United States v. Sweets , 526 F.3d 122 ( 2007 )

Filed: July 6, 2007
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4008
(CR-04-564)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES DANA SWEETS, a/k/a Sweets,
Defendant - Appellant.
O R D E R
The court amends its opinion filed July 3, 2007, as follows:
On page 1 in the first line under the “Counsel” section, the
period in the name “G. Arthur Robbins” is deleted, and the “&” in
“Chesapeake & Meridian” is deleted. On page 2 in the third line
of the “Counsel” section, the “&” in “Chesapeake & Meridian” is
deleted.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 06-4008
JAMES DANA SWEETS, a/k/a Sweets,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CR-04-564)
Argued: November 28, 2006
Decided: July 3, 2007
Before NIEMEYER and MICHAEL, Circuit Judges, and
Joseph R. GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in
which Judge Michael and Judge Goodwin concurred in part and con-
curred in the judgment. Judge Michael and Judge Goodwin each wrote
a separate opinion concurring in part and concurring in the judgment.
COUNSEL
ARGUED: G Arthur Robbins, CHESAPEAKE MERIDIAN,
Annapolis, Maryland, for Appellant. Kwame Jangha Manley, Assis-
2 UNITED STATES v. SWEETS
tant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: James
C. Howard, CHESAPEAKE MERIDIAN, Annapolis, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Baltimore,
Maryland, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
James Dana Sweets was convicted for his participation in an exten-
sive drug trafficking conspiracy involving more than 50 grams of
crack cocaine, in violation of 21 U.S.C. § 846, and for his participa-
tion in a conspiracy to possess firearms in furtherance of a drug traf-
ficking crime, in violation of 18 U.S.C. § 924(n) (currently, 18
U.S.C.A. § 924(o) (West 2006)). The district court sentenced Sweets
to 360 months’ imprisonment. On appeal, Sweets contends principally
that Baltimore City police and federal agents obtained evidence
against him on two different occasions through violations of his Fifth
Amendment rights and then used the evidence against him at trial.
First, he alleges that on May 17, 2004, Baltimore City police offi-
cers and federal agents coerced him into revealing the whereabouts of
John Long, whom police were seeking in connection with a murder
investigation. After Long was arrested, he pleaded guilty to drug traf-
ficking charges and thereafter testified against Sweets pursuant to his
plea agreement, implicating Sweets in the conspiracy for which he
has now been convicted. Sweets contends that by coercing him to dis-
close Long’s location, the police compelled Sweets to be a witness
against himself.
Sweets also alleges that six months later, on November 18-19, 2004,
after he had been arrested by Baltimore City police and federal agents
on first-degree murder charges, he was questioned by police and gave
a statement without having been advised of his Miranda rights; he was
then questioned again on the same matters after having been given
Miranda warnings. Sweets alleges that this method was an intentional
strategy by police to legitimize his earlier unwarned statement.
UNITED STATES v. SWEETS 3
We conclude that the May 17, 2004 coerced disclosure of Long’s
whereabouts did not violate Sweets’ Fifth Amendment rights against
self-incrimination because Sweets’ disclosure of Long’s location,
even if testimonial in nature, was not incriminating. Moreover, the
government did not introduce the fact of Sweets’ production or any
fruits of that fact at trial. With respect to the interrogation of Sweets
on November 19, 2004, we conclude that the district court did not
clearly err in finding as a fact that Sweets waived his Miranda rights.
Also rejecting Sweets’ claim that the government violated its obli-
gations under Brady v. Maryland, 373 U.S. 83 (1963), we affirm.
I
Sweets participated in a drug trafficking conspiracy with John
Long, Charles Garrison, and Maurice Green, which lasted approxi-
mately four years and involved the distribution of roughly four to nine
ounces of crack cocaine per week. Sweets was a principal in the con-
spiracy, usually taking 50% of the conspiracy’s profits. As part of the
conspiracy, Sweets and Long kept a half-dozen firearms, including
several handguns, a rifle, and a shotgun.
A jury convicted Sweets on one count of conspiracy involving at
least 50 grams of crack cocaine and one count of conspiracy to pos-
sess firearms in furtherance of drug trafficking. The evidence intro-
duced against Sweets included the testimony of Sweets’ co-
conspirator, Long, photographs of the drugs and drug paraphernalia
found in Long’s hotel room when he was arrested, and Sweets’
incriminating statement given to law enforcement officers on Novem-
ber 19, 2004. Sweets contends that the evidence was introduced
against him in violation of his Fifth Amendment rights. The factual
circumstances of obtaining the evidence were as follows.
A
As part of an investigation of John Long for first-degree murder,
Baltimore City police officers and federal agents visited Sweets at his
house in Baltimore City on May 17, 2004. Police officers knew that
Sweets knew Long, and they went to Sweets’ residence with the hope
4 UNITED STATES v. SWEETS
of learning where Long, who was in hiding as the result of an earlier
police raid, was presently located. Sweets’ girlfriend admitted the
police officers into the house, and after Sweets came out of the bath-
room, the officers accompanied him to the living room to ask him
questions about where Long was located. At first, Sweets denied
knowing where Long was. But after the police told Sweets that they
were going "to lock everybody [Sweets, Sweets’ girlfriend, and her
nephew] up for obstruction of justice if [Sweets] didn’t take them
where [Long] was at," Sweets agreed to take the officers to Long.
After Sweets and the police drove to the hotel where Long was
located and the officers verified that Long was actually there, they
took Sweets back home. While Sweets and the officers were making
the trip to the hotel, other officers remained with Sweets’ girlfriend
and her nephew, preventing Sweets’ girlfriend from going to work
and preventing anyone from making telephone calls.
At the hotel, the police arrested Long pursuant to a warrant and
found drugs and drug paraphernalia in his hotel room. Long later
pleaded guilty to drug charges and agreed to testify against Sweets
about the pair’s drug trafficking activities. The officers used the drugs
and drug paraphernalia recovered from Long’s hotel room as part of
the evidence against Sweets.
B
Six months after visiting Sweets to discover Long’s whereabouts,
police officers again came to Sweets’ house on November 18, 2004,
now with a warrant for his arrest for first-degree murder, a charge not
before us. Before formally arresting Sweets, the police officers hand-
cuffed Sweets and asked him about the whereabouts of Maurice
Green. After some questioning on that subject, Sweets agreed to take
the police to Green, resulting in Green’s arrest. Sweets was then taken
to the police station where, at a little after 12:20 a.m., Detective
Michael Glenn began questioning Sweets. Sweets gave Detective
Glenn an incriminating statement, in which he admitted that Long had
fronted him crack cocaine. At 1:40 a.m., Sweets agreed to repeat the
incriminating statement on tape. The tape contains Sweets’ receiving
and acknowledging Miranda warnings.
The parties dispute when, during the course of these events, Sweets
was first given Miranda warnings. Detective Glenn testified at the
UNITED STATES v. SWEETS 5
suppression hearing before the district court that as soon as he entered
the room, about 12:20 a.m., to question Sweets, he gave Sweets
Miranda warnings, and Sweets, at that time, signed a form containing
the warnings. The form noted that the time of the warnings was 12:24
a.m. Detective Glenn stated that he thereafter questioned Sweets and,
after receiving an inculpating statement, brought in a tape recorder to
record the statement. On tape, he again gave Sweets the Miranda
warnings. Sweets, on the other hand, testified that Detective Glenn
did not give him Miranda warnings when Detective Glenn entered the
room at 12:20 a.m. Rather, Sweets stated that he gave an unwarned
statement after which, at about 1:40 a.m., he was given the Miranda
warnings that were heard on the tape recording. He also said that he
signed the waiver form after giving the first statement, not at 12:25
a.m. as noted on the form.
The taped statement was introduced against Sweets at trial as part
of the evidence against him.
Sweets filed a motion to suppress the testimony of John Long, the
evidence of drugs and drug paraphernalia obtained from Long’s hotel
room on May 17, 2004, and Sweets’ recorded statement taken on
November 19, 2004. The district court denied the motions. The court
concluded that the testimony of Long would not be suppressed,
regardless of how his location became known. With respect to the
November 19, 2004 incriminating statement, the court concluded that
the first interrogation of Sweets at his house about the location of
Green did not taint the statements given by Sweets at the police sta-
tion and that the statements at the police station — both the untaped
and taped versions — were given pursuant to a valid waiver of
Miranda rights.
The jury convicted Sweets of both charged counts. Following sen-
tencing by the district court, Sweets filed this appeal.
II
A
Sweets contends first that John Long’s testimony, as well as the
6 UNITED STATES v. SWEETS
drugs and paraphernalia found in Long’s hotel room, should have
been suppressed as the fruits of Sweets’ coerced disclosure of Long’s
location at the hotel. His argument that he was coerced to give Long’s
location rests on (1) statements by police that they were going to lock
up everyone in Sweets’ house for obstruction of justice if Sweets did
not take the police to Long; (2) the fact that Sweets did not "feel like
[he] had a choice at that point" — the point when he was in the squad
car on the way to John Long’s location; and (3) the police restrictions
on his girlfriend and her nephew, who were required to remain at
Sweets’ house and were prevented from making telephone calls. Thus
Sweets argues that Long’s testimony and the drugs and drug para-
phernalia found in Long’s hotel room were the fruits of his involun-
tary "statement" and should be suppressed as a violation of his Fifth
Amendment rights. See Chavez v. Martinez, 538 U.S. 760, 769 (2003).1
The district court made no findings with respect to Sweets’ claim
that his disclosure of Long’s location was coerced. For purposes of
our analysis, therefore, we assume that Sweets was coerced into
showing police where Long was located — leading to Long’s arrest,
to the recovery of drugs and drug paraphernalia in Long’s hotel room,
and ultimately to Long’s testimony against Sweets. Under this
assumption we must still address whether Sweets was "compelled . . .
to be a witness against himself," within the meaning of the Fifth
Amendment. U.S. Const., amend. V.
The Fifth Amendment right against self-incrimination "applies only
when the accused is compelled [1] to make a testimonial communica-
tion [2] that is incriminating." Fisher v. United States, 425 U.S. 391,
408 (1976). A "testimonial communication" is usually a verbal or
written statement, but it may also include an act. See Doe v. United
States, 487 U.S. 201, 209 (1988) ("[T]he Fifth Amendment privilege
against self-incrimination applies to acts"). Whether a statement or
act, the testimonial communication "must itself, explicitly or implic-
1
Sweets also contends that on this occasion, May 17, 2004, he was not
given Miranda warnings, but appropriately he does not attempt to rely
on the Miranda violation to suppress Long’s testimony as the fruits of
the violation. See United States v. Patane, 542 U.S. 630, 634 (2004);
Oregon v. Elstad, 470 U.S. 298, 307 (1985); Michigan v. Tucker, 417
U.S. 433, 450-51 (1974).
UNITED STATES v. SWEETS 7
itly, relate a factual assertion or disclose information" that incrimi-
nates. Id. at 210 (emphasis added). This requirement removes from
the Fifth Amendment’s protection a myriad of compelled acts that,
while leading to the discovery of incriminating evidence, do not
themselves make an incriminating factual assertion. See, e.g., Penn-
sylvania v. Muniz, 496 U.S. 582 (1990) (responding to a field sobriety
test); South Dakota v. Neville, 459 U.S. 553 (1983) (taking a Breatha-
lyzer test); United States v. Wade, 388 U.S. 218 (1967) (providing a
voice exemplar); Gilbert v. California, 388 U.S. 263 (1967) (provid-
ing a handwriting exemplar); Schmerber v. California, 384 U.S. 757
(1966) (providing a blood sample); Holt v. United States, 218 U.S.
245 (1910) (donning a blouse worn by perpetrator). Thus, "compul-
sion which makes a suspect or accused the source of ‘real or physical
evidence’ [generally] does not violate the Fifth Amendment."
Schmerber, 384 U.S. at 764.
When a compulsory act does make an incriminating factual asser-
tion, however, the privilege against self-incrimination may be impli-
cated. For example, in cases involving the compelled production of
documents where the issue "was whether the act of producing subpoe-
naed documents, not itself the making of a statement, might nonethe-
less have some protected testimonial aspects," Doe, 487 U.S. at 209,
the Supreme Court made "clear that the . . . ‘act of production’ itself
may implicitly communicate ‘statements of fact’" that — if incrimi-
nating — would be privileged as testimonial acts. United States v.
Hubbell, 530 U.S. 27, 36 (2000); see also Chavez v. Martinez, 538
U.S. at 769; United States v. Doe, 465 U.S. 605, 612-14 (1984) (com-
pelled production of business records). The Court reasoned "that the
act of production could constitute protected testimonial communica-
tion because it might entail implicit statements of fact: by producing
documents in compliance with a subpoena, the witness would admit
that the papers existed, were in his possession, and were authentic."
Doe, 487 U.S. at 209 (citations omitted).
B
In the instant case, Sweets was not compelled to make any verbal
or written statement on May 17, 2004. But he was compelled
(arguendo) to act in "producing" Long. Thus, applying this "act-of-
production" doctrine, we recognize the possibility that Sweets’ act of
8 UNITED STATES v. SWEETS
leading the police to Long might have some testimonial content. See
Fisher, 425 U.S. at 410 ("the act of producing evidence in response
to a subpoena nonetheless has communicative aspects of its own,
wholly aside from the contents of the papers produced"). In this case,
however, the testimony latent in the act of production still does not
create a Fifth Amendment violation, because this latent testimony
does not incriminate Sweets in any real and substantial way. See Doe,
465 U.S. at 614 n.13 ("a party who wishes to claim the Fifth Amend-
ment privilege must be confronted by substantial and real, and not
merely trifling or imaginary hazards of incrimination") (citations
omitted)); Marchetti v. United States, 390 U.S. 39, 53 (1968); Heike
v. United States, 227 U.S. 131, 144 (1913).
The testimony latent in Sweets’ production of Long could only be
that Sweets was admitting (1) that he knew Long or (2) that he knew
Long’s location. But neither admission substantially incriminates
Sweets. The fact that Sweets knew Long, a drug conspirator and a
murder suspect, does not suggest that Sweets himself was a drug con-
spirator or a murder suspect. While knowing Long’s location when
the police were looking for him might theoretically admit to more, in
the context of this case, Sweets’ knowledge of Long’s location added
nothing to the store of knowledge that the police had as to Sweets’
role in any criminal offense. The police already knew that Sweets
knew Long and that he might know of his whereabouts. Because the
police already knew that Sweets knew Long and possibly knew his
location — indeed that is why they asked Sweets about Long’s loca-
tion — the act of production itself "add[ed] little or nothing to the
sum total of the government’s information so as to form the basis of
a Fifth Amendment claim." See United States v. Stone, 976 F.2d 909,
911 (4th Cir. 1992) (per curiam). It does not help Sweets’ position to
argue that the coerced disclosure of Long "incidentally provided
information" to the police because Long later agreed to testify against
Sweets and implicate Sweets with the drugs and drug paraphernalia
discovered in Long’s hotel. See New York v. Quarles, 467 U.S. 649,
666, 670-71 (1984) (O’Connor, J., concurring) ("interrogation which
provides leads to other evidence does not offend the values underly-
ing the Fifth Amendment privilege any more than the compulsory tak-
ing of blood samples, fingerprints, or voice exemplars, all of which
may be compelled in an ‘attempt to discover evidence that might be
used to prosecute [a defendant] for a criminal offense’").
UNITED STATES v. SWEETS 9
Even though we conclude that there was no incriminating quality
to knowledge of Long’s location, the government nonetheless did not
seek to prosecute Sweets on some basis that he knew of Long’s loca-
tion. Sweets was not the primary target of the investigation and
indeed was not arrested for criminal conduct until some six months
later, and then for murder. Thus, any incidentally incriminating char-
acter of Sweets’ act neither added to police knowledge nor was an
object of police investigation.
C
Any doubt about whether a Fifth Amendment violation occurred
was eliminated when the government agreed not to use Sweets’ act
of producing Long against him at trial. Indeed, the government agreed
not to use any evidence of the May 2004 questioning of Sweets, and
it did not introduce either the specific location of the hotel in which
Long was arrested or how police came to that location. Because the
government readily agreed not to use evidence that was even arguably
tainted, any testimonial character to Sweets’ act did not "furnish a
link in the chain of evidence needed to prosecute the claimant for a
federal crime." Hoffman v. United States, 341 U.S. 479, 486 (1951).
It therefore cannot be claimed that the government used at trial any
"testimony" of Sweets, whether explicit or latent, that Sweets might
have given on May 17, 2004.
Thus, we readily conclude that in coercing Sweets to reveal the
location of Long, the government did not compel Sweets to be "a wit-
ness against himself," in violation of the Fifth Amendment.
D
Even were Sweets’ arguments accepted that police conduct on May
17, 2004, somehow violated Sweets’ Fifth Amendment rights, any
exclusionary rule that would exist to protect those rights would still
have permitted Long to testify and to authenticate the drugs and drug
paraphernalia found in his hotel room. Whether the theory for admit-
ting the witness’ testimony would be that the testimony was suffi-
ciently attenuated from the unconstitutional act to dissipate the
constitutional taint; that the police would inevitably have discovered
the witness whose testimony was offered; or that the evidence was
10 UNITED STATES v. SWEETS
sourced independent of the illegality, the in-court testimony of a live
witness should rarely if ever be suppressed. See United States v. Cec-
colini, 435 U.S. 268, 280 (1978) (concluding that live witness testi-
mony should be excluded much less often than other unlawfully
obtained evidence). Here, the attenuation between Sweets’ coerced
revelation of Long’s location and Long’s subsequent in-court testi-
mony strongly supports the admission of the testimony. Long’s inde-
pendent acts of will to plead guilty and testify against Sweets, as well
as the lapse of time between the May 17, 2004 events and Sweets’
trial in September 2005, utterly undermine any connection between
the purported constitutional violation and the testimony of the witness
Long. Moreover, "we may not ignore the ‘enormous cost’ of [perma-
nently silencing witnesses] in light of the deterrent purpose of the
exclusionary rule." United States v. Gray, No. 05-4397, slip op. at 25
(4th Cir. July 2, 2007).
Taken as a whole, Sweets’ argument presents a mistaken but com-
mon view of the Fifth Amendment’s self-incrimination clause as a
"right to be free from coercive custodial interrogation." The Amend-
ment, however, says no such thing. Rather, the right against self-
incrimination is a trial right aimed at protecting the accused from the
indignity of being compelled to give testimony against himself. See
Withrow v. Williams, 507 U.S. 680, 692 (1993). At its center is the
right of the accused not to have his own statements introduced against
him at trial. Patane, 542 U.S. at 637. Efforts to protect against such
a violation, therefore, must not degenerate to a judicially-created code
of pretrial police conduct, as Sweets would have it. While certain doc-
trines have arisen to protect the Fifth Amendment trial right, such as
Miranda and the fruit-of-the-poisonous-tree doctrine, the course
advocated by Sweets would do far more than protect him from serv-
ing as a witness against himself. It would indeed tend to convert the
trial right to a general pretrial code of police procedure in conducting
investigations.2
2
While the Due Process Clause of the Fifth Amendment provides pro-
tections against some pretrial police conduct insofar as it "shocks the
conscience," Rochin v. California, 342 U.S. 165, 172 (1952), the Due
Process Clause is not at issue here.
UNITED STATES v. SWEETS 11
In rejecting this approach, we adhere to the text of the constitu-
tional protection that no person "shall be compelled in any criminal
case to be a witness against himself." U.S. Const., amend. V (empha-
sis added). Thus, "if person A takes the stand to testify against defen-
dant B, this is not the same as forcing B to be a witness against
himself, even if B’s compelled pretrial statement led the police to
learn of A’s existence and information." Akhil Reed Amar & Renee
B. Lettow, Fifth Amendment First Principles: The Self-Incrimination
Clause, 93 Mich. L. Rev. 857, 900 (1995).
As the district court concluded, Sweets’ trial right against self-
incrimination was never touched by his coerced disclosure. Even
though physical evidence and the testimony of a co-conspirator were
introduced against him at trial, his own statements never were.
III
Sweets also argues that his incriminating tape-recorded statement
given on November 19, 2004, should have been suppressed because
(1) after he was arrested on that date, he requested an attorney and
was denied one; and (2) his taped statement was given to police fol-
lowing his giving a similar untaped statement which, he alleges, was
not preceded by a Miranda warning. He argues that this taped state-
ment was obtained pursuant to a police strategy to get an unwarned,
unrecorded statement and then get a warned and recorded statement
based on the unwarned statement. See Missouri v. Seibert, 542 U.S.
600, 618 (Kennedy, J., concurring) (noting that use of intentional
question-then-warn strategy would render subsequent warned confes-
sions inadmissible). The district court, however, rejected Sweets’
claims simply on the basis of factual findings.
The court found that after police arrested Sweets on November 19,
2004, they requested, without giving Sweets a Miranda warning, that
Sweets take them to his co-conspirator Maurice Green. Sweets com-
plied, and after he and the police found Green, the police took Sweets
to the police station for questioning. The district court found that at
no point prior to arriving at the police station (or thereafter) did
Sweets ask for an attorney. The court also found that as he led the
police to Green, Sweets was not interrogated about his own case —
12 UNITED STATES v. SWEETS
only about the whereabouts of Green. The district court assumed that
during this process, Sweets was not given Miranda warnings.
After finding Green, the police took Sweets to the police station,
and Detective Glenn, who had not been involved in the earlier process
of finding and arresting Green, began to interrogate Sweets shortly
after 12:20 a.m. The court found that before beginning, Detective
Glenn gave Sweets a Miranda warning and had him sign a form to
confirm the warning. The court also noted that the form acknowledg-
ing and waiving the Miranda rights was given before Glenn’s ques-
tioning actually began. As the court stated:
Miranda rights were fully explained to Mr. Sweets [after the
questioning about the whereabouts of Green but] before the
later questioning by Detective Glenn took place. As I say,
the difference in time, the difference in location, the fact it
was a separate officer and the fact that the first questions
related to the whereabouts of Mr. Green rather than Mr.
Sweets’ personal involvement, I think all bring this case
much more under Mashburn and Oregon v. Elstad than the
. . . unusual circumstance in Seibert where there was a basis
to find an intentional first violation of Miranda to get a con-
fession.
* * *
And it’s at 12:25 [a.m.] that he’s advised of those rights.
They’re explained to him. Each one is initialed. It’s signed
and at that point, there is an interview I find by Detective
Glenn in the company of Detective Carew. . . . There’s an
interview with Mr. Sweets after, as I say, after full Miranda
rights have been provided and Miranda rights have been
waived.
The tape recording itself was not made until over an hour later, at
1:40 a.m., and discloses that Sweets was again given his Miranda
warnings at the beginning of the taped interview.
Based on the testimony of Detective Glenn, the Miranda waiver
forms, and the other matters in the record, we conclude that the dis-
trict court’s factual findings were not clearly erroneous.
UNITED STATES v. SWEETS 13
IV
Finally, Sweets requests a new trial because the government did
not disclose grand jury testimony that contradicted Long’s trial testi-
mony, in violation of United States v. Giglio, 405 U.S. 150 (1972);
see also Brady, 373 U.S. at 83. Before the grand jury, Long testified
that Sweets had shot at a rival drug gang on a particular occasion. At
trial, Long testified that Sweets drove the vehicle and was not the
shooter.
There are two problems with Sweets’ argument. First, he concedes
the fact that he did receive the grand jury transcript in plenty of time
prior to trial. Thus, there could be no violation of Giglio — the gov-
ernment met its disclosure obligation. Second, any violation would be
harmless because it is inconceivable that Sweets would have
impeached Long because he had previously testified that Sweets had
shot at somebody, but at trial indicated that Sweets was in fact not the
shooter. Sweets would be arguing that Long was untrustworthy, but
only by revealing that Sweets might have been the shooter.
The judgment of the district court is
AFFIRMED.
MICHAEL, Circuit Judge, concurring in part and concurring in the
judgment in part:
I concur in parts II.A, III, and IV of the majority’s opinion. My
main disagreement is with Judge Niemeyer’s separate reasoning and
conclusion that James Sweets’s police-compelled disclosure of John
Long’s location does not implicate Sweets’s Fifth Amendment rights.
Nevertheless, I concur in part II’s judgment affirming the district
court’s denial of Sweets’s motion to suppress because the exclusion-
ary rule would not bar Long’s testimony, and Sweets waived his
objection to the admission of the physical evidence seized in Long’s
hotel room.
I.
"To qualify for the Fifth Amendment privilege, a communication
must be testimonial, incriminating, and compelled." Hiibel v. Sixth
14 UNITED STATES v. SWEETS
Judicial Dist. Court, 542 U.S. 177, 189 (2004). The majority
assumes, as do I, that Sweets’s act of producing Long was compelled.
For the reasons mentioned below, I conclude that this act was also
testimonial and incriminating, thus triggering the protections of the
Fifth Amendment.
Sweets’s act of producing Long was testimonial because it "re-
late[d] a factual assertion" and "disclose[d] information" to the police.
Doe v. United States, 487 U.S. 201, 210 (1988); see also United
States v. Hubbell, 530 U.S. 27, 36 n.19 (2000) (stating that "the Fifth
Amendment privilege against self-incrimination applies to acts that
imply assertions of fact"). Specifically, in taking the police to Long’s
hotel room, Sweets revealed that he knew Long and that he knew
where Long was hiding. Cf. United States v. Doe, 465 U.S. 605, 613
(1984) (stating that by producing documents in compliance with a
subpoena, the witness would admit that the papers existed, were in his
possession or control, and were authentic). During the trip to the
hotel, Sweets also admitted that he knew Long had used a different
name to rent the room.
Sweets’s production of Long was also incriminating. A communi-
cation is incriminating for purposes of the Fifth Amendment if it
"could be used in a criminal prosecution or could lead to other evi-
dence that might be so used." Hiibel, 542 U.S. at 190 (quoting Kasti-
gar v. United States, 406 U.S. 441, 445 (1972)). Sweets’s disclosure
of Long’s hotel room was incriminating because it led to the follow-
ing information that was admitted against him at trial: (1) the location
of a member of a drug trafficking conspiracy of which Sweets was a
member, (2) physical evidence of that conspiracy, including drugs,
drug money, and drug paraphernalia, and (3) the location of a place
where Sweets had previously purchased large quantities of drugs.
Judge Niemeyer’s conclusion that Sweets’s production of Long did
not implicate the Fifth Amendment is based on the mistaken belief
that only facially incriminating statements are protected. See ante at
8 ("The fact that Sweets knew Long, a drug conspirator and a murder
suspect," and knew Long’s location, "does not suggest that Sweets
himself was a drug conspirator or a murder suspect."). The protec-
tions of the Fifth Amendment are much broader than Judge Niemeyer
suggests. "It has . . . long been settled that [the Fifth Amendment’s]
UNITED STATES v. SWEETS 15
protection encompasses compelled statements that lead to the discov-
ery of incriminating evidence even though the statements themselves
are not incriminating and are not introduced into evidence." Hubbell,
530 U.S. at 37; accord Kastigar, 406 U.S. at 445 (holding that the
Amendment "protects against any disclosures that could be used in a
criminal prosecution or could lead to other evidence that might be so
used"); Hoffman v. United States, 341 U.S. 479, 486 (1951) (stating
that the privilege extends to statements "which would furnish a link
in the chain of evidence needed to prosecute" the declarant); Hiibel,
542 U.S. at 190 (same); Doe, 487 U.S. at 211 n.10 (stating that the
Fifth Amendment protects compelled disclosure of facts "that might
serve as or lead to incriminating evidence"). Although Sweets’s com-
munication itself was not inculpatory, it led to evidence that directly
implicated him in a drug trafficking conspiracy.
Judge Niemeyer’s statement that Sweets’s communication to the
police was not "substantially incriminat[ing]," ante at 8, is also prob-
lematic because it suggests that a compelled statement is not protected
by the Fifth Amendment unless it is substantially incriminating. This
interpretation is inconsistent with Supreme Court precedent. In Doe
and Marchetti, the cases cited by Judge Niemeyer, the Supreme Court
stated that a witness cannot assert his Fifth Amendment rights unless
the risk of incrimination is substantial and real. Doe, 465 U.S. at 614
n.13 (stating that producing subpoenaed records presented a substan-
tial "risk of incrimination"); Marchetti, 390 U.S. at 54 (holding that
business owner could assert Fifth Amendment in refusing to register
business as engaged in accepting wagers because registration require-
ment posed a real risk of future prosecution). In other words, the like-
lihood, not the degree, of incrimination must be substantial to trigger
the Fifth Amendment protections. There is no support for Judge Nie-
meyer’s assertion that a compelled incriminating statement is not pro-
tected unless it substantially incriminates the speaker.
In sum, the May 2004 interrogation of Sweets implicated the Fifth
Amendment’s protections. The police compelled Sweets to disclose
factual information (Long’s location) by threatening to detain his girl-
friend and her nephew until Sweets cooperated. Sweets’s testimonial
communication was incriminating because it led to evidence that
directly implicated him in a drug trafficking conspiracy.
16 UNITED STATES v. SWEETS
II.
The Fifth Amendment prohibits Sweets’s coerced testimonial com-
munication and its fruits from being admitted against him at trial.* In
United States v. Patane the Supreme Court reaffirmed "that those sub-
jected to coercive police interrogations have an automatic protection
from the use of their involuntary statements (or evidence derived from
their statements) in any subsequent criminal trial." 542 U.S. 630, 640
(2004) (emphasis in original) (quoting Chavez v. Martinez, 538 U.S.
760, 769 (2003)). Because we assume that Sweets’s communication
was coerced, we must apply the traditional fruit of the poisonous tree
analysis to determine whether evidence derived from that communi-
cation (Long’s testimony and the contraband seized at the hotel)
should have been excluded at trial.
*Judge Niemeyer also concludes that Sweets’s Fifth Amendment right
was not violated because "[e]ven though physical evidence and the testi-
mony of a co-conspirator were introduced against him at trial, his own
statements never were." Ante at 11. The question on appeal is not
whether Long’s testimony violated Sweets’s Fifth Amendment right, but
whether it was barred by the exclusionary rule. The exclusionary rule
bars the admission, for most purposes, of evidence acquired in violation
of the Fifth Amendment’s prophylactic rules. These prophylactic rules,
which safeguard a defendant’s privilege against self-incrimination, "nec-
essarily sweep beyond the actual protections of the Self-Incrimination
Clause." United States v. Patane, 542 U.S. 630, 639 (2004). The
Miranda prophylactic (and constitutional) rule, for example, creates a
presumption that unwarned statements made during custodial interroga-
tion are compelled. Oregon v. Elstad, 470 U.S. 298, 307 (1985); see also
Dickerson v. United States, 530 U.S. 428, 444 (2000) (stating that
Miranda is a constitutional rule). "Consequently, unwarned statements
that are otherwise voluntary within the meaning of the Fifth Amendment
must nevertheless be excluded from evidence," thereby providing "a
remedy even to the defendant who has suffered no identifiable constitu-
tional harm." Elstad, 470 U.S. at 307. Thus, it is well-established that the
exclusionary rule "may be triggered even in the absence of a Fifth
Amendment violation." Id. at 306. Judge Niemeyer’s conclusion that
Sweets’s Fifth Amendment right was not violated ignores the prophylac-
tic rule that requires the exclusion of evidence derived from compelled
statements. See Patane, 542 U.S. at 640.
UNITED STATES v. SWEETS 17
I ultimately agree with the majority that Long’s testimony was
properly admitted because it was sufficiently attenuated from
Sweets’s coerced communication. The Supreme Court has recognized
that improper police conduct that leads to the discovery of a witness
"very often will not play any meaningful part in the witness’ willing-
ness to testify." United States v. Ceccolini, 435 U.S. 268, 277 (1978).
Accordingly, in determining whether live-witness testimony is suffi-
ciently attenuated from the initial coercive police interrogation, we
look primarily to the "degree of free will" exercised by the witness
in deciding whether to testify against the defendant. Id. at 276. The
free will inquiry is supplemented by the examination of the following
additional factors: (1) whether the coerced communication was used
in questioning the testifying witness; (2) the time between the coer-
cive interrogation and the initial contact with the witness; (3) whether
the investigators had prior knowledge of the relationship between the
witness and the defendant; and (4) whether the police conducted the
coercive interrogation with the purpose of implicating the defendant.
See United States v. McKinnon, 92 F.3d 244, 247-48 (4th Cir. 1996)
(citing Ceccolini, 435 U.S. at 279-80).
After considering these factors, I believe that Long’s testimony was
sufficiently attenuated from Sweets’s compelled communication.
First, the facts disclosed by Sweets were not used in questioning
Long. Second, although the police located and arrested Long shortly
after Sweets was interrogated, Long’s decision to testify against
Sweets occurred over a year later. Third, the police had prior knowl-
edge of Long and his relationship with Sweets. Fourth, the police did
not commit the coercive interrogation of Sweets with the intent to dis-
cover incriminating evidence against him. In sum, there is no reason
to believe that Long’s decision to testify against Sweets was not the
product of his own free will. His testimony was therefore sufficiently
attenuated from Sweets’s compelled communication and was properly
admitted at trial.
The contraband seized from Long’s hotel room was also derived
from Sweets’s production of Long. Sweets did not object to the
admission of this evidence at trial, but he makes a perfunctory chal-
lenge to its admission on appeal. See Appellant’s Br. at 16 (claiming
generally that "[e]vidence derived from James Sweets’ May 2004
compelled statements should not have been used against Sweets at
18 UNITED STATES v. SWEETS
trial"). Although we have the discretion to correct plain errors not
raised at trial, see Fed. R. Crim. P. 52(b), plain error review is not
appropriate in this instance. See United States v. Young, 470 U.S. 1,
15 (1985) (stating that "the plain-error exception to the
contemporaneous-objection rule is to be ‘used sparingly’"). Because
Sweets did not object to the physical evidence at trial, the government
did not have the opportunity to advocate its admissibility under one
of the exceptions to the exclusionary rule, such as the inevitable dis-
covery doctrine. See Nix v. Williams, 467 U.S. 431 (1984). We are
thus unable to determine whether admission of the evidence was plain
error because the relevant facts were not developed in the district
court. See United States v. Easter, 981 F.2d 1549, 1556 (10th Cir.
1992) (refusing to review for plain error because the defendant failed
to raise a "fact-dependent issue in the court below").
For these reasons, I agree with the majority’s decision to affirm the
district court’s order denying Sweets’s motion to suppress.
GOODWIN, District Judge, concurring in part and concurring in the
result:
I concur in the judgment affirming the district court. I do not join
in part II-B of the majority opinion for two reasons. I would not have
addressed whether Sweets’s Fifth Amendment rights were violated.
First, Sweets’s "testimony" was not used at trial. Second, Long’s tes-
timony was admissible whether or not Sweets’s rights had been vio-
lated. Any possible taint of Long’s testimony had dissipated before he
testified at trial. Further in part II-D, I would have omitted the discus-
sion of the Fifth Amendment.
With that said, I join in Parts I, II-A, II-C (to the extent that I agree
that Mr. Sweets’s testimony was not used against him at trial), the
first paragraph of II-D, III and IV.