Federal Appeals Blog

US v Rought

No. 20-2667

Third Circuit Court of Appeals

Decided on August 24, 2021

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Issue:

Defendant Makes Incriminating Statements after Invoking Right to Counsel

Whether the District Court erred in denying defendant Rought’s motion to suppress evidence gathered after he invoked the right to counsel under the Fifth Amendment, but then continued discussion with the interrogator and made incriminating statements that resulted in his conviction and sentence of 360 months’ imprisonment.

Holding:

Miranda Rights Waived When Suspect Volunteers Information to Police

The Third Circuit held that the District Court did not err in denying the suppression motion as a defendant waives his post-invocation Miranda rights when he knowingly and voluntarily initiates an exchange with the police, or continues a discussion on a topic despite having requested counsel.

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Facts:

Defendant James Rought was indicted for possession of fentanyl with intent to distribute resulting in death and serious bodily injury after allegedly selling a batch of fentanyl that caused two women to overdose. During an investigation by the FBI, defendant was advised of his Miranda rights verbally and in writing. The interrogator asked if he was willing to talk and Rought responded that he was, “to a point.” The interrogator emphasized he could stop at any time, then began to ask Rought about his drug use and his supplier, his criminal history, his relationship to the victims. When the interrogator asked about one of the victim’s death and “what happened there,” Rought responded that he didn’t “really want to talk about that aspect without my lawyer” and that “that’s a serious situation…they’re trying to roof me.” The interrogator then turned the conversation back to defendant’s drug supplier and discussed the rampant drug problem in the area. The defendant responded that drug dealers were “killing my friends just as much as, right now, you’re trying to say that I killed my friend.” The interrogator responded that he was not trying to say Rought killed the victim, but that he had a role in it, that he “must feel like shit,” to which Rought responded, “Absolutely.”

Rought moved to suppress his post-invocation statements on the ground that they were obtained in violation of Miranda v. Arizona, arguing that his invocation of the right to counsel was not limited to the circumstances of the victim’s death but was instead without limitation and that law enforcement was therefore required to cease interrogation entirely under Edwards v. Arizona, 451 U.S. 477 (1981). Rought also argued that after he invoked right to counsel, he did not initiate the post-invocation discussion about the victim, and that any post-invocation waiver of the right to counsel was not knowing and intelligent because he was not “fully aware” of the potential consequences. The District Court denied his motion and he was convicted by jury and sentenced to 360 months in prison.

Analysis:

Miranda Obligations

The Fifth Amendment provides that “No person…shall be compelled in any criminal case to be a witness against himself.” With Miranda, the Supreme Court “imposed certain obligations on police in custodial interrogations, in order to dissipate the ‘compelling pressures which work to undermine the individuals will to resist and to compel him to speak where he would not otherwise do so freely.’” (United States v. Velasquez, 885 F.2d 1076, 1084 (3d Cir. 1989) (quoting Miranda, 384 U.S. at 467). The Miranda warnings also dictate that police “must cease the interrogation if at any point the suspect indicates that he wishes to remain silent or that he wants an attorney.” (Id.) A waiver of Miranda rights must be voluntary, knowing and intelligent given the totality of the circumstances. A waiver is voluntary if “it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” (Colorado v. Spring, 479 U.S. 564, 573 (1987)). A waiver is knowing and intelligent if “made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” (Id. at 573).

Post-Invocation Statements Admissible When Volunteered

With Edwards the Supreme Court established that “an accused person in custody who has invoked his desire not to speak until he has conferred with counsel ‘is not subject to further interrogation…until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversation with the police.’” (Edwards at 484-485). Post-invocation statements made during the exchange may then be admissible against him if the suspect knowingly and voluntarily waives his right to counsel and the right to remain silent.

With Connecticut v. Barrett, 479 U.S. 523 (1987), the Supreme Court held that not all invocations of the right to counsel are “effective for all purposes,” and that some can be “limited” in scope depending on the suspect’s desires. The defendant in Barrett refused to “put anything in writing until his attorney came,” but was willing to offer an oral confession despite knowing that police planned to record it. The Court held that Barrett’s statements were admissible, holding that nothing “requires authorities to ignore the tenor and sense of a defendant’s response to Miranda warnings.” (Id. at 528). The Court’s reasoning in Barrett is not limited to mode, and applies to invocations limited by topic or subject matter. The Third Circuit holds that after a limited invocation when the police have ceased interrogation about a covered topic, “an initiation occurs when a suspect initiations a [line of discussion that evinces] a willingness and desire for a generalized discussion about the [covered topic].” (Velasquez, 885 F.2d at 1085).

Defendant Offered “Limited” Invocation, Later Initiated the Topic of Interrogation

Defendant argued that his invocation of the right to counsel was not limited to the circumstances of the victim’s death, but was “for all purposes,” and that law enforcement was required to cease interrogation. The Third Circuit disagreed, holding that Rought proceeded to discuss a variety of topics including addiction, his fentanyl source, his criminal history, and only invoked the right to counsel on “that aspect” when the interrogator asked about the circumstances of the victim’s death. It is not plausible, the Court held, that by refusing to discuss “that aspect” of the case without a lawyer, Rought was actually expressing “his desire to deal with the police only through counsel.” (Edwards, 451 U.S. at 484).

Defendant also argued that he did not initiate the post-invocation discussion of the victim’s death. He asserted that there can not be a post-invocation initiation if the investigation never ceases, but the Third Circuit rejected this argument, explaining via Barrett that the interrogation need not cease following a limited invocation, but can continue to matters not covered by the invocation. Rought expressed his desire for counsel, the interrogator respected the right and refocused the interrogation on the defendant’s drug supplier. The Third Circuit held that defendant initiated the conversation about the victim when he stated that drug dealers were, “killing [his] friends just as right now…you’re trying to say that [he] killed” [the victim]. In offering this statement, he opened himself up to further investigation on the topic.

Defendant’s final argument that any post-invocation waiver was not effective because he was not “fully aware of the consequences” of waiving his right to counsel is meritless. The Third Circuit holds that a waiver is knowing and voluntary “if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances, even though the defendant may not know the specific detailed consequences of invoking it.” (United States v. Ruiz, 536 U.S. 622, 629 (2002)). The Third Circuit concluded that Rought’s waiver of his rights was voluntary, knowing and intelligent under the totality of the circumstances. He was read his Miranda rights, he signed a form acknowledging that he understood them, and consented to questioning. By choosing to speak in detail about the circumstances of the victim’s death, Rought waived his right to remain silent and his limited invocation of the right to counsel. The Third Circuit concluded, then, that defendant’s post-invocation statements were thus admissible against him at trial, and the District Court correctly denied his motion to suppress.

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Guest Blogger Bio:

Hi! I’m Mark Gutman and I’m excited to be this week’s guest blogger. I am a former criminal defense attorney and current education law attorney representing students in disciplinary hearings across New York City and the surrounding counties. Student disciplinary cases are on the border of education law and criminal defense, where students are accused of misconduct and need to prove that either (1) the conduct they’re accused of never happened, (2) they have a defense to the misconduct, or (3) the school is using evidence that is inadmissible. For today’s case, we’ll discuss one way in which evidence used against a student in a suspension case may be inadmissible.

For more information about student rights, you can contact me or my partner, Anthoula Vasiliou, directly over at www.GVLLP.com.

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N.J. v. T.L.O.

469 U.S. 325 (1985)

Issue:

Does a student have a Fourth Amendment right to be safe from unreasonable searches and seizures when they are in a school setting?

Holding:

The Supreme Court of the United States held that yes, students do have a right to be safe from unreasonable searches and seizures even when they are within the confines of the school building. However, like other fundamental rights, those rights are slightly diminished for students. A student can be searched if school officials have reasonable suspicion, not just probable cause.

Facts:

A high school teacher caught a 14-year-old girl, T.L.O., in the bathroom with cigarette smoke in the air. She was brought to the principal’s office where she vehemently denied that she had been smoking and stated that she never smoked. The principal grabbed her purse and searched through it. He found not only a pack of cigarettes, but also marijuana, a pipe, plastic bags, a substantial amount of money, and an index card with the names of students who owed T.L.O. money, presumably for the sale of marijuana.

T.L.O. was suspended but also, the search was used against her in juvenile court where she was adjudicated as a delinquent. She appealed her case and argued to the court that the school did not have the right to grab her purse and search through it because it violated her Fourth Amendment right to be protected against unreasonable searches and seizures. The New Jersey Supreme Court agreed with her, reversed the decision of the lower court, and found that T.L.O.’s rights had been violated. The Supreme Court of the United States, however, felt differently.

Analysis:

The Supreme Court of the United States agreed with T.L.O. on one thing – students do maintain their right to be safe from unreasonable searches and seizures, even in a school. However, the Court found that what is considered unreasonable is different for a student in school than it would be for an adult in other settings. The Supreme Court balanced the child’s interest in privacy against “the substantial interest of teachers and administrators in maintaining disciple in in the classroom and on school grounds.” The Court found that in doing so, the proper standard is “reasonable suspicion.”

“This standard will, we trust, neither unduly burden the efforts of school authorities to maintain order in their schools nor authorize unrestrained intrusions upon the privacy of schoolchildren. By focusing attention on the question of reasonableness, the standard will spare teachers and school administrators the necessity of schooling themselves in the niceties of probable cause and permit them to regulate their conduct according to the dictates of reason and common sense. At the same time, the reasonableness standard should ensure that the interests of students will be invaded no more than is necessary to achieve the legitimate end of preserving order in the schools.”

When the Court applied this new standard to the facts in this case, it determined that yes, there was reasonable suspicion to search T.L.O.’s purse. Because T.L.O. was accused of smoking, a search of her purse would reveal whether she was actually in possession of cigarettes or not. The Court found that this was enough of a link to be reasonable and made the search of the purse legal. Once the search of the purse was justified, anything that the principal found during that search was fair game. Therefore, the evidence found could be used against her both in her suspension as well as the juvenile court hearing.

Sentence Reduction Pursuant to Rule 35(b) and the 3553(a) Factors

October 16th, 2018

USA v. KATSMAN

16-2583-cr

United States Court of Appeals for the Second Circuit

Decided on October 10, 2018

ISSUE:

ONE Whether the district court is allowed to deny the government’s motion pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure for a reduction of sentence where the courts determined that the defendant provided substantial assistance in an ongoing matter and reaped the benefits of his cooperation in said matter dealing with SDNY. TWO Whether the factors in 18 U.S.C. §3553(a) should be a used in determining the reduction of a sentence pursuant to a motion under Rule 35(b) where the defendant was offered a plea deal in exchange for substantial assistance in an ongoing matter that the defendant had previously participated in.

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HOLDING:

ONE The Second Circuit held that the district court may deny the government’s motion pursuant to Rule 35(b), such motions are to be decided in two steps: first, the lower court must determine whether the defendant, in fact, provided substantial assistance; Second, if so, it must then determine what, if any, reduction in sentence is warranted. TWO The Second Circuit held that the factors under 18 U.S.C. §3553(a) may be used in determining the reduction of a sentence because it directly relates to step two in determining whether to reduce the defendant’s sentence in light of his cooperation.

FACTS OF THE CASE:

On November 17, 2010, Katsman pled guilty in the EDNY for charges related to a fraudulent check-cashing scheme and was sentenced to 84 months imprisonment. He moved to withdraw his guilty plea or for resentencing before a different judge. His motion to withdraw was denied and his resentencing resulted in a total of 120 months’ imprisonment.

In 2013, the FBI and US Attorney approached Katsman about cooperating in a separate case pending in the SDNY regarding a no-fault insurance fraud scheme and various investment frauds. Subsequently, the government entered into a joint EDNY-SDNY cooperation agreement with Katsman; the government agreed to make a Rule 35 motion to reduce his sentencing in EDNY given that he provided substantial assistance in the ongoing matter. In February 2015, Katsman was required to plead guilty to uncharged criminal conduct in SDNY as part of the deal.

The following year, the US Attorney filed a motion pursuant to Rule 35(b) in the EDNY for resentencing based on his substantial assistance in the prosecutions in the SDNY. While the sentence in the SDNY sentencing was reduced to time served, the district court denied the government’s motion to reduce sentencing in the EDNY. Following Katsman’s initial appeal and remand from the federal court, the district court issued its decision, which is sealed, and a summary of its reasoning.

 

COURT’S ANALYSIS:

In this case, the Second Circuit held that in deciding a Rule 35(b) motion, the district court must first determine whether the defendant in fact provided substantial assistance and second, if he did, the court must determine what, if any, reduction in sentence is warranted. The federal court did not accept Katsman’s argument that the district court conflated these discrete steps into one. They determined that the district court fulfilled the requirements of the first step by inferring that Katsman clearly provided substantial assistance when he pleaded guilty to a “uncharged criminal conduct” in the SDNY. They then determined that the district fulfilled the requirements of the second step by explaining that a 120-month sentence, which was the middle of the guidelines range, remains sufficient but not greater than necessary to comply with the purposes of Section 3553(a) because, among other things, Katsman had already received the benefit of his cooperation in the SDNY when the sentence in the SDNY sentencing was reduced to a sentence of time served.

While the federal court has yet to address the role of factors in 18 U.S.C. §3553(a), if any, in sentencing reduction pursuant to a Rule 35(b) motion, the text also does not preclude the district court from considering factors in addition to the defendant’s “substantial assistance” and to what extent. In fact, Rule 35’s use of the word “may” implies discretion and “discretion can best be exercised by considering the various sentencing factors”. The only limitation, however, is found under Rule 35(b) which requires that the defendant provides “substantial assistance if he is to receive any benefit for his cooperation.”

if the courts were required to resentence a defendant considering only substantial assistance, there would be “too little discretion for the court to exercise” in deciding whether a reduced sentence is “warranted or prudent under the circumstance.” United States v. Manella, 86 F.3d 201, 2014-05 (11^th Cir. 1996). A defendant’s circumstances could change after the sentencing in a way that has an effect on the appropriateness of his sentencing. Take, for instance, a defendant with a terminal illness, which may result in a greater reduction, as opposed to a defendant like Katsman who continued to engage in criminal behavior and lied to the courts about it, which would result in a lesser reduction.