invocation of Miranda rights also be “knowing and
intelligent.” That is the standard applied to the waiver of Miranda and other
constitutional rights, not to the invocation of such rights. See Thompkins, 560 U.S. at
382.; Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (because courts “indulge every
reasonable presumption against waiver” of constitutional rights, such waivers must be
knowing and intelligent).
Tellingly, the government cites no case—nor have we found any such case—
holding that defendants must wait until the completion of Miranda warnings prior to
invocation. At best, the government offers us a footnote from McNeil v. Wisconsin,
which it quotes as saying “we have in fact never held that a person can invoke his
Miranda rights anticipatorily . . . .” Appellee’s Br. at 21. But that footnote goes on to
state: “We have in fact never held that a person can invoke his Miranda rights
anticipatorily, in a context other than ‘custodial interrogation[.]’” McNeil v. Wisconsin,
501 U.S. 171, 182 n.3 (1991) (emphasis added).
There is a good reason that the government cannot provide us with a case. The
government’s argument does more than misapply the “knowing and intelligent” standard
to invocations of constitutional rights. It also rests on an unwarranted assumption that no
defendant can ever be aware of his constitutional rights before the government informs
him of those rights. That assumption runs counter to the “deeply rooted” presumption in
our criminal justice system that “every person [knows] the law.” Cheek v. United States,
498 U.S. 192, 199 (1991). When criminal defendants complain that complex statutes are
too “difficult for the average citizen to know and comprehend the extent of the duties and
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obligations imposed by” law, we nevertheless apply this presumption and hold that
“ignorance of the law . . . is no defense to criminal prosecution[.]” Id. at 199–200. But
the government now asks us to adopt the opposite presumption—that defendants cannot
know their constitutional rights prior to receiving a warning—in the context of those
rights that Miranda protects—rights that Miranda has rendered “part of our national
culture.” Dickerson v. United States, 530 U.S. 428, 443 (2000). There is no principled
reason to adopt the conflicting presumptions that defendants must know the criminal laws
which inculpate them but cannot know the constitutional rights which protect them. Nor
is there any reason for the law to effectively penalize a defendant who, even without
receiving the warnings required by Miranda, is aware of his constitutional rights and
chooses to exercise them.
Moreover, the theory underlying the government’s argument fundamentally
misconceives the relationship between Miranda warnings and the right to remain silent.
To that end, the Supreme Court has held that defendants have a constitutional right to
remain silent even when they are not subjected to custodial interrogation and thus have
no right to Miranda warnings. See, e.g., Minnesota v. Murphy, 465 U.S. 420, 427 (1984)
(discussing both criminal and noncriminal investigations); see also Salinas v. Texas
(2013), 570 U.S. 178, 190–91 (Alito, J., concurring) (plurality opinion) (suspects may
unequivocally invoke the privilege against self-incrimination in a non-custodial setting).
In contrast, Miranda warnings are “procedural safeguards” that the Supreme Court
“employed to dispel the compulsion inherent in custodial surroundings.” See Miranda,
384 U.S. at 458. Without these warnings, “no statement obtained from the defendant can
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truly be the product of his free choice.” Id. Miranda warnings are not—nor were they
intended to be—a procedural stumbling block to prevent informed defendants from
exercising their constitutional rights. Instead, they were instituted to inform the
“unaware” of their preexisting rights and to “show the individual that his interrogators are
prepared to recognize his privilege should he choose to exercise it.” Id. at 468. The
officers could not ignore Defendant’s unambiguous invocation merely because they
decided that Defendant’s invocation was not “knowing and intelligent.”
B.
Under black-letter Fifth Amendment law, once a suspect unambiguously indicates
“that he wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at473–74. In Michigan v. Mosley, the Supreme Court held that the “resumption of
questioning is permissible” and subsequent confessions are admissible only if the
suspect’s right to cut off questioning was “scrupulously honored.” 423 U.S. 96, 101–04
(1975) (emphasis added). Questioning resumes whenever officers engage in either (1)
“express questioning,” or (2) “words or actions,” which “the police should know are
reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S.
291, 301 (1980); United States v. Johnson, 734 F.3d 270, 276 (4th Cir. 2013). Under this
formulation, questioning generally does not resume when officers merely make “requests
for routine information necessary for basic identification purposes.” United States v.
Cowan, 674 F.3d 947, 958 (8th Cir. 2012) (citation omitted). But questioning does
resume when officers “should reasonably be aware that the information sought is directly
relevant to the substantive offense charged.” Id. (citing Pennsylvania v. Muniz, 496 U.S.
16582, 602 n. 14 (1990)) (emphasis added); see also United States v. Molina-Gomez, 781
F.3d 13, 24–25 (1st Cir. 2015) (Though “routine questions . . . do not constitute
interrogation,” defendant was interrogated when asked questions “relating to” his
suspected crimes); United States v. Burns, 684 F.2d 1066, 1075–76 (2d Cir. 1982).
To guide the inquiry into whether a suspect’s rights have been scrupulously
honored, this Court has identified five non-exhaustive, non-dispositive factors:
(1) Whether the police had given the suspect Miranda warnings at the first
interrogation and the suspect acknowledged that he understood the
warnings;
(2) Whether the police immediately ceased the interrogation when the
suspect indicated that he did not want to answer questions;
(3) Whether the police resumed questioning the suspect only after the
passage of a significant period of time;
(4) Whether the police provided a fresh set of Miranda warnings before the
second interrogation; and
(5) Whether the second interrogation was restricted to a crime that had not
been a subject of the earlier interrogation.
Weeks v. Angelone, 176 F.3d 249, 267 (4th Cir. 1999). Despite these factors, the
touchstone remains whether a “review of the circumstances” reveals that the suspect’s
rights were “fully respected.” Id. at 268 (citing Mosley, 423 U.S. at 104). Of particular
relevance in this case are the factors inquiring whether: (1) the officers immediately
ceased questioning, (2) the officers waited a “significant period of time” before resuming
questioning, and (3) the interrogation involved the same crime which was the subject of
the earlier investigation. What constitutes a “significant period” is a function of the
degree to which “police persist[ed] in efforts to wear down the [suspect’s resistance] and
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make him change his mind.” Id. (citing Mosley, 423 U.S. at 105–06). Although this
Court “does not require a durational minimum” before resuming questioning, id., we are
mindful that “to permit the continuation of custodial interrogation after a momentary
cessation would clearly frustrate the purposes of Miranda . . . .” Mosley, 423 U.S. at 102.
In its analysis, the district court pointed out that the Weeks factors militated against
finding Defendant’s request to remain silent was scrupulously honored. See Abdallah,
196 F.Supp.3d at 604 (“[T]here was not a significant passage of time between the first
statement and the interrogation and they concerned the same crime.”). We agree.
As was previously discussed, Defendant’s statement that he “wasn’t going to say
anything at all” was a clear invocation of the right to remain silent. See supra Part II.A.
Still, the interrogating officer responded, “Well, just let me finish your warning first,”
read Defendant his Miranda rights, and immediately asked Defendant, “Do you even
know why you’re under arrest[?]” J.A. 79, 105. Other courts have recognized that this
precise question is reasonably likely to elicit an incriminating response. See, e.g.,
Etheridge v. Johnson, 49 F.Supp.2d 963, 982 (S.D. Tex. 1999), dismissed, 209 F.3d 718(5th Cir. 2000); Pirtle v. Lambert, 150 F.Supp.2d 1078 (E.D. Wash. 2001), vacated on
other grounds by Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002). And with good
reason.
One can expect that criminal defendants who are asked “Do you know why you
are under arrest?” will respond with a variety of incriminating, speculative statements
about their substantive offenses. See, e.g., Etheridge, 49 F.Supp.2d at 969 (“Yes, I know
I’m under arrest for killing that fifteen-year-old girl”); Pirtle, 150 F.Supp.2d at 1083 (“Of
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course I do, you might as well shoot me now”). Even though Defendant stated he wasn’t
going to say anything all, Defendant was immediately asked an express question that
reasonably required him to discuss his substantive offense. Cowan, 674 F.3d at 958.
Defendant reasonably responded with several incriminating statements. And those
statements were ultimately used to convict Defendant. On these facts, it is clear that
Defendant’s rights were not scrupulously honored as required by Weeks and Mosley.
Accord Jones, 829 F.3d at 1141; United States v. Nam Quoc Hoang, No. 1:16-CR-193,
2017 WL 1197243, at *6 (E.D. Va. Mar. 31, 2017) (holding that when the defendant was
questioned immediately about the same crime after invoking his right to remain silent, the
defendant’s rights were not scrupulously honored).
The government makes much of the fact that Defendant “eagerly answered
questions, even provided narratives without prompting” after receiving a second Miranda
warning. Appellee’s Br. at 29 (emphasis added). But law enforcement officers do not
scrupulously honor a Defendant’s unambiguous request to remain silent when those
officers unceasingly interrogate Defendant and ignore his clear request to remain silent.
As the Ninth Circuit rightly recognized:
Under Miranda, the onus is not on the suspect to be persistent in his
demand to remain silent. Rather, the responsibility falls to the law
enforcement officers to scrupulously respect his demand. Relying on the
fact that it was the defendant, not the interrogators, who continued the
discussion, ignores the bedrock principle that the interrogators should have
stopped all questioning. A statement taken after the suspect invoked his
right to remain silent cannot be other than the product of compulsion, subtle
or otherwise.
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Jones, 829 F.3d at 1141 (citations and alterations omitted). Defendant in this case
invoked his right to remain silent. Under Mosley, all questioning should have ceased.
Because Defendant’s request was ignored, and questioning continued, Defendant’s right
was not scrupulously honored, and Defendant’s subsequent statements are therefore
inadmissible. 1
C.
Even though the district court believed the Weeks factors supported a finding that
Defendant’s invocation was not scrupulously honored, the court nevertheless suggested
this was “not dispositive because the officer repeated the Miranda warning and obtained
a waiver from the Defendant . . . .” Abdallah, 196 F.Supp.3d at 604. The government
likewise argues that Defendant “understood and explicitly waived his rights.” Appellee’s
Br. at 14. These statements improperly conflate the invocation and waiver inquiries.
In Smith, the Supreme Court held that waiver and invocation are “entirely distinct
inquiries, and the two must not be blurred by merging them together.” Smith, 469 U.S. at
98. There, the defendant unambiguously invoked the right to counsel. Id. Because the
defendant invoked his right to counsel, the Supreme Court held that the government
could not establish a “valid waiver . . . by showing only that [the defendant] responded to
1
The government similarly argues the exclusionary rule should not apply because
suppression “does nothing to advance” the “deterrence of unlawful police activity.”
Appellee’s Br. at 55–56. We disagree. Failing to scrupulously honor the constitutional
rights of defendants is precisely the sort of behavior that the exclusionary rule is meant to
deter. See Mosley, 423 U.S. at 102.
20
further police-initiated custodial interrogation.’” Id. (quoting Edwards v. Arizona, 451
U.S. 477, 484 (1981)).
Similarly, once a suspect unambiguously invokes the right to remain silent, all
questioning must cease. Miranda, 384 U.S. at 444; see also Jones, 829 F.3d at 1132.
Subsequent statements are inadmissible if the officers continue questioning the suspect.
Mosley, 423 U.S. at 104. Officers cannot fail to scrupulously honor a suspect’s request in
the hope that the suspect will subsequently waive that failure. Cf. United States v. Clark,
499 F.2d 802, 807 (4th Cir. 1974) (“[O]nce the privilege has been asserted . . . an
interrogator must not be permitted to seek its retraction, total or otherwise.”) (quoting
United States v. Crisp, 435 F.2d 354, 357 (7th Cir. 1970)).
Defendant in this case unambiguously invoked his right to remain silent. See
supra Part II.A. Nevertheless, the officers continued interrogating Defendant and thus
failed to scrupulously honor Defendant’s invocation. See supra Part II.B. Under Mosley,
Defendant’s statements are therefore inadmissible. The officers cannot circumvent
Mosley’s command by ignoring Defendant’s request, continuing to question Defendant,
and then using Defendant’s subsequent responses to argue he waived his asserted
constitutional right.
D.
The government argues that, even if the district court erred by not suppressing
Defendant’s statements, the error was harmless. Even though Defendant’s confession
was inadmissible, we will not reverse a conviction if the error was harmless. United
States v. Colonna, 511 F.3d 431, 437 (4th Cir. 2007). “In assessing whether a
21
constitutional error was harmless, we determine whether the admission of the statement
at issue was harmless beyond a reasonable doubt, such that it is clear that a rational fact
finder would have found the defendant guilty absent the error.” United States v. Giddins,
858 F.3d 870, 885 (4th Cir. 2017) (citations and alterations omitted). The test “is not
whether laying aside the erroneously admitted evidence there was other evidence
sufficient to convict beyond a reasonable doubt . . ., but more stringently, whether there
is a reasonable possibility that the evidence complained of might have contributed to the
conviction.” Id. In conducting this analysis, we are mindful that a “confession is like no
other evidence. Indeed, the, defendant’s own confession is probably the most probative
and damaging evidence that can be admitted against him[.]” Arizona v. Fulminante, 499
U.S. 279, 296 (1991); see also Jones, 829 F.3d at 1142.
Based upon the facts before us, we cannot say that Defendant’s coerced statements
were harmless beyond a reasonable doubt on any of the five convicted counts. Indeed,
Defendant’s confession played an integral role for each conviction.
First, to support Defendant’s conspiracy to distribute spice charge, the government
introduced Defendant’s detailed statements on his relationship with his spice distributor,
McMahon. Second, to support Defendant’s spice distribution charge, the government
introduced Defendant’s statements that he sold spice to “pretty much everybody,” he
“knew spice was illegal under federal law,” and he had sold approximately 10,000 grams
of spice. Third, to support Defendant’s distribution and possession of crack cocaine
charge, the government introduced Defendant’s statement that he gave prostitutes crack
cocaine as a “bonus.” Finally, to support Defendant’s charges of making false statements
22
to federal Customs, the government introduced Defendant’s statements that he
successfully hid $150,000 from an additional safe deposit box that the officers were “too
late” to seize. By offering Defendant’s statements expressing a desire to conceal his
money, the government could demonstrate Defendant’s consciousness of guilt, destroy
Defendant’s credibility, and rebut Defendant’s claim that he maintained his earnings in
cash for religious reasons. See United States v. Sarwari, 669 F.3d 401, 407 (4th Cir.
2012) (Where a statement is “susceptible to multiple interpretations, and a defendant’s
answer is true under one understanding of the question but false under another, the fact
finder determines whether the defendant knew his statement was false”); Hickory v.
United States, 160 U.S. 408, 416 (“It is undoubted that acts of concealment by an accused
are competent to go to the jury as tending to establish guilt . . .”). Because of the
particularly damaging nature of confessions, and because Defendant’s confession was
integral to every count that Defendant was convicted of, we cannot say beyond all
reasonable doubt that Defendant’s coerced statements were harmless as to any count.
III.
Defendant next argues that Brady v. Maryland, 373 U.S. 83, 87 (1963), and its
progeny required the district court to conduct an in camera review before denying his
request for production of the email exchange among the law enforcement officers
attending Defendant’s interrogation, which culminated in the final interrogation report. 2
2
Having held that the district court erred in denying Defendant’s motion to
suppress his inculpatory statements, whether the district court erred in denying
Defendant’s request for in camera review is not essential to our disposition of
(Continued)
23
“In reviewing the district court’s denial of [Defendant]’s Brady motion, we review [the
district court’s] legal conclusions de novo and its factual findings for clear error.” United
States v. King, 628 F.3d 693, 702 (4th Cir. 2011). On review, we agree with Defendant.
Specifically, because Defendant demonstrated that the drafting exchange plausibly
contained materially favorable evidence, the district court erred in failing to conduct an in
camera review before denying Defendant’s production request.
Under Brady v. Maryland, Defendants are entitled to the disclosure of evidence
that is “both favorable to the accused and material to guilt or punishment.” Pennsylvania
v. Ritchie, 480 U.S. 39, 57 (1987); see also Brady v. Maryland, 373 U.S. at 87. Evidence
is favorable “not only when it tends substantively to negate guilt but also when it tends to
impeach the credibility of a key witness for the prosecution.” Love v. Johnson, 57 F.3d
1305, 1313 (4th Cir. 1995). Evidence is material if there is a “reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would have
been different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995).
In a typical Brady case, a defendant has discovered exculpatory evidence after
trial, which the defendant alleges the government unconstitutionally suppressed. King,
628 F.3d at 702. In these cases, the defendant establishes a Brady violation proving the
materiality and favorability of the withheld evidence. Id. (citing Kyles, 514 U.S. at 433).
But in some cases, like Defendant’s case, the government “may possess potential Brady
Defendant’s appeal. Nonetheless, we exercise our discretion to address the issue so as to
provide guidance to other courts presented with similar issues.
24
material that it deems privileged or that is otherwise confidential.” United States v.
Trevino, 89 F.3d 187, 189 (4th Cir. 1996). Because the defendant does not have access to
the confidential material, the defendant “cannot possibly know, but may only suspect,
that particular information exists which meets [Brady’s] requirements.” Love, 57 F.3d at
1313. In such cases, “a defendant need only make ‘some plausible showing’ that
exculpatory material exists.” King, 628 F.3d at 703. To make this showing, the
defendant must “identify the requested confidential material with some degree of
specificity.” Id. Specificity ensures that the government’s Brady obligations do not
become “unduly burdensome,” Monroe v. Angelone, 323 F.3d 286, 316 (4th Cir. 2003),
and that the defendant does not conscript the court for “a groundless fishing expedition,”
King, 628 F.3d at 703.
Once the defendant identifies specific evidence that could plausibly be favorable
to his defense, the defendant “does not become entitled to direct access to the information
to determine for himself its materiality and favorability.” Love, 57 F.3d at 1313. Rather,
the defendant is “entitled, in order to secure the basic right, to have the information he
has sufficiently identified submitted to the trial court for in camera inspection and a
properly reviewable judicial determination made whether any portions meet the [Brady]
requirements for compulsory disclosure.” Id. Because the defendant is entitled to in
25
camera review, the district court cannot solely “rely on the government’s good faith” as a
basis to avoid review. King, 628 F.3d at 702. 3
This Court has recognized that an officer’s drafting notes must be disclosed under
Brady when the defendant makes the appropriate “demonstration that the material sought
would be exculpatory.” United States v. Crowell, 586 F.2d 1020, 1029 (4th Cir. 1978).
Here, Defendant has identified specific evidence—the drafting exchange—and has made
the required demonstration of plausibility. See Ritchie, 480 U.S. at 58 n.15.
During the suppression hearing, Defendant sought: (1) to establish that he
unequivocally invoked his right to remain silent, and (2) to question when and whether
Miranda warnings were given by impeaching the officers’ credibility. Over the course of
the suppression hearing, Defendant highlighted substantial inconsistencies that called into
question when those Miranda warnings were given. For example, Inspector Sylvester’s
handwritten notes said, “Miranda from DHS form-understood” and then Defendant was
“not going to say anything at all.” J.A. 154. These contemporaneous handwritten notes
do not mention Defendant interrupting his Miranda warnings.
In contrast, Agent Lewis’s final report states that Defendant interrupted halfway
through his Miranda warnings. Furthermore, Agent Lewis testified during the
suppression hearing that there were “some modifications” made over the eight-day
drafting period. J.A. 92. Based on Agent Lewis’s testimony and these inconsistencies—
3
There may be exceptional circumstances where the district court could rely in
part upon the representations of the government. Because the government has not argued
this case presents any such circumstances, we need not determine whether, or in what
circumstances, such an exception exists.
26
inconsistencies that could plausibly lead to evidence and arguments materially favorable
to Defendant—Defendant requested production of the email exchange.
Together, this evidence was sufficient to meet the “meager” plausibility
requirement for in camera review. Love, 57 F.3d at 1313. Rather than conduct an in
camera review, the district court denied Defendant’s request solely based upon Agent
Lewis’s representation that there would not be exculpatory information in the officers’
emails pertaining to the drafting of the report. Relying upon this representation was
error. King, 628 F.3d at 702.
The district court’s error was even clearer at the time of Defendant’s motion to
reconsider production. There, Defendant demonstrated additional substantial
inconsistencies between Agent Lewis’s suppression hearing testimony, grand jury
testimony, and final typewritten report. For example, Agent Lewis testified at the
suppression hearing that he did not use a written waiver because Defendant was “moving
a mile a minute” and he “did not want to stifle” Defendant’s statements. J.A. 101–02.
But Agent Lewis testified before the grand jury that Defendant waived his Miranda rights
“both orally and in writing” prior to the interrogation. J.A. 1256. Furthermore, Agent
Lewis told the grand jury that Defendant “started off slow” after receiving his Miranda
warnings. J.A. 1264. And Agent Lewis did not tell the grand jury that Defendant
interrupted his Miranda warnings at all.
We recognize that the requested emails “may contain nothing helpful to” the
Defendant. King, 628 F.3d at 703. But as was previously discussed, Defendant’s
confession contributed to each count for which the jury convicted Defendant. It was
27
critical for Defendant’s “entire defense” to establish that he unambiguously invoked the
right to remain silent and to impeach the officers’ credibility on the nature and timing of
the Miranda warnings. Id. at 704. Based upon: (1) the inconsistencies that existed
between Inspector Sylvester’s contemporaneous handwritten notes and Agent Lewis’s
final report, (2) the inconsistencies in Agent Lewis’s grand jury testimony and
suppression hearing testimony, and (3) Agent Lewis’s own testimony that there were
“some modifications” over the course of the drafting exchange, it is plausible that an in
camera review of the specific drafting exchange would reveal evidence that was
materially favorable to Defendant’s challenge of when Miranda warnings were given.
The district court thus erred in failing to conduct an in camera review.
IV.
Defendant raises several additional arguments on appeal. For reasons briefly
discussed below, each of these arguments are without merit.
A.
Defendant first contends that the district court erred by limiting non-party
witnesses’ testimony on whether they believed—not whether Defendant believed—that
spice was illegal. We review “a trial court’s rulings on the admissibility of evidence for
abuse of discretion” and “will only overturn an evidentiary ruling that is arbitrary and
irrational.” United States v. Cole, 631 F.3d 146, 153 (4th Cir. 2011). Trial courts have
“wide latitude” to “place limitations upon the cross-examination of witnesses . . . based
on concerns including harassment, prejudice, confusion of the issues, repetition, or
marginal relevance.” United States v. Zayyad, 741 F.3d 452, 459 (4th Cir. 2014)
28
(citations and alterations omitted). Furthermore, we “rarely reverse relevancy decisions
because they are fundamentally a matter of trial management.” Id. (citations omitted).
Under this deferential standard of review, the district court did not abuse its discretion by
excluding non-party witnesses’ testimony on whether they believed spice was illegal.
In Zayyad, the defendant sought to cross-examine non-party witnesses on their
knowledge of the “gray market” to show that the defendant “reasonably believed that he
dispensed real [as opposed to counterfeit] drugs.” Id. at 458. The district court excluded
this testimony, finding the witnesses’ knowledge of the gray market was not relevant to
the defendant’s mens rea. Id. at 459 (citing Fed. R. Evid. 402 (“Irrelevant evidence is not
admissible”)). This Court affirmed. We explained that absent some showing that the
defendant relied on the witnesses’ belief, the district court reasonably determined that this
testimony was merely a distraction, having “no connection to the knowledge element [of
the crime] and consequently no relevance.” Id. at 460–61.
As in Zayyad, the district court did not abuse its discretion in excluding the
testimony of non-party witnesses regarding their knowledge of the illegality of spice.
Defendant did not establish any connection between the witnesses’ knowledge and
Defendant’s own mens rea at trial. Without this connection, the district court could
reasonably determine that the witnesses’ knowledge would confuse the jury as to the
critical issue it was tasked with deciding—whether Defendant knew spice was illegal.
Therefore, the district court did not abuse its discretion in limiting the non-party
witnesses’ testimony.
B.
29
Defendant also challenges the district court’s reliance on Agent Lewis’s
conflicting testimony in denying Defendant’s motion to suppress. According to
Defendant, the district court “should have considered the conflicting testimony of Special
Agent Lewis [and therefore] granted the motion for reconsideration.” Appellant’s Br. at
17. But even when there are “serious questions about the credibility of some of the
government’s witnesses . . . it is for the [factfinder] and not the appellate court to weigh
the evidence and judge the credibility of the witnesses.” United States v. Wilson, 118
F.3d 228, 236 (4th Cir. 1997). Unlike the appellate court, the factfinder has “the
opportunity to observe the witnesses, listen to their testimony, and [is] in the best position
to make the credibility finding.” See United States v. Dagnan, 293 F. App’x 205, 207
(4th Cir. 2008) (unpublished opinion). Despite the inconsistencies which existed among
Agent Lewis’s grand jury testimony, suppression hearing testimony, and in the final
typewritten report, it was ultimately for the district court to observe Agent Lewis and
weigh the credibility of testimony at the hearing. Defendant has presented no evidence to
suggest that the district court failed to meet its obligation, and there is no basis for us to
conclude the district court erred in crediting Agent Lewis’s testimony. See United States
v. Friedemann, 210 F.3d 227, 230 (4th Cir. 2000).
C.
Defendant next argues that the prosecutor improperly relied upon what he views as
the misleading testimony of Inspector Sylvester in its closing argument, and that the
district court erred by failing to cure this improper argument. Defendant did not raise this
argument below. When, as here, a defendant fails to object to an improper closing
30
argument at trial, this Court’s review is limited to plain error. United States v. Hale, 857
F.3d 158, 171 (4th Cir. 2017). Under this circumscribed standard of review, we reject
Defendant’s argument.
Improper closing arguments by a prosecutor “may so infect the trial with
unfairness as to make the resulting conviction a denial of due process.” United States v.
Lighty, 616 F.3d 321 (4th Cir. 2010) (citations and alterations omitted). To determine
whether a prosecutor’s argument violated a defendant’s due process rights, this Court
examines: “(1) whether the remarks were, in fact, improper, and, (2) if so, whether the
improper remarks so prejudiced the defendant’s substantial rights that the defendant was
denied a fair trial.” Id. In the context of using false testimony, prosecutorial misconduct
occurs “not only where the prosecution uses perjured testimony to support its case, but
also where it uses evidence which it knows creates a false impression of a material fact.”
Hamric v. Bailey, 386 F.2d 390, 394 (4th Cir. 1967); see also United States v. Cargill, 17
F. App’x 214, 224 (4th Cir. 2001) (unpublished opinion).
The Analogue Act renders it a crime to knowingly distribute a controlled
substance. 18 U.S.C. § 841(a)(1). In McFadden v. United States, the Supreme Court
provided two methods by which the knowledge element may be satisfied: (1) by
“showing that the defendant knew he possessed a substance listed on the [federal drug]
schedules,” and (2) by showing that the defendant “knew the identity of the substance
possessed.” 135 S. Ct. 2298, 2304 (2015). Under the second method, “ignorance of the
law is typically no defense[.]” Id.31
During Defendant’s custodial interrogation, Defendant stated that he believed
spice was “‘legal in Virginia” but “not for the feds.” J.A. 147. At trial, Inspector
Sylvester did not mention that Defendant thought spice was legal in Virginia. Instead,
Inspector Sylvester testified that Defendant’s “understanding was that [spice] was illegal
under federal law.” J.A. 343. Defendant did not object, but Defendant did cross-examine
Sylvester using the full statement. During closing arguments, the prosecutor
reemphasized that Defendant “told agents [spice] was illegal.” J.A. 1148.
Defendant argues that district court plainly erred because Inspector Sylvester’s
statements were misleading testimony, and it was thus improper for the prosecutor to rely
on them. We disagree. First, Inspector Sylvester’s statement was literally true.
Defendant had in fact stated that spice was illegal under federal law. Though Inspector
Sylvester omitted Defendant’s statement that spice was “legal in Virginia,” this omission
is immaterial to the knowledge element of the Analogue Act, 18 U.S.C. § 841(a)(1). To
the extent that the government sought to prove Defendant’s knowledge under the first
McFadden method, it is simply irrelevant whether Defendant believed spice was legal
under Virginia law. Instead, what is relevant is that Defendant knew spice was listed on
the federal drug schedules. To the extent that the government sought to prove knowledge
under the second McFadden method, all that is pertinent is that Defendant knew the
identity of the controlled substance. Because Inspector Sylvester’s testimony was
32
literally true, and any omission was immaterial, the district court did not plainly err in
failing to take corrective action. 4
V.
In sum, the district court improperly denied Defendant’s motions to suppress and
to reconsider suppression. Additionally, the district court erred by failing to conduct an
in camera review before denying Defendant’s motions to produce and to reconsider
production. For these reasons, we reverse Defendant’s conviction on all five counts. As
such, this case is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED
4
Defendant also argues that the district court erred by failing to grant his Rule 29
motion for acquittal. Because we vacate Defendant’s conviction, we decline to address
this argument.
33