United States v. Lafferty

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
9-28-2007
USA v. Lafferty
Precedential or Non-Precedential: Precedential
Docket No. 06-1901
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 06-1901
__________
UNITED STATES OF AMERICA
v.
AMY L. LAFFERTY,
a/k/a Amy L. Lowery
Amy L. Lafferty
Appellant
__________
Appeal from the United States District Court
for the Western District of Pennsylvania
(Crim. No. 04-cr-00007-2)
District Judge: Hon. Kim R. Gibson
__________
Argued on April 17, 2007
Before: McKEE, AMBRO, Circuit Judges, and
ACKERMAN*, District Judge
(Opinion Filed: September 28, 2007)
Kimberly R. Brunson (Argued)
Karen S. Gerlach
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222
Attorneys for Appellant
Robert L. Eberhardt (Argued)
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Attorney for Appellee
OPINION
McKee, Circuit Judge
*
The Honorable Harold Ackerman, Senior Judge, United States
District Court for the District of New Jersey, sitting by designation.
2
Amy Lafferty challenges the district court’s denial of her
motion to suppress statements she and an alleged confederate
made during a custodial interrogation. She argues that
admission of those statements violates her Fifth Amendment
privilege against self incrimination and her Sixth Amendment
right to confront the witnesses against her. For the reasons that
follow, we will reverse the order denying her suppression
motion and remand for further proceedings consistent with this
opinion.1
I. Facts and Procedural History
On January 10, 2003, ATF Special Agent Mark Willgohs
called Lafferty and her boyfriend, David Mitchell, in order to
arrange to interview them about a recent burglary in the area.
Both Lafferty and Mitchell agreed to go to the police station to
1
We have jurisdiction pursuant to 28 U.S.C. § 1291.
3
be interviewed, and they reported as promised, later that
afternoon.
Upon arriving at the police station, police put Lafferty
and Mitchell in different interrogation rooms for questioning.
In Lafferty’s interrogation room, Willgohs produced an ATF
Waiver of Right to Remain Silent and of Right to Advice of
Counsel form (the “form”). The form contained a statement of
rights section (explaining a suspect’s constitutional rights) and
a waiver section (stating that a suspect had been advised of
his/her constitutional rights and had chosen to waive those
rights). Willgohs read the statement of rights section of the
form to Lafferty and she signed it. Lafferty then read the waiver
section of the form on her own and also signed it.
During the next four hours, Willgohs questioned Lafferty
about the burglary of the Mountain Man Sports Shop
(“Mountain Man”), where eight guns had been stolen. Lafferty
4
did not respond to most of the questions, but when she did
respond she denied any involvement in the burglary.
Eventually, Lafferty said that she was “dope sick,” meaning that
she was experiencing symptoms of withdrawal from not having
used heroin for three days, and she asked to go home so she
could shower.
The interrogation continued for approximately fifteen
minutes after Lafferty asked to leave. During that time,
Willgohs tried to get Lafferty to agree to return voluntarily to
the police station to answer more questions about the burglary.
The interrogation session finally ended when Lafferty said she
would return to the police station within two days.2
On January 15, 2003, Willgohs called Mitchell at his
mother’s house and asked Mitchell if he and Lafferty would
2
We will refer to this interrogation as the “January 10
interrogation.”
5
agree to come back to the police station to answer more
questions about the burglary. However, Lafferty was not there,
and Mitchell refused to come to the police station without her.
When Lafferty eventually arrived at Mitchell’s mother’s house,
police officers arrested her on an outstanding, unrelated warrant.
The police also took Mitchell into custody, and drove both of
them to the police station.
There, Lafferty and Mitchell were again placed in
different interrogation rooms, Willgohs read Lafferty the
statement of rights portion of the form once again, and she again
signed it. Lafferty then read the form’s waiver of rights section,
and she also signed it. After Lafferty signed the waiver,
Willgohs resumed his questioning about the burglary, but
Lafferty again denied any involvement. After approximately
twenty minutes of questioning, Lafferty said: “[I]f you’re going
to charge me, charge me. I’m not going to sit here for four to
6
five hours like last time.” At that point, the interrogation
ceased, and police officers put Lafferty in another room.
Meanwhile, officers continued to interrogate Mitchell and
prepared paperwork to charge Lafferty with the burglary.3
Lafferty waited for more than two hours while the police
interrogated Mitchell. Eventually, Mitchell’s interrogation
ended when he asked to speak to an attorney. The police then
prepared documents charging both Lafferty and Mitchell with
the burglary, and called the local Magistrate Judge to arrange for
them to be arraigned.
State troopers then drove Lafferty and Mitchell to the
courthouse for arraignment. As they drove into the courthouse’s
parking lot, Mitchell told the officers that, if they took him and
Lafferty back to the police station and let them talk privately,
3
We will refer to this interrogation as the “first January 15
interrogation.”
7
they would tell the police about the burglary. The troopers
agreed to take them back to the police station so long as
Mitchell agreed to provide information when they returned.
Lafferty remained silent while Mitchell brokered this deal with
the police. Unlike Mitchell, she never agreed to speak with
them.
The troopers then drove Lafferty and Mitchell back to the
police station without having them arraigned. Back at the police
station, Lafferty and Mitchell were put in a small room together
by themselves. After approximately fifteen minutes and three
interruptions by police, Mitchell told Willgohs that they were
ready to talk, but explained that he and Lafferty wanted to speak
with police together.
Before questioning resumed, police again advised
Lafferty and Mitchell of their Miranda rights.4 Mitchell again
4
See Miranda v. Arizona, 384 U.S 436 (1966).
8
was asked to sign the statement of rights portion of the form,
and he verbally retracted his previous request for counsel.
Lafferty was not asked to sign the statement of rights section of
the form again, and she did not sign the waiver portion of the
form or verbally waive her right to remain silent.
Willgohs then began questioning Lafferty and Mitchell
about the Mountain Man burglary in the presence of three ATF
agents and two police officers. During the course of the ensuing
hour-long interrogation, Mitchell answered most of the
questions. In doing so, he managed to incriminate both himself
and Lafferty. Although Lafferty was silent for the most part, she
did respond to questions directly addressed to her. She also
occasionally explained and/or clarified answers that Mitchell
gave, and indicated that she agreed with some of Mitchell’s
answers by nodding her head. However, it is not clear which of
Mitchell’s statements Lafferty assented to in this manner. When
9
the interrogation was over, Lafferty and Mitchell left the police
station without any charges being filed.5
Thereafter, Lafferty was indicted for violating 18 U.S.C.
§§ 922(u), 924(i)(1), and (2). The government alleged that
Lafferty and Mitchell burglarized Mountain Man, a federally
licensed gun dealer, to steal guns that they intended to trade for
drugs. Following her indictment, Lafferty filed several pretrial
motions, including a motion to suppress the statements she had
made in response to Willgohs’s questions at the second January
15 interrogation. She also asked the court to suppress statements
Mitchell made during that interview implicating her in the
burglary.
The district court granted Lafferty’s suppression motion
in part, and denied it in part. The court found that Lafferty did
5
We will refer to this interrogation as the “second January 15
interrogation.”
10
not speak to the police from the time she invoked her right to
remain silent until she responded to Willgohs’s questions during
the second January 15 interrogation. However, the court held
that she had implicitly waived her Fifth Amendment privilege
against self incrimination by participating in the second January
15 interrogation, by answering the questions Willgohs asked of
her, by clarifying and/or adding to some of the answers Mitchell
gave, and by failing to deny statements Mitchell gave that
implicated her in the burglary. United States v. Lafferty, 372 F.
Supp. 2d 446, 459 (W.D. Pa. 2005) (“Lafferty I”).
The district court also held that Lafferty had adopted
Mitchell’s statements as her own pursuant to Federal Rule of
Evidence 801(d)(2)(B). The court reasoned that an innocent
person under the circumstances would have denied the
incriminating statements rather than remain silent. Id.
Nonetheless, the court ruled Mitchell’s statements inadmissible
11
against Lafferty because admitting them would violate her right
of confrontation under Crawford v. Washington, 372 F. Supp. 2d
541 U.S. 36 (2004) at 460-61.
The government thereafter asked the district court to
reconsider its ruling that Mitchell’s statements were
inadmissible against Lafferty under Crawford.6 United States v.
Lafferty, 387 F. Supp. 2d 500, 502 (W.D. Pa. 2005) (“Lafferty
II”). Upon reconsideration, the district court agreed that the
government had proven by a preponderance of the evidence that
Lafferty’s silence in the face of Mitchell’s incriminating
6
The government also argued that Mitchell’s statements were
admissible against Lafferty because his statements were made
during a “joint confession.” Because Mitchell asked that he and
Lafferty be interviewed together, the government contended that
they presented themselves as a single unit and their statements
therefore should be equally admissible against each other. See
Fed. R. Evid. 801(d)(2)(A) (making admissible against a party
“the party’s own statement, in either an individual or a
representative capacity”). The district court rejected this
argument.
12
statements established Lafferty’s “intent to adopt Mitchell’s
statements.” Id. at 510 (quotation omitted). The court
cautioned, however, that the ultimate determination “as to
whether an adoptive admission was made by [Lafferty] must be
left to a jury using the standard of reasonable doubt.” Id.
In ruling that Mitchell’s statements were admissible
against Lafferty, the court reasoned that, “[a]ssuming the jury
concludes that the statements of Mitchell are also adoptive
admissions of [Lafferty], the Sixth Amendment right to
confrontation is not violated.” Id. at 511. Lafferty thereafter
entered a conditional guilty plea, and the court sentenced her to
thirty-seven months imprisonment. This appeal followed.
II. Discussion
A.
Lafferty first argues that the district court erred in
denying her suppression motion because the statements she
13
made in response to Willgohs’s questions were elicited in
violation of her Fifth Amendment privilege against self
incrimination. “We review the district court’s denial of [a]
motion to suppress for clear error as to the underlying facts, but
exercise plenary review as to its legality in light of the court’s
properly found facts.” United States v. Givan, 320 F.3d 452,
458 (3d Cir. 2003) (quotation omitted).
In Miranda, the Supreme Court established custodial
interrogation procedures to safeguard a suspect’s Fifth
Amendment privilege against self incrimination. The Court
instructed that a suspect
must be warned prior to any questioning that he
has the right to remain silent, that anything he
says can be used against him in a court of law,
that he has the right to the presence of an attorney,
and that if he cannot afford an attorney one will
be appointed for him prior to any questioning if
he so desires. Opportunity to exercise these rights
must be afforded to him throughout the
interrogation.
14
384 U.S. at 478. “Once warnings have been given, the
subsequent procedure is clear. If the individual 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.
In Michigan v. Mosley, 423 U.S. 96 (1975), the Court
amplified the mandate that “the interrogation must cease” after
a suspect invokes her/his right to remain silent. There, the Court
explained that this requirement does not mean that a suspect’s
invocation of his/her right to remain silent permanently prevents
the police from ever asking questions of the suspect again. Id.
at 102. Nor, however, does the phrase mean that police may
resume questioning of a suspect who has invoked the right after
a brief time-out. Id. The Court reasoned that these two extreme
interpretations would both lead to absurd results. The latter
interpretation “would clearly frustrate the purpose of Miranda
15
by allowing repeated rounds of questioning to undermine the
will of the person being questioned.” Id.
“Without the right to cut off questioning, the setting of
in-custody interrogation operates on the individual to overcome
free choice in producing a statement after the privilege has been
. . . invoked.” Miranda, 384 U.S. at 474. By exercising his/her
right to terminate questioning, a suspect “can control the time at
which questioning occurs, the subjects discussed, and the
duration of the interrogation.” Mosley, 423 U.S. at 104. Mosley
teaches that “the admissibility of statements obtained after the
person in custody has decided to remain silent depends under
Miranda on whether his right to cut off questioning was
scrupulously honored.” 384 U.S. at 104 (emphasis in original).
In Mosley, a suspect was arrested on robbery charges and
thereafter invoked his right to remain silent. Several hours later,
the police again gave him his Miranda warnings, and Mosley
16
agreed to answer questions about a related homicide. He
eventually confessed to that other crime. At trial, the state court
admitted Mosley’s confession and rejected his argument that the
second interrogation violated Miranda. The Supreme Court
affirmed, explaining:
This is not a case . . . where the police failed to
honor a decision of a person in custody to cut off
questioning, either by refusing to discontinue the
interrogation upon request or by persisting in
repeated efforts to wear down his resistance and
make him change his mind. In contrast to such
practices, the police here immediately ceased the
interrogation, resumed questioning only after the
passage of a significant period of time and the
provision of a fresh set of warnings, and restricted
the second interrogation to a crime that had not
been a subject of the earlier interrogation.
Mosley, 423 U.S. at 105-06.
Thereafter, in Vujosevic v. Rafferty, 844 F.2d 1023 (3d
Cir. 1988), we had to decide if the defendant’s right to cut off
questioning had been scrupulously honored as Mosley
commands. The police had arrested Vujosevic on a Friday night
17
on suspicion of murder, and advised him of his Miranda rights.
When Vujosevic invoked his right to remain silent, the police
stopped the interrogation and took him to a holding cell.
Approximately twenty minutes later, police again warned
Vujosevic of his rights and asked him to sign a form
acknowledging that he understood those rights. Again,
Vujosevic refused to speak to police, and the interrogation
ended. Several hours later, on Saturday morning, police read
Vujosevic his rights for the third time. This time, he signed a
waiver and told the police that he did not remember anything
about the previous night. Around 9:00 p.m. Sunday night,
police warned Vujosevic of his rights for the fourth time, and
told him that his brother had been arrested and charged with the
killing. At about 9:40 p.m., Vujosevic confessed to the killing.
Id. at 1025-26.
18
We held that Vujosevic’s confession was not
constitutionally admissible at his trial because the police failed
to scrupulously observe his right to remain silent. Id. at 1030.
Although we credited the police with stopping the interrogations
each time Vujosevic invoked the privilege, we nevertheless were
troubled by the fact that he did not confess to the killing until he
had been questioned about the crime on four different
occasions.7 Id. at 1029. We distinguished cases that held that
a “defendant’s right to remain silent had been scrupulously
honored despite the resumption of questioning on more than one
7
We also expressed concern in Vujosevic that the police had
essentially “bluffed [the defendant] into agreeing.” 844 F.2d at
1029. Although we found this fact significant for purposes of
distinguishing Mosley, it is clear from our reasoning in
Vujosevic that the police officers’ repeated questioning of the
defendant under the circumstances for the purpose of getting
him to inculpate himself in the crime was sufficient by itself to
establish a constitutional violation. As we shall explain, given
the circumstances here, the fact that the police did not “dupe”
Lafferty into participating in the second January 15 interrogation
does not dictate the outcome of our inquiry.
19
occasion.” Id. We observed: “[i]n none of those cases did the
facts give rise to an inference that the sole purpose for resuming
questioning was to persuade the defendant to abandon his right
to remain silent.” Id. at 1029. Rather, Vujosevic’s interrogation
resembled “cases where the right to remain silent was held not
to have been scrupulously honored” because “the police
resumed questioning for no other reason than to induce the
defendant to change his mind.” Id.
We again addressed a defendant’s claim that police
officers failed to scrupulously honor the privilege against self
incrimination in Nelson v. Fulcomer, 911 F.2d 928 (3d Cir.
1990), superseded by statute, Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, as
recognized in Berryman v. Morton, 100 F.3d 1089 (3d Cir.
1996). Nelson was arrested on charges of rape and murder, and
invoked his right to remain silent before being interrogated. In
20
another interrogation room, police were questioning Terrence
Moore in connection with the same crimes. Moore confessed to
his involvement in the rape and murder, and said that Nelson
had initiated the crimes. After Moore confessed, police officers
put him in a room with Nelson after telling Moore to tell Nelson
that he had confessed. During their brief conversation, Nelson
asked Moore, “How much did you tell them?” Moore replied,
“I told it all.” Id. at 930. Hearing this, Nelson requested that
Moore be taken from the room, and Moore told the police what
Nelson had said to him.
Nelson was thereafter convicted of the rape and murder
in state court. On habeas review, the district court rejected
Nelson’s argument that the Constitution required the
suppression of his exchange with Moore. On appeal, we first
reiterated that “[u]nder Miranda v. Arizona, if a suspect
indicates in any manner at any time prior to or during
21
questioning, that he wishes to remain silent, the interrogation
must cease. If the state violates this rule, the prosecution may
not use a suspect’s responses to the custodial interrogation in its
case-in-chief.” Id. at 932 (quotation and citation omitted). We
then noted that “[c]ustodial interrogation encompasses not only
direct questioning by the police, but also its ‘functional
equivalent.’” Id. (quoting Rhode Island v. Innis, 446 U.S. 291,
300-01 (1980)).
Accordingly, we inquired whether the police “ploy” of
putting Moore in the same room with Nelson was the functional
equivalent of a police interrogation. In resolving that issue, we
explained that “the Court in Innis interpreted Miranda’s
prohibition against interrogation to bar not only express
questioning, but ‘also any words or actions on the part of the
police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to
22
elicit an incriminating response from the suspect.’” Nelson, 911
F.2d at 933 (quoting Innis, 446 U.S. at 301). However, we did
not reach a conclusion on this issue because the district court
had failed to determine if Nelson knew that Moore had
confessed when Moore entered the interrogation room. We
reasoned:
[I]f the police, or Moore at the police’s
instruction, had already confronted Nelson with
the confession, then this case falls squarely under
Innis’s prohibition of ploys reasonably likely to
elicit an incriminating response. On the other
hand, if Nelson had not been informed of the
confession by the words or conduct of Moore or
the police, the suppression of the remark was not
required . . . .
Id. at 934. We therefore remanded to the district court for an
evidentiary hearing on whether Moore’s confession had, in fact,
been communicated to Nelson prior to Nelson’s inculpatory
statement. Id. at 938
However, we did rule on whether the police had
scrupulously honored Nelson’s right to cut off questioning when
they told Moore to go into the same room as Nelson. We
concluded that they had not. Id at 939. We explained that
putting Moore and Nelson in the same room after Nelson had
invoked his right to remain silent bore “none of the indicia of
23
respect identified in Mosley.” We explained that the
government
failed to contend, let alone demonstrate, that it
waited a significant amount of time after Nelson
cut off questioning, gave Nelson a fresh set of
Miranda warnings, that Nelson had invoked his
right in connection with an offense other than the
rape and murder, or that the officers who
engineered the confrontation were different from
those whom Nelson initially refused to talk.
Id. at 940. Rather than scrupulously respecting Nelson’s right
to cut off questioning, we concluded that “all the evidence
suggests that the detectives used the ploy ‘for no other reason
than to induce the defendant to change his mind.’” Id. (quoting
Vujosevic, 844 F.2d at 1029).
Most recently, in United States v. Tyler, 164 F.3d 150 (3d
Cir. 1998), we dealt with a defendant’s allegation that his
privilege against self incrimination had been violated by
continued police questioning after he had invoked his right to
remain silent. Tyler was arrested on suspicion of murdering a
government witness who was going to testify against his
brother. After the police advised Tyler of his Miranda
warnings, he said that he did not want to make a statement. The
interrogation ended at that point, and Tyler was put in a small
room with a police officer guarding him. Tyler and the officer
24
talked for a little less than one hour when Tyler began to cry.
When Tyler started crying, the police officer told him to “tell the
truth” and then advised him of his Miranda rights again.
Thereafter, Tyler made inculpatory statements that were later
admitted against him at trial. Id. at 153-54.
On appeal, we held that the inculpatory statements were
inadmissible because they violated Tyler’s privilege against self
incrimination. We explained that the police instructing Tyler
“to tell the truth” after he “had invoked his Miranda rights is the
antithesis of scrupulously honoring his right to remain silent.”
Id. Moreover, we reasoned that the police could not “negate
Tyler’s invocation of his right to remain silent by a mantra-like
recitation of Miranda warnings” because “[t]he warnings are not
intended to be a mere ritual, the exercise of which guarantees
the admissibility of any statement that is obtained in a custodial
interrogation regardless of the circumstances.” Id. at 155.
Here, the district court concluded that the police did not
fail to scrupulously honor Lafferty’s privilege against self
incrimination by questioning her about the burglary during the
first January 15 interrogation. First, the court noted that five
days had passed between the time Lafferty invoked the right on
25
January 10 and the first January 15 interrogation. Additionally,
the court observed that the officers gave Lafferty a fresh set of
warnings before questioning her during the first January 15
interrogation. The court also reasoned that, although Lafferty
was questioned about the same crime during the first January 15
interrogation as she had been during the January 10
interrogation, there was no evidence that the officers questioned
her to make her change her mind. Lafferty, 372 F. Supp. 2d at
455-56.
However, even if we were to agree that the police
scrupulously honored her right to cut off questioning at the first
January 15 interrogation, we would still be troubled by the fact
that police put Lafferty in an interrogation room with Mitchell
and subjected her to more questions at the second January 15
interrogation after she had invoked her right to remain silent
during the first January 15 interrogation. We realize, of course,
that Mitchell and Lafferty were placed together in the same
room during the second January 15 interrogation at Mitchell’s
request, not as part of a police ploy. Thus, this is not a situation
where the police schemed to create a situation where Lafferty
would rescind invocation of her right to remain silent.
26
Nevertheless, the arrangement itself, as well as the
questioning during the second January 15 interrogation, were
inconsistent with scrupulously honoring Lafferty’s assertion of
her right to remain silent. Mitchell had no authority to waive
Lafferty’s Fifth Amendment privilege for her, and police should
not have ignored the rather obvious fact that the joint
interrogation would likely force Lafferty to either react to
Mitchell’s statements or suggest her assent to those statements
by remaining silent while he incriminated her in a conspiracy.
Under Mosely, Lafferty can not be placed between such a
constitutional rock and Fifth Amendment hard place unless she
places herself there by a valid Miranda waiver; and the
circumstances here do not establish that such a waiver occurred.
In North Carolina v. Butler, 441 U.S. 369, 373 (1979),
the Supreme Court instructed that “in at least some cases waiver
can be clearly inferred from the actions and words of the person
interrogated.” The Court did not, however, define the
circumstances that could result in an implied waiver. Rather,
“we must determine the question of waiver on the particular
facts and circumstances surrounding [each] case, including the
background, experience and conduct of the accused.” United
27
States v. Velasquez, 626 F.2d 314, 320 (3d Cir. 1980) (quotation
marks omitted).
Although the district court recognized that a suspect’s
silence after Miranda warnings can not, by itself, be construed
as a waiver of constitutional rights, the court nonetheless found
an implied waiver of Lafferty’s right to remain silent. Lafferty,
372 F. Supp. 2d at 458-59. The court reasoned that Lafferty
waived her right to remain silent by: (1) participating in the
second January 15 interrogation; (2) answering questions asked
of her during that interview; (3) clarifying or augmenting
Mitchell’s statements; and (4) not denying Mitchell’s statements
implicating her in the burglary. Id. at 459. Based on the district
court’s finding that Lafferty waived her right to remain silent, it
concluded that the Fifth Amendment did not preclude either
Lafferty’s or Mitchell’s statements from being introduced
against Lafferty at trial.
As an initial matter it is clear that, under the
circumstances here, we can not infer that Lafferty waived her
right to remain silent merely because she was willing to go into
the interrogation with Mitchell. Lafferty did not ask to leave the
courthouse and return to the police station; Mitchell did. It was
28
not Lafferty’s decision to go into a room to speak with Mitchell
privately when they returned, and she neither asked to be
interrogated along with him nor agreed to the procedure.
Although she apparently relented to Mitchell’s requests, more
is required to waive a constitutional right under these
circumstances.
The Fifth Amendment precludes Lafferty’s statements
during the second January 15 interrogation from being admitted
at trial if law enforcement officers failed to scrupulously honor
her right to cut off questioning when eliciting those statements.
Mosley identified four factors that help decide whether a
suspect’s right to cease questioning was scrupulously honored:
(1) whether a significant amount of time lapsed between the
suspect’s invocation of the right to remain silent and further
questioning; (2) whether the same officer conducts the
interrogation where the suspect invokes the right and the
subsequent interrogation; (3) whether the suspect is given a
fresh set of Miranda warnings before the subsequent
interrogation; and (4) whether the subsequent interrogation
concerns the same crime as the interrogation previously cut off
by the suspect. Mosley, 423 U.S. at 105-06.
Although it is unclear from the record exactly how much
time elapsed between the first and second January 15
interrogations, we do know that the second interview did not
occur until after Lafferty waited in a room for more than two
hours, rode to the courthouse, returned to the police station, and
talked to Mitchell privately for approximately fifteen minutes.
In Mosley, the Supreme Court concluded that waiting a little
more than two hours was adequate between interrogations. See
id. at 104. Since the officers here waited longer than that, we
can not say that the period between interrogations was
necessarily inadequate for constitutional purposes.8
As in Mosley, the officers here also gave Lafferty fresh
Miranda warnings before questioning her during the second
January 15 interrogation. However, unlike in Mosley, where
different officers questioned the defendant during the first and
second interrogations, Willgohs questioned Lafferty during both
the first and second January 15 interrogations. Also unlike in
Mosley, where the officers asked the defendant about two
different crimes during the first and second interviews, Willgohs
8
In relying on the two-hour time frame of Mosley, we do not
suggest that any set period of time controls the analysis. Rather,
the importance of the time between interrogations may vary
depending on all of the other circumstances.
30
asked Lafferty about the same burglary during the first and
second January 15 interrogations.
However, the Mosley factors are not necessarily
dispositive under the circumstances here. Rather, they are tools
we employ to help determine whether a suspect’s assertion of
Miranda rights was scrupulously honored. See Mosley, 423
U.S. at 106; see also Vujosevic, 844 F.2d at 1029. Given the
circumstances here, it is evident that the second January 15
interrogation was not consistent with honoring Lafferty’s
assertion of her Fifth Amendment right to remain silent.
As noted earlier, the first January 15 interrogation ended
when Lafferty told Willgohs, “if you’re going to charge me,
charge me. I’m not going to sit here for four to five hours like
last time.” Lafferty was then placed in a room to wait while
officers prepared charges and continued questioning Mitchell;
she remained silent while she waited. Officers then took
Lafferty and Mitchell to the Magistrate to be arraigned; Lafferty
remained silent during the ride. Mitchell then offered to tell the
police about the burglary if they took him and Lafferty back to
the police station and let them talk in private; Lafferty still
maintained her silence while Mitchell and the troopers
31
negotiated this arrangement. Law enforcement officers took
Lafferty and Mitchell back to the police station and put them in
a room to talk privately as Mitchell had requested. Police
interrupted their meeting three times to ask if they were ready to
talk.9 While Mitchell twice requested additional time, Lafferty
said nothing when Willgohs checked to see if they were ready
to talk. Eventually, Mitchell told Willgohs that they were
prepared to give a statement; again, Lafferty neither said nor did
anything to suggest she had changed her mind and was ready to
talk to the police.
Notwithstanding the fact that Lafferty steadfastly
maintained her silence, she was put in an interrogation room
with at least five law enforcement officers and a confederate
who had already agreed to give a statement about a crime that
she was suspected of being involved. She was reread her
9
These interruptions were equivalent to asking Lafferty if she
wanted to make a statement despite her prior assertion of her
Fifth Amendment privilege.
32
Miranda warnings10, and asked more questions about the same
crime that she had previously said she did not want to talk about.
Under Miranda, the onus was not on Lafferty to be
persistent in her demand to remain silent. Rather, the
responsibility fell to the law enforcement officers to
scrupulously respect her demand. And it is clear that they failed
to do so by putting Lafferty in an interrogation room with her
alleged confederate after she had invoked her right to remain
silent and after he promised to give a confession.
On this record, we do not conclude that the police
consented to Mitchell’s requests for a joint interrogation “for no
other reason than to induce [Lafferty] to change [her] mind.”
See Vujosevic, 844 F.2d at 1029. Nonetheless, the fact that the
The fact that the police gave Lafferty fresh Miranda warnings
10
before resuming the second January 15 interrogation does not
undermine our conclusion that the police did not scrupulously
honor her right to remain silent. As noted earlier, “[p]olice can
not, as if by alchemy, negate [a suspect’s] invocation of his right
to remain silent by mantra-like recitation of Miranda warnings.
The warnings are not intended to be a mere ritual, the exercise
of which guarantees the admissibility of any statement that is
obtained in a custodial interrogation regardless of the
circumstances.” Tyler, 164 F.3d at 155. In fact, “the more times
police inform a suspect of his rights in the face of his repeated
invocation of those rights . . . [,] the clearer it becomes that the
police must not mean what they say. This is exactly the type of
subtle coercive pressure which the Miranda opinion
condemned.” United States v. Hernandez, 574 F.2d 1362, 1368
(5th Cir. 1978).
33
arrangement was not the result of an intentional scheme to
undermine Lafferty’s Fifth Amendment privilege does not mean
that police scrupulously honored that right. Mosley and its
progeny do not require a defendant who asserts a Fifth
Amendment violation to establish that the officers intentionally
set about to cause the defendant to change his/her mind. Under
Mosley, it is clear that the cloak of the Fifth Amendment is not
woven with such tenuous thread. Rather, Mosley simply
requires that police scrupulously honor a defendant’s Fifth
Amendment privilege. Here, inasmuch as Lafferty did not join
in any of Mitchell’s requests or express her willingness to be
interrogated after asserting the privilege, police were not
justified in proceeding as if she had knowingly and voluntarily
waived the right she had previously asserted. The fact that they
did so is inconsistent with the obligation of scrupulously
honoring Lafferty’s right to cut off questioning.
As we have noted, the fact that Mitchell, rather than law
enforcement officers, suggested the arrangement for the
interrogation does not alter our analysis. If we remove Mitchell
from this scenario, the violation of Lafferty’s Fifth Amendment
right is apparent. Absent Mitchell, the following transpired:
34
Lafferty stopped the first January 15 interrogation when she said
that she did not want to answer any more questions; the
interrogation immediately ceased, and Lafferty was placed in a
room to wait while officers prepared documents to charge her
with the burglary; state troopers then took her to the Magistrate
Judge to be arraigned. Thereafter, the troopers brought her back
to the police station, read her fresh Miranda warnings, and
began questioning her about the burglary.
Mitchell’s conduct can not absolve the police conduct
here absent a valid and meaningful waiver by Lafferty.
Otherwise, police could justify any manner of impermissible
interrogations by relying on a suspect’s confederate (when there
is one) to defeat an assertion of privilege. Although the idea of
a joint interrogation originated with Mitchell, the resulting
interrogation and Lafferty’s statements were obtained under
circumstances that were inconsistent with scrupulously honoring
her right to remain silent.11 Thus, the district court erred in
11
Our focus on the police officers’ role in devising the tactic
used in Nelson was a necessary part of our inquiry there into
whether the ploy constituted an “interrogation.” See Nelson,
911 F.2d at 934-35. Here, there is no question that putting
Lafferty and Mitchell in the same room and then questioning
them about the burglary was an interrogation. Thus, we need
not focus on who authored the scheme leading to the violation.
35
failing to suppress the statements Lafferty made during the
second January 15 interrogation.
B.
Lafferty also argues that the district court erred in failing to
suppress the incriminating statements Mitchell made during the
second January 15 interrogation. The district court reasoned
that Lafferty’s “silence and failure to deny statements by
Mitchell . . . make the statements made by Mitchell adoptive
admissions” under Fed. R. Evid. 801(d)(2)(B) because “an
innocent defendant would have responded in order to deny the
statements made rather than acquiescing in such statements by
remaining silent after hearing and understanding those
statements.” 372 F. Supp. 2d at 459.
That reasoning is both puzzling and troubling. If allowed
to stand, it would virtually eliminate the right to remain silent
because a suspect’s silence in the face of incrimination would be
transformed into substantive evidence of guilt. That is precisely
what the Fifth Amendment was intended to prevent. Under the
district court’s analysis, nothing would remain of the Fifth
Amendment privilege, and the protection it intends would be
transformed into an adoptive admission of guilt. Although it is
36
often difficult for lay jurors to accept that an accused’s silence
can not be considered in determining guilt, it is one of the
cornerstones of the Bill of Rights, and courts must steadfastly
protect the right if it is to have any real significance.
In explaining its reasoning to the contrary, the district
court stated:
The Court’s ruling on this matter specifically is
that there exists sufficient evidence to support a
jury finding that an adoptive admission exists
after considering this preliminary question of
admissibility under [Rule] 104(a). That is to say
the Government has proven by a preponderance
of the evidence that [Lafferty]’s conduct
manifested an intent to adopt Mitchell’s
statements. However, the final determination as
to whether an adoptive admission was made by
[Lafferty] must be left to a jury using the standard
of beyond a reasonable doubt.
37
Lafferty, 387 F. Supp. 2d at 510 (quotation marks and citation
omitted).12 We disagree. Lafferty had, of course, just been
informed that she had the right to remain silent under Miranda.
Under Rule 801(d)(2)(B), a statement is not hearsay if
“the statement is offered against a party and is . . . a statement
of which the party has manifested an adoption or belief in its
truth.” Whether a statement is admissible as an adoptive
admission turns on (1) whether the statement was such that,
under the circumstances, an innocent person would deny the
12
In both Lafferty I and Lafferty II, the district court cited
United States v. Robinson, 275 F.3d 371 (4th Cir. 2001), in
support of its conclusion that Lafferty adopted Mitchell’s
statements under Rule 801(d)(2)(B). However, that case is
distinguishable. In Robinson, co-defendants challenged the
admission of a witness’s testimony concerning their description
of a murder they committed together. The witness stated that
she overheard (but did not see) the defendants jointly tell the
story of how they shot a tow-truck driver. She also stated that
neither defendant contradicted or denied the other’s rendition of
the crime. The trial court admitted the testimony, reasoning
that, insofar as each defendant’s statements were offered against
the other defendant, the statements were not hearsay and
admissible as adoptive admissions under Rule 801(d)(2)(B).
The appellate court upheld the district court’s decision,
concluding that the circumstances of the murderous tale were
such that, had either defendant disagreed with the statement of
the other, “he would have made his disagreement known” and
that the scenario described by the witness provided sufficient
facts for a jury to find that each defendant adopted the other’s
statement as his own. Id. at 382-83. However, the statements
in Robinson were not made during an official interrogation.
Accordingly, the Fifth Amendment did not apply.
38
statements and (2) whether there are sufficient foundational
facts from which the jury may infer that the defendant heard,
understood, and acquiesced in the statement. Under the rule,
“[a]doption or acquiescence may be manifested in any
appropriate manner. When silence is relied upon, the theory is
that the person would, under the circumstances, protest the
statement made in his presence, if untrue.” Fed. R. Evid. 801
advisory committee notes.13
Of course, this is a criminal prosecution, not a civil
proceeding. Under these circumstances, “[i]t is impermissible to
penalize an individual for exercising [her] Fifth Amendment
privilege when [she] is under police custodial interrogation. The
prosecution may not, therefore, use at trial the fact that [she]
stood mute or claimed [her] privilege in the face of accusation.”
13
The district court’s ruling ignored the admonition in the
Federal Rules of Evidence. Specifically, the Advisory
Committee Notes to Rule 801(d)(2)(B) provide:
In criminal cases . . . troublesome questions have been raised by decisions
holding that failure to deny is an admission: the inference is a fairly weak one,
to begin with; silence may be motivated by . . . realization that “anything you
say may be used against you”; unusual opportunity is afforded to manufacture
evidence; and encroachment upon the privilege against self-incrimination
seems inescapably to be involved.
Fed. R. Evid. 801(d)(2)(B) advisory committee notes (emphasis added).
39
Miranda 384 U.S. at 468 n.37. See also United States v. Hale,
422 U.S. 171 (1975); Doyle v. Ohio, 426 U.S. 610 (1976).
Doyle is particularly instructive here insofar as the Court
reiterated the proposition that it is impermissible to penalize a
defendant for invoking her Fifth Amendment privilege during a
custodial interrogation. Doyle involved two defendants who
made no post-arrest statements about their involvement in
alleged drug transactions. Each defendant testified at trial that
he had been framed. On cross-examination, the prosecutor
asked the defendants why they did not tell the police they had
been “set up” when questioned. Id. at 613-14. The Court
concluded that impeaching the defendants on the basis of their
failure to explain being “set up” during their custodial
interrogations was fundamentally unfair because Miranda
warnings inform a person of the right to remain silent and assure
a suspect that his/her silence will not be used against him/her.
426 U.S. at 618-19.
The district court’s ruling that Mitchell’s statements are
admissible against Lafferty as adoptive admissions thus violates
the rule that “[t]he prosecution may not . . . use at trial the fact
that [a defendant] stood mute . . . in the face of accusation.”
40
Miranda, 384 U.S. at 468 n.37. Thus, the court’s reliance on
Rule 801(d)(2)(B) is misplaced. Although the circumstances
here differ from the circumstances in Hale and Doyle, the result
is the same. Neither Miranda, nor its progeny, limit the
exclusion of a defendant’s silence during a custodial
interrogation to specific procedural and/or tactical contexts, and
we decline to do so here. Rather, we hold that a court errs in
permitting the government to use a criminal defendant’s silence
in the face of police interrogation.
Accordingly, Mitchell’s statements can not be construed
as adoptive admissions under Rule 801(d)(2)(B), and the district
court erred in ruling them admissible.14
C.
Because we conclude that the Fifth Amendment
precludes admission against Lafferty of both the statements
she made and the statements Mitchell made during the second
January 15 interrogation, we need not reach the question of
14
This does not, of course, mean that the police had to forego
Mitchell’s statement in order to protect Lafferty. Although
Mitchell probably would not have confessed unless police
allowed him to be interrogated together with Lafferty after
offering them private time to meet, the police could obtain and
use Mitchell’s inculpatory statement under the circumstances
here. However, it could only be used against Mitchell because
only he waived the protection of Miranda.
41
whether those statements are also precluded by the Sixth
Amendment.
42