In United States v. Danielle Faux, Docket No. 15-1282-cr, the Circuit (Jacobs, Hall, Restani), in an opinion by Judge Jacobs, reversed on the Government’s interlocutory appeal the district court’s grant of defendant Faux’s suppression motion, based on the claim that she was “in custody” when law enforcement agents questioned her (without providing Miranda warnings) while executing a search warrant of her home. The ultimate question in such cases — whether, taking into all the circumstances, “a reasonable person would have understood his freedom of action to have been curtailed to a degree associated with formal arrest,” Op. at 12 — is necessarily fact-specific. And while the Court acknowledges that this is a very close case – “[t]he Government stepped right up to the limits of constitutionally permissible conduct and . . . just managed to toe the line” – it ultimately concludes that “the circumstances did not rise to …
United States v. Oehne, No. 11-2286 (2d Cir. October 25, 2012) (Kearse, Katzmann, CJJ, Gleeson, DJ) (per curiam)
This latest per curiam looks at the pretrial ruling on a motion to suppress, and the long sentence imposed in a child pornography production and distribution case. Finding no error, the circuit affirms.
The suppression issue involved custodial statements. Oehne claimed that he unequivocally invoked his right to counsel by telling the agents that he had an attorney in a separate, unrelated case. But the circuit reminded that the right to counsel is “offense specific.” And, since Oehne never requested counsel at all in the case he was being questioned about, he did not invoke his right to counsel. Nor did he invoke his right to remain silent by not signing the Miranda waiver form. The record here showed not that he refused to sign it – although even that might not …
United States v. Williams, No. 11-324-cr (2d Cir. May 17, 2012) (McLaughin, Parker, Wesley, CJJ)
On this government appeal, the circuit reversed a district court order that suppressed a Mirandized statement, after finding that it was the product of an illegal “two-step” interrogation.
Robert Williams was arrested in a Bronx apartment in which law enforcement officers executed a search warrant. The officers found four weapons, but were expecting to uncover many more. One agent, without Mirandizing him, asked Williams who owned the guns they had found, and he said that they were his. An hour later, the agent took Williams to a police station, where he read Williams his rights. Williams waived, and gave a detailed confession.
The district court suppressed Williams’ initial, un-Mirandized statement as outside the scope of the public safety exception, since it went to who owned the guns the agents found, and not where other guns might …
United Stateds v. FNU LNU, No. 10-419-cr (2d Cir. August 9, 2011)
(Jacobs, Calabresi, Lohier, CJJ)
Defendant, traveling under the name Sandra Calzada, arrived at JFK on a flight from the DR. A border patrol agent noticed that Calzada had an open arrest warrant, and flagged her for secondary inspection. An “armed guard” escorted her to the secondary inspection room, from which she was not free to leave, and the agent questioned her for 90 minutes without first reading the Miranda warnings.
The interrogation included questions about her pedigree, passport and the like. Eventually, the agent found some discrepancies: she did not look like the photograph on the original passport application, gave inconsistent biographic information, and could not recall any of her addresses in Puerto Rico, where she said she was born.
The district court refused to suppress the statements, holding that Miranda warnings were not required during a “routine …
United States v. Plugh, No. 10-2815-cr (2d Cir. August 8, 2011) (Jacobs, Livingston, CJJ, Rakoff, DJ)
This about-face arises from a supervening Supreme Court decision.
In its original opinion in this case, a divided panel held that the defendant had successfully invoked his Miranda rights by declining to sign a waiver-of-rights form. See “Car, Men, Miranda,” posted July 31, 2009. The circuit affirmed, on a government appeal, suppression of the defendant’s statements, viewing the case as an application of Davis v. United States, 512 U.S. 452 (1994), which held that a suspect must “unambiguously” invoke his Miranda rights to cut off questioning.
But a 2010 case, Berghuis v. Thompkins, 130 S. Ct. 2250 (2010), held that the Davis “unambiguous” standard should control not just the “cut-off,” but also the initial invocation of the rights. There, Court found that the suspect’s refusal to sign was not an “unambiguous” invocation of his …
United States v. Capers, No 07-1830-cr (2d Cir. December 1, 2010) (Pooler, Hall CJJ, Trager, DJ)
This decision, which was sub judice for nearly two and one-half years, attempts to sort out the confusion left by the Supreme Court’s decision in Missouri v. Seibert, 542 U.S. 600 (2004).
Seibert involved a two-step interrogation strategy that was calculated to circumvent Miranda. The Missouri officers there had been trained to withhold Miranda warnings and question a suspect until he confessed. They would then Mirandize him, secure a waiver, and elicit a second confession. A four-justice plurality held that this two-step procedure violated Miranda because a suspect “hearing warnings only in the aftermath of interrogation and just after making a confession” would “hardly think he had a genuine right to remain silent.” The plurality identified five factors to be weighed in analyzing the effectiveness of post-interrogation Miranda warnings.
Justice Kennedy concurred in the …
United Statse v. Plugh, No. 07-2620-cr (2d Cir. July 31, 2009) (Jacobs, Wesley, Hall, CJJ)
In September of 2005, FBI agents arrested Gordon Plugh on child pornography charges. In the car, an agent read him his Miranda rights and asked him to sign a waiver form. Plugh told the agent that he understood his rights because he was a former correction officer. But he added that he was “not sure” if he should make any statements and wondered whether he needed a lawyer. Plugh refused to sign the form, however, and said that he did not want to sign anything at that time.
During the long ride to headquarters, the agents told Plugh what he was charged with, and he asked them what he should do. The agents told him that they would relay any cooperation to the AUSA. Later, after processing him at their office, the agents told Plugh …
United States v. Rommy, No. 06-0520 (2d Cir. November 6, 2007) (Jacobs, Walker, Raggi, CJJ).
Henk Rommy, a Dutch national, was tried in this district on charges that he managed a vast ecstasy importation scheme from Europe. The scheme’s ties to this district were quite thin – although the goal was to get the drugs to New York, only five things actually occurred here: a call from a cooperating witness in Manhattan to Rommy in the Netherlands; a second call between Rommy and the New York informant about one year later, although there was a dispute as to who initiated it; a call to a local FBI agent from Rommy and the informant, both in Europe, although there was a dispute as to whether Rommy or the informant placed the call; and, finally, two calls from the agent in Manhattan to Rommy in Europe.
At trial, Rommy claimed lack of …
Categories: manufactured venue, Miranda, MLAT, Sixth Amendment, Uncategorized, venue