United States v. James Rought ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-2667
_____________
UNITED STATES OF AMERICA
v.
JAMES EUGENE ROUGHT,
Appellant
_____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 3-18-cr-00353)
District Judge: Honorable Malachy E. Mannion
_____________
Argued: June 24, 2021
______________
Before: CHAGARES, PORTER, and ROTH, Circuit Judges
(Filed: August 24, 2021)
_____________
Ronald A. Krauss [ARGUED]
Quin M. Sorenson
Office of the Federal Public Defender
100 Chestnut Street
Suite 306
Harrisburg, PA 17101
Counsel for Appellant
Bruce D. Brandler, Acting United States Attorney
Stephen R. Cerutti II, Assistant United States Attorney
[ARGUED]
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
Federal Building and Courthouse, Suite 220
Harrisburg, PA 17108
Michelle L. Olshefski, Assistant United States Attorney
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Counsel for Appellee
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OPINION OF THE COURT
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CHAGARES, Circuit Judge.
Defendant James Eugene Rought sold fentanyl to Dana
Carichner, who provided some to Cara Giberson. Both
overdosed. Giberson was revived with Narcan; Carichner
2
died. Rought was indicted for possession of fentanyl with
intent to distribute resulting in death and serious bodily injury.
A few days later, he was interrogated by the FBI. After being
advised of his rights verbally and in writing, he answered
questions about his drug use and his supplier, but said he did
not want to talk about Carichner’s death without a lawyer. The
interrogating agents respected his wishes and turned the
questioning to other subjects. In discussing those other
subjects, however, Rought quickly brought the conversation
back around to Carichner — and then made incriminating
statements. Rought moved to suppress the statements he made
to the FBI after he invoked his right to counsel. The District
Court denied the motion, the statements were used against
Rought at trial, and a jury convicted him. Rought now appeals,
arguing that the court erred in denying his suppression motion
and that he should receive a new trial in which the
incriminating statements would not be admissible.
We will affirm. In Connecticut v. Barrett, 479 U.S. 523(1987), the Supreme Court held that invocations of the right to
counsel during custodial interrogations can be “limited.” Id. at
529-30. After a limited invocation, interrogation can continue
on topics not covered by the invocation. If the suspect, without
prompting from law enforcement, then voluntarily reinitiates
discussion of a covered topic and waives her previously
invoked rights, it “is quite consistent with the Fifth
Amendment” for the suspect’s statements about a covered
topic to be admissible at trial. Id. at 529. Because that is what
happened in this case, the District Court correctly denied
Rought’s suppression motion, and he is not entitled to a new
trial.
I.
3
Rought sold fentanyl to Carichner on August 13, 2018.
Giberson was there and witnessed the transaction. On August
15, Giberson asked Carichner to get her some fentanyl from his
source. Rought again sold fentanyl to Carichner on August 16,
and the two of them used drugs together. That evening,
Carichner delivered some of the fentanyl he acquired from
Rought to Giberson at the Blogg, the restaurant where she
worked, leaving it for her in her car. Carichner went home.
After midnight, Giberson overdosed on fentanyl in the
bathroom of the Blogg, but was revived with Narcan.
Carichner died of a fentanyl overdose at home and in bed
sometime after 2:00 a.m.
Law enforcement connected the overdoses to Rought.
He was charged on October 16, 2018, in a one count indictment
with distributing and possessing fentanyl with intent to
distribute resulting in serious bodily injury and death. Three
days later, Rought was interrogated for approximately one hour
by Special Agent Larry Whitehead and Task Force Officer
Shane Yelland of the FBI. The interrogation, which was
videotaped and is the focus of this appeal, took place in an FBI
interview room at the Scranton federal courthouse immediately
prior to Rought’s initial appearance on the federal charge.
Rought was already in custody for state parole violations at the
time of the interrogation.
At the outset, Whitehead confirmed that Rought had
been arrested in the past and informed him of his Miranda
rights. Whitehead also provided Rought with a written consent
form describing his rights and gave Rought an opportunity to
read it. Asked if he was willing to talk, Rought responded that
he was, “to a point.” Whitehead emphasized that Rought could
“stop at any time,” and that “those are the ground rules.”
4
Rought then signed the consent form, which among other
things provided that Rought was willing to answer questions
without a lawyer present.
For the next twenty-four minutes, Rought answered
questions about his drug use, his drug supplier, his criminal
history, and his relationship with Carichner, among other
topics. Rought insisted that he was not a drug dealer. He
believed that “the situation at hand is completely blown out of
proportion” and noted that he and Carichner worked together
and “got high together every day.” He insisted again that he
did not sell drugs to Carichner. Rought explained that
Carichner was his “best friend” and that they had grown up
together. Whitehead told Rought the interview was about
understanding “both sides” of what happened, because law
enforcement only had one side of the story so far. Rought
responded that “really you don’t know any side” because
Giberson (who claimed to have seen Rought sell drugs to
Carichner and whose name was “on the paperwork”) “wasn’t
even there” and Rought “couldn’t even tell you what this chick
looked like.” Whitehead commented that “a tragedy resulted
from your actions . . . and not just yours. . . . this is what’s
going on daily in the community.”
Whitehead told Rought that the federal criminal justice
system can be “unforgiving” for violent crimes, but that it
“rewards cooperation,” and that the FBI was interested in
Rought’s suppliers. Rought explained that his primary supplier
went by “L.B.” and that Rought would buy from him in
Wilkes-Barre. If L.B. was unavailable, Rought would connect
with other “random” suppliers in the area in order to meet the
needs of his addiction — three or four bundles of fentanyl per
day at that point. Rought explained that he would buy a brick
5
of fentanyl from L.B. in order to get bulk pricing, and then
“split it” with the people he got high with, including Carichner.
Because he worked with Carichner “every day . . . most days
we would split it.” Rought also said that the quality of the
drugs was “really good since somebody died.” Whitehead
asked Rought “why fentanyl?” Rought explained that it was
“what we wanted” because, at that time, state parole drug tests
did not test for fentanyl. Rought told Whitehead that L.B. was
always on the lookout for guns, and would trade drugs for guns.
One person who traded guns to L.B. was Stan Derby, a friend
of Rought’s that died of an overdose, “probably” from drugs
he acquired from L.B.
Rought and Whitehead discussed how Wilkes-Barre
was a “cesspool” of drug dealing and how society is “plagued”
by drugs and addiction. Whitehead emphasized his
understanding that addiction is a difficult lifestyle to escape
and brought up drug rehabilitation programs with Rought.
Rought said he was once able to stop using drugs for a week
after coming home from a five-day detox program, but began
using them again because many of the people around him were
using drugs, including Carichner.
About twenty-four minutes into the interrogation, after
Rought mentioned Carichner’s drug use, Whitehead asked, “So
let’s talk about Dana [Carichner]. What happened there?”
Rought replied, “I mean, I don’t really want to talk about that
aspect without my lawyer. . . . That’s a serious situation. I
mean, they’re trying to roof me.” 1 Whitehead immediately
responded that he understood and that “those are the ground
There is no dispute that, as used here, to “roof”
1
someone means to put that person in prison for a long time.
6
rules. . . . That’s your right, and I respect that.”
Whitehead then turned the conversation back to L.B.
and reiterated that he was interested in the people “above”
Rought. He explained that people “caught in a bad spot,” like
Rought, could help themselves and also help law enforcement
“clean up the community.” Whitehead then referenced
Rought’s previous comment that his friend Stan Derby had
overdosed. That prompted Rought to acknowledge the toll that
drug addiction had taken on those around him, including the
lives of several friends and acquaintances who died of
overdoses; Rought said “you’re not losing the effect on me.”
Whitehead responded that he understood that toll and reiterated
that he wanted Rought to share information that would help
law enforcement in “going up the ladder” after L.B. and
“whoever else there is.”
In response, and just a few minutes after invoking his
right to counsel, Rought stated that he did not like addiction
any more than Whitehead and that drug dealers are “killing my
friends just as much as, right now, you’re trying to say that I
killed my friend [Carichner].” Whitehead responded that he
was not saying that Rought killed Carichner but that Rought
“had a role and that’s unfortunate, it is.” He noted that Rought
must “feel like shit” about Carichner’s death, to which Rought
responded, “Absolutely.” Whitehead informed Rought that he
did not believe Rought had “intent or malice” and that
Carichner’s death was an “unfortunate tragedy.” Rought then
expressed anger about how he was being treated like a drug
dealer when he did not sell drugs. He asked “[j]ust because
somebody that I worked with also got high and we got high
together . . . how is that a crime? . . . [H]ow am I being charged
with serious bodily injury [and] death?” Rought expressed
7
incredulity that “the same dope that he snorted a bag of and
died, I shot ten bags of right next to him.” He also explained
that he initially did not believe that Carichner had overdosed
because it did not make sense that Carichner “got high, drove
all the way home, 25-30 minutes, and then got into bed, and
then died.”
Whitehead commented that “we have to work through
this . . . . The three of us, the prosecutor, and your attorney. . .
. This is set in motion.” He acknowledged that Rought was in
a “shitty situation.” Rought said he recognized that fact as soon
as he learned “that I got . . . a fed case on Facebook.” Yelland
then steered the conversation back to L.B. by asking if L.B.
used Facebook. The remainder of the interrogation focused on
L.B. At one point, Whitehead offered to question Rought
about L.B. with a lawyer present. Rought did not express
interest in this suggestion, and continued answering questions
about L.B. until he was brought before the District Court for
his initial appearance.
In May 2019, Rought moved to suppress his post-
invocation statements on the ground that they were obtained in
violation of Miranda v. Arizona, 384 U.S. 436 (1966). The
Government filed a superseding indictment against Rought the
following month; it added one count of conspiracy to possess
fentanyl with intent to distribute and one count of aiding and
abetting the distribution of fentanyl. Rought pleaded not guilty
to all three counts. The District Court denied Rought’s
suppression motion, concluding that Rought’s invocation of
the right to counsel was limited to the circumstances of
Carichner’s death, that law enforcement “should [not] have
reasonably anticipated” that discussing L.B. and Derby’s
overdose would prompt Rought to “renew discussions about”
8
Carichner, and that Rought knowingly and voluntarily waived
his right not to speak about Carichner without a lawyer present.
Appendix (“App.”) 97-99.
At trial, the Government made frequent use of Rought’s
post-invocation statements. The Government, for instance,
told the jury in its opening statement that they would “actually
hear the defendant admitting to . . . drug dealing.” App. 190.
Among other uses, the video of the interrogation was played
during Agent Whitehead’s testimony, and the Government’s
closing arguments referred back to Rought’s statements. The
jury convicted Rought on all counts, and he was sentenced to
360 months in prison. Rought timely appealed.
II.
The District Court had jurisdiction under 18 U.S.C. §
3231, and we have appellate jurisdiction under 28 U.S.C. §
1291. We review the denial of a motion to suppress for clear
error as to the facts that the District Court found and exercise
plenary review over the application of law to those facts.
United States v. Davis, 726 F.3d 434, 439 (3d Cir. 2013).
III.
Rought argues that the District Court erred in denying
his motion to suppress for three reasons. First, Rought argues
that his invocation of the right to counsel was not limited to the
circumstances of Carichner’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). Second, Rought argues that after he invoked
his right to counsel, he did not initiate the post-invocation
9
discussion about Carichner. Third, Rought argues 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, including the risk — which came to
pass — that he was opening himself up to conspiracy charges.
Rought Br. 26. We will below elucidate the relevant legal
principles, and then consider Rought’s arguments in light of
those principles.
A.
The Fifth Amendment provides that “No person . . .
shall be compelled in any criminal case to be a witness against
himself.” U.S. Const. amend. V. To safeguard this right, the
Supreme Court in Miranda “imposed certain obligations on
police in custodial interrogations, in order to dissipate the
‘compelling pressures which work to undermine the
individual’s 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 familiar Miranda warnings
require police to “inform the suspect of his right to remain
silent and his right to have counsel present during
interrogation, as well as their intent to use his statements to
secure a conviction.” Id. Police must also “cease the
interrogation if at any point the suspect indicates that he wishes
to remain silent or that he wants an attorney.” Id.In Edwards, the Supreme Court established a bright-line
rule for suspects who have invoked the right to counsel: “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
10
to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police.’”
Id. (quoting Edwards, 451 U.S. at 484-85). If a suspect who
has invoked the right to counsel but not yet met with counsel
initiates discussion with the authorities, further interrogation 2
can take place. Id. at 1084, 1087. Post-invocation statements
made during that interrogation may then be admissible against
the suspect at trial if the suspect knowingly and voluntarily
waives the right to counsel and the right to remain silent. Id.;
see also Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983)
(plurality opinion); Edwards, 451 U.S. at 486 n.9.
In Bradshaw, the Court split 4-4 on what it means for a
suspect to “initiate” discussion following an invocation of the
right to counsel. The plurality held that the suspect in the case
before it initiated discussion where his question — “Well, what
is going to happen to me now?” — “evinced a willingness and
a desire for a generalized discussion about the investigation.”
462 U.S. at 1045-46. The dissenters would have held that
initiation requires “communication or dialogue about the
subject matter of the criminal investigation.” Id. at 1053(Marshall, J., dissenting) (emphasis omitted). In Velasquez,
this Court adopted the Bradshaw plurality’s test for initiation,
holding “that an initiation occurs when a suspect initiates a
conversation evincing a willingness and a desire for a
2
Under Miranda, “the term ‘interrogation’ . . . refers not
only to express questioning, but also to 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 elicit an incriminating response from the
suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980)
(footnote omitted).
11
generalized discussion about the investigation.” 885 F.2d at
1085 (cleaned up). Initiation and waiver are distinct analytical
steps; initiation by itself is not adequate to find a waiver. Id. at
1087.
A waiver of the Miranda rights must be voluntary,
knowing, and intelligent considering the totality of the
circumstances. Id. at 1086 (citing Miranda, 384 U.S. at 444).
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)
(quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). In the
voluntariness inquiry, “[a] suspect’s background and
experience, including prior dealings with the criminal justice
system, should be taken into account.” United States v. Jacobs,
431 F.3d 99, 108 (3d Cir. 2005). 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.” Spring, 479 U.S. at 573 (quoting Burbine, 475
U.S. at 421); see also Berghuis v. Thompkins, 560 U.S. 370,
382-83 (2010). If the Government “shows that a Miranda
warning was given and that it was understood by the accused,
an accused’s uncoerced statement establishes an implied
waiver of the right to remain silent.” Berghuis, 560 U.S. at
384.
In sum, then, a suspect who has invoked the right to
counsel and has not yet met with counsel is generally not
subject to further interrogation unless the suspect initiates
discussion with law enforcement. Once there has been an
initiation, further interrogation can take place, and the
suspect’s statements may be admissible against him at trial if
he validly waives the right to remain silent and the right to
12
counsel. See Velasquez, 885 F.2d at 1084-89.
Or at least, these are the principles that generally apply
after a suspect invokes the right to counsel “for all purposes.”
Barrett, 479 U.S. at 530. A key premise of the decisions
discussed above is that a suspect’s invocation of the right to
counsel reflects a “desire to deal with the police only through
counsel.” Edwards, 451 U.S. at 484. The Supreme Court
recognized in Barrett, however, that not all invocations reflect
such a desire. 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 on tape. 479 U.S. at 525-26. The Court held that
Barrett’s oral statements were admissible, reasoning that
nothing “requires authorities to ignore the tenor or sense of a
defendant’s response to [Miranda] warnings.” Id. at 528. If
police had obtained a written statement without complying
with Edwards, it would “clearly” have been inadmissible, but
it was “quite consistent with the Fifth Amendment” for law
enforcement to make use of “the opportunity provided by
Barrett to obtain an oral confession.” Id. at 529.
The invocation in Barrett was limited by the mode of
the suspect’s communications: written statements were within
the invocation while oral statements were not. But the Court’s
reasoning in Barrett is not limited to mode. It applies with
equal force to invocations limited by topic or subject matter,
and we now hold that suspects can limit their invocations of
the right to counsel in this manner. 3 Numerous federal and
3
We caution, however, that the Barrett decision creates
only a narrow exception to the Edwards rule, and that it is
appropriate to give ambiguous invocations of the right to
13
state courts have likewise relied on the Barrett decision to find
that an invocation was limited by topic or subject matter. See,
e.g., United States v. Oba, 978 F.2d 1123, 1130 (9th Cir. 1992)
(concluding that invocation was limited to advice of counsel
concerning effect of x-ray consent form on potential civil
action); United States v. Ivy, 929 F.2d 147, 152-53 (5th Cir.
1991) (determining that invocation was limited to questions
about where defendant obtained materials to make a bomb);
United States v. Conner, 946 F.2d 896, 1991 WL 213756, at
*1-2 (6th Cir. 1991) (affirming finding that invocation was
limited to “narcotics activity” and did not cover other
investigative topics); United States v. Mikelic, No. 3:10-cr-
132, 2011 WL 4368565, at *11 (D. Conn. Sept. 19, 2011)
(“Mikelic only stated that he wanted to speak with his lawyer
with respect to certain questions . . . . Thus, it did not violate
the Fifth Amendment for [law enforcement] to continue
questioning Mikelic following Mikelic’s limited invocation of
his right to counsel.”); People v. Adams, 627 N.W.2d 623, 628
(Mich. Ct. App. 2001) (“Because defendant only declined to
answer some questions regarding a few limited topics and only
asserted a need for counsel with respect to questions regarding
motive . . . the police detective was permitted to continue
interviewing defendant regarding other matters pertaining to
the . . . murder.”); State v. Brennan, 850 P.2d 202, 206 (Idaho
Ct. App. 1993) (affirming the trial court’s denial of a
suppression motion when the defendant refused to discuss “the
events of the night of June 19” with the police but agreed to
discuss “related background events”); see generally 2 Wayne
R. LaFave et al., Crim. Proc. § 6.9(g) (4th ed., Dec. 2020
update) (“It is possible that the defendant’s invocation of his
counsel “a broad, rather than a narrow, interpretation.” Barrett,
479 U.S. at 529.
14
right to counsel will be limited in some way, in which case
application of the Edwards rule is limited to the same extent,
as the Supreme Court concluded in Connecticut v. Barrett.”).
Rought’s brief acknowledges that invocations can be limited in
scope, as Rought’s counsel conceded at oral argument. 4
There is scant authority, however, addressing the
interaction between the Barrett and Bradshaw decisions — that
4
The dissent contends that Barrett does not justify
“holding that police may continue questioning a suspect after
he has invoked his right to counsel on a topic that is germane
to their investigation.” Dissenting Op. 9. This contention is
refuted by the Barrett decision itself: after the suspect there
invoked his right to counsel as to written statements, law
enforcement continued to question him about the very same
investigation and secured an oral confession, which the Court
held admissible. 479 U.S. at 525, 529.
The dissent counters that “Barrett’s invocation as to
written statements is not analogous to a topic-specific
invocation” because “Barrett’s invocation did not suggest that
he felt unable to handle the pressures of interrogation on any
topic.” Dissenting Op. 9–10. This account of Barrett is
implausible. The Court’s opinion offers no basis for
distinguishing between limited invocations that suggest an
inability to “handle the pressures of interrogation on any topic”
and those that do not. To the contrary, the Court distinguished
between invocations that are “limited” and those that are
“effective for all purposes,” with the scope of the former to be
discerned by the “tenor or sense of a defendant’s response” to
the Miranda warnings, and not some gestalt impression of a
suspect’s fortitude under questioning, as the dissent would
have it. 479 U.S. at 528-30.
15
is, between limited invocations and post-invocation initiations.
It is clear that if law enforcement unilaterally seeks to obtain
statements from a suspect about matters within the scope of a
limited invocation, those statements would be inadmissible.
See Barrett, 479 U.S. at 529. But when can law enforcement
resume interrogation on a topic covered by a limited
invocation? And what qualifies as an “initiation” on a covered
topic following a limited invocation?
As an initial matter, it cannot be the case, as Rought
asserts, that a complete cessation of all interrogation is required
before law enforcement can resume interrogation on a covered
topic. That would be inconsistent with the Barrett decision,
which counsels that interrogation can continue as to matters
outside the scope of a limited invocation. Instead, it is
sufficient if law enforcement respects the suspect’s wishes and
ceases interrogation concerning any topic covered by a limited
invocation. This means no more questions not only about the
covered topic, but also about any topics “that the police should
know are reasonably likely to elicit an incriminating response
from the suspect” about the covered topic. Innis, 446 U.S. at
301 (footnote omitted).
Assuming that law enforcement has ceased
interrogation about the covered topic, we agree with the
Government that as a practical matter, a suspect’s post-
invocation “initiation” must mean something like bringing “the
subject back up.” Gov’t Br. 26; see also Oba, 978 F.2d at 1130(concluding there was no Edwards violation where suspect
“initiated further discussion” concerning the topic covered by
his limited invocation). Following Bradshaw and Velasquez,
we hold that after a limited invocation, “an initiation occurs
when a suspect initiates a [line of discussion that] evinc[es] a
16
willingness and a desire for a generalized discussion about the
[covered topic].” Velasquez, 885 F.2d at 1085. And we agree
with the District Court that it is important for the suspect to
bring the covered topic back up without undue prompting from
law enforcement. See App. 97 (“[L]aw enforcement did not
prompt Rought’s return to the subject of Mr. Carichner”). As
noted above, then, there is no “initiation” on a covered topic if
the suspect is responding to “words or actions on the part of the
police . . . that the police should know are reasonably likely to
elicit an incriminating response from the suspect” concerning
the covered topic. Innis, 446 U.S. at 301 (footnoted omitted);
cf. Edwards, 451 U.S. at 484 (“[A] valid waiver of th[e] right
[to counsel] cannot be established by showing only that [a
suspect] responded to further police-initiated custodial
interrogation even if he has been advised of his rights.”). 5 That
is, there is no “initiation” by the suspect if the suspect is
responding to interrogation that law enforcement should know
is reasonably likely to elicit a response on the covered topic. 6
In sum, if a suspect makes a limited invocation of the
5
There may be other circumstances in which law
enforcement unduly prompts a suspect to initiate a post-
invocation discussion of a topic covered by a limited
invocation short of interrogation, but they are not before us,
and we need not consider them. Likewise, we need not
consider whether law enforcement must re-inform a suspect of
his Miranda rights before resuming interrogation on a covered
topic following an initiation — though doing so would likely
minimize doubt that a suspect’s waiver is voluntary, knowing,
and intelligent.
6
The dissent’s suggestion that today’s decision creates
a “gotcha game” because interrogators “can try to induce [a
17
right to counsel, the Edwards rule is limited to the same extent.
See 2 LaFave, supra, Crim. Proc. § 6.9(g). Law enforcement
must honor the suspect’s request and cease interrogation
concerning any topics covered by the invocation. If the suspect
then initiates discussion of covered topics without prompting
from law enforcement, interrogation can resume as to those
topics. If the suspect validly waives the right to silence and the
previously invoked right to counsel, then the suspect’s
statements on the covered topic may be admissible at trial.
B.
We now evaluate Rought’s arguments in light of these
legal principles.
1.
Rought first argues that his invocation of the right to
counsel was not limited to the circumstances of Carichner’s
death but was “for all purposes,” and that law enforcement was
therefore required to cease interrogation entirely under
Edwards. We disagree.
Whitehead properly informed Rought of his Miranda
rights at the outset of the interrogation. Rought said he was
willing to talk “to a point.” Rought proceeded to discuss a
variety of topics, including his addiction, his fentanyl source,
suspect] to talk about the very topic that he has said he does
not want to discuss,” see Dissenting Op. 1, is thus misplaced.
If interrogators do so, the suspect will not have re-initiated and
the Edwards rule will still be in effect as to any topics covered
by the invocation.
18
his relationship with Carichner, and his criminal history. It was
only when Whitehead said, “So let’s talk about Dana. What
happened there?” that Rought responded, “I don’t really want
to talk about that aspect without my lawyer. . . . That’s a serious
situation. I mean, they’re trying to roof me.”
In context, it is plain that “that aspect” refers to the
circumstances of Carichner’s death. Rought had previous
experience with the criminal justice system, understood his
Miranda rights, and openly spoke about other facets of his own
criminal conduct. He had just been indicted for possession
with intent to distribute resulting in serious bodily injury and
death — a charge likely to result in a long prison sentence.
Given this context and the course of the interrogation up to the
point of Rought’s invocation, “that aspect” is most naturally
understood to refer to Carichner’s death — a “serious
situation” that could result in Rought getting “roofed,” and
distinct from the subjects Rought had been discussing up to
that point.
Rought argues that his invocation was not so limited,
and that “‘that aspect’ could mean only one thing: any matter
relating to the circumstances of Carichner’s death, including
Rought’s involvement in drug dealing in general.” Rought Br.
22. Alternatively, he argues that his invocation was ambiguous
and should be construed broadly. Again, we disagree, and the
District Court’s determinations to the contrary were not clearly
erroneous. It is not plausible 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 (emphasis added). To
accept Rought’s argument would require “a disregard of the
ordinary meaning of [his] statement.” Barrett, 479 U.S. at 530.
19
In context, the limited nature of Rought’s invocation is not
ambiguous. Cf. In re Friedman’s Inc., 738 F.3d 547, 554 (3d
Cir. 2013) (noting that ambiguity must be evaluated in light of
overall context).
Rought further argues that it would “belie[] common
sense” to find that he “was sufficiently astute and calm” to
make only a limited invocation, and that it is “perverse” to
penalize a suspect who “happens to be too garrulous for his
own good” because his lawyer has not yet arrived. Rought Br.
22-23. These arguments are beside the point. The Supreme
Court has made clear that Miranda protects a suspect’s choice
to speak or not, and that if the warnings are understood, it is of
no moment “that some might find [Rought’s] decision
illogical.” Barrett, 479 U.S. at 529-30.
We therefore conclude that there was no clear error in
the District Court’s determination that Rought’s “invocation of
the right to counsel was limited and not broad in nature,” and
that he “left all other subjects open to questioning.” App. 97.
2.
Rought next argues that he did not initiate the post-
invocation discussion of Carichner’s death. He asserts initially
that there cannot be a post-invocation initiation if “the
interrogation never ceases.” Rought Br. 23. We reject this
argument for reasons already given — the teaching of Barrett
is that interrogation need not cease entirely following a limited
invocation, but can continue as to matters not covered by the
invocation.
After Rought’s invocation, Whitehead responded that
20
he respected Rought’s right, and refocused the interrogation on
Rought’s drug supplier, L.B. In an effort to persuade Rought
to cooperate in pursuing L.B., Whitehead emphasized the harm
that drug addiction and drug dealers visit on the community,
and mentioned the overdose of Rought’s friend Stan Derby,
another addict who bought from L.B. Whitehead asked for
information that would help in “going up the ladder” after L.B.
and others like him. Whitehead’s comments prompted Rought
to state that drug dealers are “killing my friends just as much
as, right now, you’re trying to say that I killed” Carichner. We
hold that when Rought made this statement, he initiated
discussion on Carichner’s death and thereby opened himself up
to further interrogation on that subject. His voluntary return to
the subject of his then-alleged role in Carichner’s death
evinced a willingness for a generalized discussion about the
issue. See Bradshaw, 462 U.S. at 1045-46 (plurality opinion)
(concluding that respondent initiated post-invocation by
asking, “Well, what is going to happen to me now?”);
Velasquez, 885 F.2d at 1085 (holding that defendant initiated
post-invocation by asking, “What is going to happen?”).
Rought argues that Whitehead’s comments following
Rought’s invocation about Derby’s overdose and going after
L.B. were intended “to elicit Rought’s verbal response” about
Carichner, in order “to create a record that might support a
finding of post-invocation initiating.” Rought Br. 24. As a
general matter, we acknowledge that it is not totally
unforeseeable that an appeal to Rought’s conscience and a
reference to Derby’s overdose could lead Rought to discuss
Carichner’s overdose.
But on this record, we agree with the District Court that
“[t]he question[s] about L.B. and Mr. Derby [concerned]
21
subjects distinct from . . . the circumstances surrounding Mr.
Carichner and [were] not ones that law enforcement should
have reasonably anticipated would prompt Rought to renew
discussions about Mr. Carichner.” App. 97. Much of the
interrogation up to that point was focused on gathering
information about L.B. and discussing the deleterious effects
of drug addiction and drug dealing. Rought had been willing
to discuss those issues, but then carved out Carichner’s death
as a forbidden topic. An agent in Whitehead’s position could
reasonably have expected that Rought would continue to
differentiate among the distinct issues in the interrogation,
notwithstanding some overlap in subject matter. 7 Likewise, an
agent in Whitehead’s position could reasonably have expected
that his request for Rought’s help in going after L.B. would not
prompt Rought to bring Carichner back up shortly after Rought
indicated that he did not want to discuss Carichner. We do not
think it justifiable, given this context, to charge Whitehead
with the knowledge that his comments may have elicited a
response from Rought about Carichner’s death. See Innis, 446
U.S. at 301 (holding that interrogation includes “words or
actions on the part of the police . . . that the police should know
7
The dissent’s argument that Carichner’s death,
Derby’s death, and the effects of drugs on the community were
all part of one big topic of conversation is belied by the record.
Rought and his interrogators differentiated between these
subjects, the District Court accordingly found that they were
“distinct,” and that finding was not clearly erroneous. App. 97.
22
are reasonably likely to elicit an incriminating response”). 8
3.
Lastly, Rought argues that any post-invocation waiver
was not effective because he was not “fully aware of the
consequences if he were to waive his right to counsel to any
extent.” Rought Br. 26. Rought argues in particular that he
“could not have been fully aware of the consequences
concerning involvement in a conspiracy, and how broadly such
charges would sweep.” Id. But he otherwise concedes that,
given “the totality of the circumstances, it might be reasonable
to infer that [he] was fully aware of the consequences of
waiving [the] right to counsel concerning legal issues arising
out of any involvement” in Carichner and Giberson’s
overdoses. Id.Rought’s argument that his waiver was invalid because
he did not foresee all of its potential consequences is meritless.
It is beyond cavil that “[t]he Constitution does not require that
8
Rought also takes issue with Whitehead’s comments
that Rought “had a role” in Carichner’s death and that Rought
must “feel like shit” about it. By the time Whitehead made
these comments, however, Rought had already initiated
discussion about Carichner’s death, and was thus subject to
interrogation about that topic. Velasquez, 885 F.2d at 1087.
Accordingly, we do not reach the question whether these
comments by Whitehead amounted to interrogation under
Innis, as the answer does not affect our disposition of Rought’s
appeal. The dissent’s suggestion that these statements have
any bearing on whether Rought re-initiated discussion about
Carichner’s death is mistaken for the same reason.
23
a criminal suspect know and understand every possible
consequence of a waiver.” Spring, 479 U.S. at 574. A waiver
is generally held to be 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).
We long ago observed that “[i]t is not in the sense of
shrewdness that Miranda speaks of ‘intelligent’ waiver but
rather in the tenor that the individual must know of his
available options before deciding what he thinks best suits his
particular situation.” Collins v. Brierly, 492 F.2d 735, 739 (3d
Cir. 1974) (en banc). A similar principle applies to the
voluntariness inquiry. See Barrett, 479 U.S. at 530 (“The fact
that some might find Barrett’s decision illogical is irrelevant,
for we have never ‘embraced the theory that a defendant’s
ignorance of the full consequences of his decisions vitiates
their voluntariness.’” (footnoted omitted) (quoting Oregon v.
Elstad, 470 U.S. 298, 316 (1985))).
Rought makes only the above argument concerning
waiver; he has thus forfeited all others. See Barna v. Bd. of
Sch. Dirs., 877 F.3d 136, 145 (3d Cir. 2017). Even if Rought
had preserved additional arguments and not conceded the
point, we would readily conclude that his post-invocation
waiver was voluntary, knowing, and intelligent under the
totality of the circumstances. Rought was read his Miranda
rights, signed a form acknowledging that he understood them,
and consented to questioning. He had prior experience with
the criminal justice system and was surely aware that his
statements to law enforcement could be used against him.
There is also no basis in the record for finding involuntariness.
Neither Whitehead’s comment about Rought’s role in
24
Carichner’s death nor anything else he or Yelland said or did
approaches the kind of law enforcement overreach necessary
to render a statement involuntary. See Colorado v. Connelly,
479 U.S. 157, 163-65 (1986); Velasquez, 885 F.2d at 1087-89;
Miller v. Fenton, 796 F.2d 598, 603-13 (3d Cir. 1986); 2
LaFave, supra, Crim. Proc. § 6.2(c) nn.120-61 and
accompanying text. By choosing to speak in detail about the
circumstances of Carichner’s death after initiating discussion
on that topic, Rought knowingly, intelligently, and voluntarily
waived his right to remain silent and his limited invocation of
the right to counsel. See Berghuis, 560 U.S. at 384; Velasquez,
885 F.2d at 1087-89.
* * * * *
Rought made a limited invocation of his right to
counsel, cutting off questioning only about the death of Dana
Carichner. Shortly after that invocation, he initiated
conversation with law enforcement about Carichner’s death,
and waived his previously invoked right not to discuss
Carichner without counsel’s assistance. Rought’s post-
invocation statements were thus admissible against him at trial,
and the District Court correctly denied his motion to suppress.
IV.
For the foregoing reasons, we will affirm the judgment
of the District Court.
25
United States of America v. James Rought
No. 20-2667
_________________________________________________
ROTH, Circuit Judge, dissenting.
The right to counsel during an in-custody interrogation
should not be the target of a “gotcha game.” 1 The interrogator
shouldn’t consider a suspect’s invocation of the right to
counsel as an opportunity to trick the suspect into bringing up,
on his own, the protected subject matter. If the suspect does
so, “gotcha!” He has waived the right to counsel.
The Majority has created the perfect playing field for a
gotcha game. In permitting a “limited,” topic-specific
invocation of the right to counsel, the Majority leaves the
suspect in a morass of what topics are protected by the request
for counsel and what topics the interrogators can continue to
pursue. The interrogators not only can continue questioning
him about other topics, but they also can try to induce him to
talk about the very topic that he has said he does not want to
discuss. If the suspect is induced to say something about the
protected topic, he has waived the right to counsel. Gotcha!
For these reasons, I do not agree with the Majority’s decision.
I.
1
“Gotcha” is defined as “to exultingly point out a blunder, etc”.
Random House Webster’s College Dictionary, (2d ed. 1999).
1
Miranda 2 is based on the Court’s determination that “in-
custody interrogation . . . contains inherently compelling
pressures which work to undermine the individual’s will to
resist and to compel him to speak where he would not
otherwise do so freely.” 3 “Even without employing brutality,
the ‘third degree’ or . . . specific stratagems . . . the very fact of
custodial interrogation exacts a heavy toll on individual liberty
and trades on the weakness of individuals.” 4 Thus, “custodial
interrogation [must] be preceded by advice to the putative
defendant that he has the right to remain silent and also the
right to the presence of an attorney.” 5 If the suspect invokes
his right to counsel, it creates a presumption “that he considers
himself unable to deal with the pressures of custodial
interrogation without legal assistance.” 6 Police “must cease
the interrogation if at any point the suspect indicates that he
wishes to remain silent or that he wants an attorney.” 7
A.
The Majority seems oblivious to the coercive character
of custodial interrogation that motivated the Supreme Court in
Miranda 8 to protect the constitutional right against self-
incrimination. This inherently coercive pressure of custodial
2
Miranda v. Arizona, 384 U.S. 436 (1966).
3
Id.at 467
4
Id. at 455.
5
Edwards v. Arizona, 451 U.S. 477, 481–82 (1981).
6
Arizona v. Roberson, 486 U.S. 675, 683 (1988).
7
United States v. Velasquez, 885 F.2d 1076, 1084 (3d Cir.
1989) (citation omitted).
8
384 U.S. 436.
2
interrogation may affect the suspect in several significant
ways.
Of prime importance is the fact that a suspect’s decision
to talk about some topics, but not others, may be compromised
by the ongoing interrogation. When a suspect invokes his right
to counsel, he has indicated “that he considers himself unable
to deal with the pressures of custodial interrogation without
legal assistance.” 9 If a suspect explicitly states that
interrogation on some topics is too much for him, can we
assume that he can handle interrogation on similar topics? In
particular, if the suspect has come to this conclusion while the
coercive interrogation is still ongoing, how reliable is his
decision? As Rought argues, it “belies common sense” to
conclude that a suspect “[i]s sufficiently astute and calm”
during an FBI interrogation “to carve out a subset of . . .
discussion topics” 10 that he is able to handle. 11
Moreover, even if a suspect can “carve out a subset of
discussion topics,” the Majority ignores the difficult legal
landscape that the suspect now must navigate to avoid being
caught in a “gotcha game”:
9
Roberson, 486 U.S. at 683.
10
Opening Br. 23.
11
Indeed, even the suspect’s statements on other topics not
covered by the invocation are likely tainted by the coercive
nature of the custodial interrogation.: “[T]he presumption . . .
that [the suspect] considers himself unable to deal with the
pressures of custodial interrogation without legal assistance . .
. does not disappear simply because the police have
approached the suspect, still in custody, still without counsel,
about a separate investigation.” Roberson, 486 U.S. at 683.
3
• While in this coercive setting, the suspect must make
sure that his invocation of the right to counsel is
“unequivocal,” not just unequivocal from his own
perspective or even from a reasonable layperson’s
perspective, but from the perspective of a reasonable
police officer. 12 A request for an attorney, which is
ambiguous or equivocal, as understood by a reasonable
interrogator, does not invoke the right to counsel. 13
• Moreover, under the Majority’s holding, the suspect
must now make sure that an unequivocal invocation is
not construed (also from the perspective of an
interrogator 14) as being “limited” in some way. If the
suspect intended the invocation to be unlimited and the
interrogators misconstrue it as limited and continue to
ask him questions, what is the suspect to make of their
earlier promise to cease interrogation if he invoked his
rights? Does he clarify that his invocation was not
limited by invoking his rights again or does he simply
conclude that the interrogators have no intention of
12
Davis v. United States, 512 U.S. 452, 459 (1994); accord
Flamer v. Delaware, 68 F.3d 710, 725 (3d Cir. 1995).
13
Id.14
Compare Burrell v. Commonwealth, 710 S.E.2d 509, 516
(Va. Ct. App. 2011) (“[T]he qualification must be one that a
reasonable police officer would understand as placing a
specific question outside the boundaries of the
interrogation[.]”), with People v. Firestine, 132 N.E.3d 886,
894–95 (Ill. App. Ct. 2019) (“We find that the better approach
is to hold that, if a qualification or limit is ambiguous, the
qualification or limit itself is ineffective.”).
4
respecting his rights and that re-invoking them would
be “futile”? 15
• If the suspect did intend his invocation to be limited, he
must determine what scope a reasonable interrogator
will give to the limitation. 16 If the police ask about
topics that the suspect believed were covered by his
invocation, will he realize that the police merely
misconstrued his invocation—rather than ignored it—
and clarify the invocation for them? If the suspect is
frightened or timid or has poor command of English,
will he be able to do so? Perhaps he will just conclude
that clarification would be futile.
• Even if the interrogators properly construe his
limitation, the suspect must make sure that he does not
inadvertently say something that will later be construed
by a court as his reinitiating on his own the discussion
of topics that he has said he is unable to handle without
counsel.
• Finally, the suspect must do all this while continuing to
respond to interrogation on other topics.
The number of landmines a suspect must avoid is mind-
boggling. I cannot accept a rule that treats a suspect like a law
15
Davis, 512 U.S. at 472–73 (Souter, J., concurring).
16
This situation is a prime example of how exceedingly
difficult it is to draw a line between what is and what is not
“covered” by a topic-specific invocation. Looking at the case
before us, did Rought’s invocation of counsel mean that he did
not want to talk about Carichner’s death without counsel
present or that he did not want to talk about his drug dealings
with Carichner, or both. The government claims the former,
but that is not clear from the record.
5
school student who is taking an exam on criminal procedure.
For suspects, the interrogation is not a hypothetical fact
pattern; it is something they must navigate in real time while
under extreme pressure—held alone and against their will,
beset by police interrogators, and fearful of conviction and
imprisonment. In the real world, the Majority’s labyrinthine
approach opens the door for the police to play “gotcha” by
enabling them to (1) grind down a suspect’s will and “badger[]
[him] into waiving his previously asserted Miranda rights,” 17
or (2) subtly subvert the limits imposed by his topic-specific
invocation.
The Majority’s approach will favor savvy suspects who
understand the rules of the game but it will leave unsavvy
suspects to fend for themselves. That is precisely the result
that Miranda forbids: Under Miranda, the interrogators must
state the rules, clearly and unequivocally, at the beginning of
the interrogation for the benefit of savvy and unsavvy suspects
alike.
A.
At one time, the Supreme Court jealously guarded
Miranda’s prophylactic rule. In Edwards, 18 the Court held that
once a suspect invokes his right to counsel, he cannot later
waive that invocation without counsel present 19 unless the
suspect, not the police, “initiate[s] further discussions” about
17
Id. at 485 (O’Connor, J.) (quotation marks and citation
omitted).
18
451 U.S. 477 (1981).
19
See Roberson, 486 U.S. at 681.
6
the investigation. 20 Otherwise, police could “badger[] the
defendant into waiving his previously asserted Miranda
rights.” 21 The Court has also held that “[t]he Edwards rule . .
. is not offense specific: Once a suspect invokes the Miranda
right to counsel for interrogation regarding one offense, he may
not be reapproached regarding any offense unless counsel is
present.” 22 “[T]he presumption raised by a suspect’s request
for counsel—that he considers himself unable to deal with the
pressures of custodial interrogation without legal assistance—
does not disappear simply because the police have approached
the suspect, still in custody, still without counsel, about a
separate investigation.” 23
Over time, however, the Court has taken some steps to
pare Miranda back. For example, in Davis v. United States,
the Court held that Edwards does not apply where “the
suspect’s statement is not an unambiguous or unequivocal
request for counsel.” 24 That holding drew forceful
disagreement from four Justices, who stated that it lacked
“coherence with nearly three decades of case law addressing
the relationship between police and criminal suspects in
custodial interrogation.” 25 Obviously, we are bound by Davis.
But unlike the Majority, I would not erode Miranda further.
Our precedents do not support the Majority’s narrow
20
Smith v. Illinois, 469 U.S. 91, 95 (1984) (citation omitted).
21
Davis, 512 U.S. at 458 (quotation marks and citation
omitted).
22
McNeil v. Wisconsin, 501 U.S. 171, 177 (1991) (citing
Roberson, 486 U.S. at 682).
23
Roberson, 486 U.S. at 683.
24
Davis, 512 U.S. at 461–62.
25
Id. at 467–68.
7
construction of topic-specific invocations of the right to
counsel. Rather, Edwards and its progeny convince me that,
once a suspect invokes the right to counsel as to one aspect of
the police’s investigation, the police may not continue to
question him, while still in custody and still without counsel,
about any aspect of their investigation.
B.
The Supreme Court has never held that topic-specific
invocations of the Fifth Amendment right to counsel are
“limited” to the identified topics. 26 Before today, neither had
we. Only one other circuit has done so in a published in
opinion, 27 relying (like the Majority) on Connecticut v.
Barrett. 28 A handful of district and state courts have done the
same.
None of these courts has explained, however, why
Barrett supports holding that police may continue questioning
a suspect after he has invoked his right to counsel on a topic
that is germane to their investigation. Simply put, it does not.
Barrett did not involve a topic-specific invocation. Rather,
Barrett told police “that he would not give a written statement
unless his attorney was present but had ‘no problem’ talking
about the incident.” 29 The Supreme Court held that Barrett’s
subsequent oral statements were admissible. 30
26
But see Roberson, 486 U.S. at 684 (alluding to the possibility
of topic-specific invocations in a counterfactual).
27
United States v. Ivy, 929 F.2d 147, 152–53 (5th Cir. 1991).
28
479 U.S. 523 (1987).
29
Barrett, 479 U.S. at 525.
30
Id. at 529.
8
Even if Barrett had not affirmatively stated his
willingness to undergo unlimited oral interrogation, 31
however, Barrett’s invocation as to written statements is not
analogous to a topic-specific invocation. Notwithstanding the
Barrett Court’s dictum that Barrett’s invocation would have
been effective to exclude written statements, Miranda
provided for the right to the presence of counsel for a specific
purpose—i.e., custodial interrogation. 32 Barrett’s invocation
did not suggest that he felt unable to handle the pressures of
interrogation on any topic. The act of writing down a statement
does not involve interrogation to any extent that providing an
oral statement does not already involve. It thus is not
surprising that asking for counsel as to only written statements
is not sufficient to force police to stop oral questioning
altogether. 33 By contrast, a topic-specific invocation relates
31
See United States v. Martin, 664 F.3d 684, 689 (7th Cir.
2011) (holding that lack of explicit consent to further
questioning was not dispositive).
32
See McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)
(explaining that Edwards applies only where the suspect asks
“for the particular sort of lawyerly assistance that is the subject
of Miranda”—“the assistance of an attorney in dealing with
custodial interrogation by the police”).
33
Some courts have similarly held that a suspect’s refusal to
sign a form or take a polygraph without counsel is a “limited”
invocation. See, e.g., United States v. Oba, 978 F.2d 1123,
1130 (9th Cir. 1992); Stumes v. Solem, 752 F.2d 317, 320–21
(8th Cir. 1985). Like Barrett’s refusal to make a written
statement, however, those refusals do not express an inability
to handle the specific type of pressures identified in Miranda.
To be clear, I do not suggest that these invocations (or Barrett’s
invocation) are completely unenforceable under Miranda.
9
directly to the suspect’s ability to deal with the pressures of
custodial interrogation without legal assistance.
Here, Rought indicated that he was unable to deal with
those pressures as to at least some topics. If a suspect
unequivocally states that he cannot handle an interrogation
topic without counsel, all interrogation should stop
immediately. We should not “adopt a regime in which
Edwards’ protection . . . could pass in and out of existence” 34
depending on the topic being discussed. “Vagaries of this sort
spread confusion through the justice system and lead to a
consequent loss of respect for the underlying constitutional
principle.” 35
Because Rought invoked his right to counsel as to at
least one topic of interrogation, Agent Whitehead should have
stopped all interrogation, including questions regarding drug
activity in Wilkes-Barre. Yet, Agent Whitehead immediately
continued questioning Rought.
I would reverse the District Court’s Order denying
Rought’s Motion to Suppress and hold that all of Rought’s
statements after his invocation are inadmissible.
Rather, I conclude that they are inapposite and likely do not
require police to stop all questioning because, unlike Rought’s
invocation, they do not suggest that the suspect was unable to
deal with custodial interrogation specifically.
34
Minnick v. Mississippi, 498 U.S. 146, 154 (1990).
35
Id. at 155.
10
II.
A.
Even assuming, however, that police can continue
questioning about other topics not mentioned in a request for
counsel, I tentatively agree that the District Court did not
clearly err in holding that Rought’s invocation was limited to
“the subject of Mr. Carichner,” 36 but only insofar as “the
subject of Mr. Carichner” includes anything about Carichner
and any drug sharing between Rought and Carichner. To the
extent that the District Court construed Rought’s invocation as
limited only to Carichner’s death, it clearly erred. Agent
Whitehead asked, “Let’s talk about Dana? What happened
there?” Rought responded, “I don’t really want to talk about
that aspect without my lawyer because, like, that’s a serious
situation. I mean, they’re trying to roof me . . . .” No
reasonable construction of that statement would allow the
District Court to find that it was limited to Carichner’s death.
Whitehead said, “Let’s talk about Dana,” not “Let’s talk about
Dana’s death”; he asked, “What happened there,” not “What
happened to Carichner.” These statements are not susceptible
36
Appx. 97. I note, however, that even this broader
construction survives only because of our generous standard of
review. The more reasonable construction of Rought’s
invocation is that it covered everything for which the
government is “trying to roof” him (i.e., send him to prison).
Thus, if we were reviewing the invocation de novo, I would
hold that a reasonable police officer would construe it as
covering every topic that could reasonably have led to
incriminating statements supporting the charge in the original
Indictment.
11
to such a narrow reading.
The Majority holds that “that aspect” was limited to “the
circumstances of Carichner’s death” in part because Rought
had already “openly spoke[n] about other facets of his own
criminal conduct.” But a suspect can invoke his rights even as
to topics about which he has previously spoken. Moreover, the
charges on which the government was trying to “roof” Rought
(send him to prison) required proof of drug distribution, not
merely that Rought caused Carichner’s death.
B.
The Majority holds that Rought reinitiated discussion
about Carichner when he said, “you’re trying to say that I killed
my friend.” Not so. Before Rought said anything, Whitehead
continued the interrogation by asking about Derby and drug
dealing’s effects on the “community.”
The District Court believed that “[t]he questioning
about L.B. and Mr. Derby, a person to whom L.B. sold drugs,
were subjects distinct from that of the circumstances
surrounding Mr. Carichner.” 37 Again, I disagree. Rought
allegedly provided Carichner with drugs obtained from L.B.,
causing his death. Derby similarly died because of L.B.’s
drugs. Inevitably, focusing on Derby’s death and the effects
on the “community” would lead back to Carichner’s similar
death and its similar effects on the community. Indeed, earlier
in the interrogation, Whitehead said that “a tragedy resulted
from your actions. And not just yours . . . . This is what’s going
on daily in the community.”
37
Appx. 97.
12
Nor did Whitehead try to turn the conversation back to
L.B. He said that he wanted to talk about L.B. because he was
“trying to make sense of it,” i.e., make sense of the overdoses.
Only then, when questioned about L.B. in that context, did
Rought say, “you’re trying to say that I killed my friend.”
Rought’s statement did not change the subject of the
conversation. At most, Rought made a passing reference to the
charges against him while talking about how other drug
dealers were “killing [his] friends”—the same topic Whitehead
had already brought up in his questions about Derby, the
“community,” and “wanting to understand” the overdoses.
This passing reference does not show a “desire for a
generalized discussion” about topics Rought explicitly said he
would not discuss without counsel—at least not any more than
Whitehead’s questioning had already brought up those topics.
Yet, Whitehead took this as an invitation: “[W]e’re not saying
you killed him, James, but what we’re saying is that, um, you
had a role. . . . and I’m sure you feel like shit. . . . [N]one of us
are going to say that you went there with intent and malice.”
Whitehead’s questions and statements were directed at
Rought. His question about Derby was made in connection
with his statements about being “caught in a bad spot,”
“help[ing] the community,” and a slew of others. They were
provocative: “I’m sure you feel like shit.” And at this point,
Whitehead could clearly see that Rought was distraught over
the loss of his friends. Goading a defendant with comments
about the loss of his friends and hurling accusations at him in
an FBI interrogation room is custodial interrogation. 38
38
Cf. United States v. Lafferty, 503 F.3d 293, 302 (3d Cir.
2007) (holding that police did not “scrupulously honor”
13
Accordingly, the interrogation was reinitiated by Whitehead,
not Rought.
III.
In conclusion, this case is a prime example of why
topic-specific invocations should not be “limited.”
Interrogations are too messy, and the pressures they exert too
subtle and susceptible to police exploitation. Because I
disagree with the Majority’s new rule and its application of that
rule to the facts of this case, I respectfully dissent. I would
suppress all of Rought’s statements after his invocation of the
right to counsel. In the alternative, if we were to allow limited
invocation of the right to counsel, I would hold that Rought did
not waive his request for counsel and similarly that Rought’s
statements after the invocation of the right to counsel should
be suppressed.
invocation of right to remain silent by placing defendant in
interrogation room with codefendant while they interrogated
the codefendant).
14