In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3726

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROHAN G. HERON,

Defendant-Appellant.

Appeal from the United States District Court 

for the Southern District of Illinois.

No. 06-30068-WDS—William D. Stiehl, Judge.

ARGUED OCTOBER 31, 2008—DECIDED MAY 5, 2009

Before FLAUM, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge. In May of 2006, Rohan Heron

decided to ride shotgun with his friend Gigiman

Hamilton on a cross-country road trip. It is unclear

whether Heron initially knew that this trip was for the

purpose of trafficking drugs. A confidential informant did

know, however, and tipped off the Drug Enforcement

Administration (“DEA”). The DEA, in turn, let the

Caseyville Police Department know that a semi-tractor

trailer carrying a shipment of marijuana and possibly
2 No. 07-3726

cocaine would be arriving in St. Clair County, Illinois.

Based on this information, Officer Greg Hosp stopped

Hamilton’s vehicle. After a dog alerted to the presence

of drugs, Hosp and the K-9 unit officer searched the

truck, discovered marijuana and cocaine, and arrested

Hamilton and Heron.

Heron was charged with possession with the intent to

distribute five or more kilograms of cocaine and possession

with intent to distribute 100 or more kilograms of marijuana, both in violation of 21 U.S.C. § 841(a)(1). He was

convicted and sentenced to 120 months’ imprisonment.

Before trial, he filed a motion to suppress statements he

had made, but his motion was denied in part. During trial,

he made a motion for a continuance, which was also

denied. He now appeals, asserting that the court’s denial

of his motion for a continuance was both an abuse of

discretion and a violation of his constitutional rights to

due process and effective assistance of counsel. We

agree with Heron that it was an abuse of discretion to

deny the motion for a continuance. We therefore

reverse and remand for further proceedings.

I

Hosp stopped Hamilton’s vehicle at 1:30 a.m. on May 10,

2006, and Hamilton’s and Heron’s arrests followed

shortly thereafter. Hamilton was given Miranda warnings

and interrogated the next day. According to the DEA-6

Report of Investigation for this interview, Hamilton

stated that he had asked “his friend, Rohan HERON, to

drive with him to California in order to help him drive
No. 07-3726 3

back.” Hamilton did not allude to any other trips the two

might have taken. On November 13, 2006, Hamilton gave

an additional statement, with counsel present, which

was memorialized in another DEA-6 Report. At this

meeting, Hamilton stated that Heron “was only involved

in the transportation of marihuana on the occasion in

which they were arrested in Illinois” and that “at first,

HERON did not want to participate in the transportation.”

Hamilton added, however, that Heron “agreed to assist

in the transportation of the marihuana for $20,000,”

which was half of the payment for the entire shipment.

On June 11, 2007, the day before Heron’s trial, Hamilton

changed his story. He informed the government that he

now intended to testify that Heron had been involved

in two prior drug trips as well. At 6:00 that evening—that

is, as soon as it could—the government informed defense

counsel of this change in testimony. The next morning,

defense counsel made an oral motion “to compel the

government to generate a DEA-6,” or, in the alternative, to

“compel Mr. Hamilton to discuss with me the testimony

that he has already discussed with the government.” The

court ordered the government to make Hamilton available but refused to compel him to speak to defense

counsel. Defense counsel then moved for a continuance

to investigate the new testimony. The government did not

oppose the motion, but the district court denied it, commenting only that it was 9:30 in the morning of trial

and that despite the court’s sympathy “to the immediacy

of the events that prompted your Motion at this time,” the

trial would not be continued. The court offered no

further explanation of its ruling.
4 No. 07-3726

Heron had been interrogated on May 10 at 4 a.m. by

Special Agent Scott and Task Force Officer Wade

Gummersheimer. The government says that this

meeting was conducted at Heron’s request and that

someone at the Fairview Heights Police Department

conveyed the request to Gummersheimer. Heron asserts

that there is insufficient evidence in the record to support that contention, as Gummersheimer did not testify

at the suppression hearing, and the person who allegedly

made the phone call was never identified. The critical

point, however, is undisputed: Heron was not given

Miranda warnings at this interview. The DEA-6 Report

for this meeting notes that Heron maintained that it was

only in Phoenix, Arizona, that he became aware that he

and Hamilton were driving bags full of marijuana

across the country. Thirty-two hours later on May 11,

Scott and Special Agent Rehg began another interrogation

of Heron at the Fairview Heights Police Department,

except this time they did administer Miranda warnings.

During the second session, Heron said essentially the

same thing as he had at the May 10 session.

Heron filed a motion to suppress his statements from

both the May 10 and May 11 interrogations. The district

court ruled that the May 10 statements had to be suppressed, but that the May 11 statements could be admitted.

II

We begin with Heron’s assertion that the district court

erred when it refused to grant a continuance after Hamilton changed his testimony at the eleventh hour. Heron
No. 07-3726 5

argues that the court’s refusal to do so was both an abuse

of discretion and a constitutional violation. We need not

reach the constitutional argument unless we conclude

that the district court did not abuse its discretion (the

relevant standard of review) when it acted. United States v.

Vincent, 416 F.3d 593, 598 (7th Cir. 2005). This court has

identified several factors that a district court should

consider in deciding whether to grant such a motion:

1) the amount of time available for preparation; 2) the

likelihood of prejudice from denial of the continuance;

3) the defendant’s role in shortening the effective

preparation time; 4) the degree of complexity of the

case; 5) the availability of discovery from the prosecution; 6) the likelihood a continuance would have

satisfied the movant’s needs; and 7) the inconvenience

and burden to the district court and its pending

case load.

Id. In Heron’s case, most of these points weigh in favor

of granting a continuance, some strongly so. Defense

counsel had no time, as a practical matter, to prepare

for the dramatic change in Hamilton’s testimony, as he

received notice only fifteen hours before the trial was to

begin (Factor 1). While defense counsel was able to impeach Hamilton’s revised story, the new account was

more than enough to cast Heron in the jury’s eyes as an

active participant in the drug trip. Hamilton’s previous

statements had portrayed Heron as a reluctant participant

who was coaxed into continuing the drug trip with

offers of money. The change in testimony thus created a

likelihood of prejudice (Factor 2). Heron did not play any
6 No. 07-3726

role in creating the time pressure (Factor 3). The presence

of the new testimony added some complexity to the case,

as the alleged previous trips would require further investigation (Factor 4). Finally, although defense counsel

initially wondered whether Hamilton would testify with

enough specificity about the timing of the trips to allow

further investigation, Hamilton did in fact testify that the

first prior trip was “[s]hortly after February” of 2006 and

that the second prior trip was “[s]hortly after that. I think

about a month or so.” This narrowed the date range for

the earlier trips and would have provided an adequate

starting point for the investigation into trucking records,

receipts, and cell phone records that Heron wished to

conduct (Factor 6).

Only two factors weighed against granting a continuance. First, the government provided all information

that was available to it immediately after Hamilton

changed his testimony, even though it did not formally

create a DEA-6 Report (Factor 5). In addition, delaying

the trial may have been an inconvenience and a burden

to the district court, even though the judge did not

mention any special circumstances beyond the fact that

the motion was being made at 9:30 a.m. on the morning

of trial (Factor 7). While it is true that the court is entitled

to adhere to the date it sets for trial, it “cannot have a

myopic insistence upon expeditiousness in the face of a

justifiable reason for delay.” United States v. Jones, 455

F.3d 800, 804-05 (7th Cir. 2006) (internal quotation

marks omitted).

Hamilton’s changed testimony was a crucial piece of

evidence that defense counsel should have had an oppor-
No. 07-3726 7

tunity to develop. We hold that the district court abused

its discretion in denying the motion for a continuance.

III

While our conclusion with respect to the continuance

is enough to require a remand, we address Heron’s suppression arguments as well, since this issue will inevitably

arise again in the proceedings below. Heron argues that

his May 11 statements should have been suppressed

pursuant to Miranda v. Arizona, 384 U.S. 436 (1966) and

Missouri v. Seibert, 542 U.S. 600 (2004). In reviewing a

district court’s ruling on a motion to suppress, this court

reviews conclusions of law de novo and factual determinations for clear error. United States v. Figueroa-Espana,

511 F.3d 696, 701 (7th Cir. 2007).

Calling it a “close call,” the district court suppressed

the May 10 statements because “the officers should have

given the defendant his Miranda warnings before

engaging in a conversation with him.” With regard to the

May 11 statements, the court applied the test set forth in

Justice Kennedy’s concurring opinion in Seibert. This test

requires that the court suppress statements that are a

product of a “two-step interrogation technique [that is]

used in a calculated way to undermine the Miranda warning.” Seibert, 542 U.S. at 622. Importantly, “[t]he admissibility of postwarning statements should continue to be

governed by the principles of [Oregon v. Elstad, 470 U.S.

298 (1985)] unless the deliberate two-step strategy was

employed.” Id. The district court found no intent on the
8 No. 07-3726

part of the DEA agents to engage in a two-step interrogation in an effort to evade the dictates of Miranda. It therefore analyzed the interrogations under Elstad and found

that the statements were given voluntarily after Miranda

warnings had been administered.

No single opinion in Seibert spoke for the Court; we

thus must strive to discern what exactly the decision

requires. Marks v. United States, 430 U.S. 188, 193 (1977)

provides the general rule for dealing with this kind of

outcome: “When a fragmented Court decides a case and

no single rationale explaining the result enjoys the

assent of five Justices, the holding of the Court may be

viewed as that position taken by those Members who

concurred in the judgments on the narrowest grounds”

(internal quotation marks omitted). When, however, a

concurrence that provides the fifth vote necessary to

reach a majority does not provide a “common denominator” for the judgment, the Marks rule does not help to

resolve the ultimate question. See Schindler v. Clerk of the

Circuit Court, 715 F.2d 341, 345 (7th Cir. 1983) (declining to

apply the Marks rule to Baldasar v. Illinois, 446 U.S. 222

(1980)). See also United States v. Carrizales-Toledo, 454 F.3d

1142, 1150 (10th Cir. 2006) (“When the plurality and

concurring opinions take distinct approaches, and

there is no narrowest opinion representing the common

denominator of the Court’s reasoning, then Marks becomes problematic. We do not apply Marks when the

various opinions supporting the Court’s decision are

mutually exclusive.”) (citations omitted) (internal quotation marks omitted); A. T. Massey Coal Co. v. Massanari, 305

F.3d 226, 237 (4th Cir. 2002) (because it found “no theoreti-
No. 07-3726 9

cal overlap between the rationales employed by the

plurality and Justice Kennedy” in Eastern Enterprises v.

Apfel, 524 U.S. 498 (1998), the court did not consider

Justice Kennedy’s reasoning to be a narrower ground or

controlling); King v. Palmer, 950 F.2d 771, 781 (D.C. Cir.

1991) (en banc) (“But Marks is workable—one opinion can

be meaningfully regarded as ‘narrower’ than another—only when one opinion is a logical subset of

other, broader opinions. In essence, the narrowest opinion must represent a common denominator of the

Court’s reasoning; it must embody a position implicitly

approved by at least five Justices who support the judgment.”).

Applying that guidance, we conclude that the Marks rule

is not applicable to Seibert. Although Justice Kennedy

provided the crucial fifth vote for the majority, we find

it a strain at best to view his concurrence taken as a

whole as the narrowest ground on which a majority of the

Court could agree. It is true that parts of his reasoning

could be construed as a narrower ground than the one

described in Justice Souter’s plurality opinion, in that

Justice Kennedy would carve out a smaller exception to

Elstad. On the other hand, Justice Kennedy’s intent-based

test was rejected by both the plurality opinion and the

dissent in Seibert. Id. at 611-12 (“The threshold issue

when interrogators question first and warn later is thus

whether it would be reasonable to find that in these

circumstances the warnings could function effectively as

Miranda requires.”) (Souter, J., plurality opinion) (internal

quotation marks omitted); id. at 624 (“The plurality’s

rejection of an intent-based test is also, in my view, cor-
10 No. 07-3726

rect.”) (O’Connor, J., dissenting). Although it is hard to

be sure, it is possible that Justice Breyer agreed with

Justice Kennedy’s focus on intent. Id. at 618 (“I also

agree with Justice Kennedy’s opinion insofar as it is

consistent with [the fruits] approach and makes clear

that a good-faith exception applies.”). Counting Justice

Breyer in the Kennedy camp, we are left with only two

Justices who support the intent-based test. This is obviously not the “common denominator” that Marks was

talking about.

In a situation like this, it is risky to assume that the

Court has announced any particular rule of law, since

the plurality and dissent approaches garnered only four

votes each. See United States v. Alcan Aluminum Corp., 315

F.3d 179, 189 (2d Cir. 2003) (“When it is not possible to

discover a single standard that legitimately constitutes

the narrowest ground for a decision on that issue, there

is then no law of the land because no one standard commands the support of a majority of the Supreme Court.”);

Anker Energy Corp. v. Consolidation Coal Co., 177 F.3d 161,

170 (3d Cir. 1999) (“[I]n cases where approaches differ,

no particular standard is binding on an inferior court

because none has received the support of a majority of the

Supreme Court.”). In the case of Seibert, the only thing

we know for sure is that at least seven members of the

Court rejected an intent-based approach and accepted

some kind of exception to Elstad, even if the scope of that

exception remains unclear. See United States v. RodriguezPreciado, 399 F.3d 1118, 1141 (9th Cir. 2005) (Berzon, J.,

dissenting).
No. 07-3726 11

Under these circumstances, we must continue to work

with the authoritative sources that remain available to

us. Up until now, we have not yet settled on a definitive

approach toward the problem addressed in Seibert. Our

first analysis of that decision in United States v. Stewart, 388

F.3d 1079 (7th Cir. 2004), produced a set of tentative

statements. We said that

at least as to deliberate two-step interrogations in

which Miranda warnings are intentionally withheld

until after the suspect confesses, the central voluntariness inquiry of Elstad has been replaced by a presumptive rule of exclusion, subject to a multifactor test

for change in time, place, and circumstances from

the first statement to the second.

Id. at 1090 (first emphasis added). We also expressed the

opinion that “Elstad appears to have survived Seibert.”

Id. (emphasis added). In a later case, United States v.

Peterson, 414 F.3d 825 (7th Cir. 2005), we did not reach

the question how Seibert would apply, but we observed

that the intent-based test was shared by only Justices

Kennedy and Breyer. Id. at 828. We then delved into the

rationale of Seibert:

The thinking behind this is that a suspect who has been

induced to make a statement may see little point in

clamming up after warnings have been given; he

may think that the cat is out of the bag. Moreover,

eliciting a statement before the suspect has been

informed of his rights implies that the warnings and

rights are charades, which reduces the chance that

the suspect will invoke his constitutional privilege.
12 No. 07-3726

Id. This reasoning appears to be defendant-focused. If that

is so, then it may be in some tension with our decision

in Stewart and Justice Kennedy’s intent-based test, as the

latter converts Miranda’s focus from a concern with the

defendant’s knowledge of her own rights into what

looks more like a rule designed to curb abuse by the police.

We have no need here to resolve once and for all what

rule or rules governing two-step interrogations can be

distilled from Seibert. This is because Heron’s May 11

statements would be admissible under any test one

might extract. We agree with the district court that those

statements would be admissible under Justice Kennedy’s

intent-based test. The district court found as a fact that

there was “no evidence that the officers, during the defendant’s first statement, had any intent or strategy to

deliberately withhold Miranda warnings in an attempt

to get the defendant to confess.” In all likelihood, the

court was relying on Scott’s testimony that Heron had

requested the meeting with the officers and that Scott

and Rehg assumed that Heron had already been given

Miranda warnings.

Heron argues that the court’s finding was clearly erroneous. He points out that Scott testified that she had

been with the DEA for nine-and-a-half years, and he

argues that the court could have inferred impermissible

intent directly from the fact that she failed to take the

precaution of administering Miranda warnings before

talking to Heron on May 10.

While this may have been a possible inference, the

district court was not compelled to make it. We cannot
No. 07-3726 13

find that the court committed clear error in crediting

Scott’s testimony that her lack of precaution was an

honest mistake. The court was entitled to conclude that

it was reasonable for her to assume that Heron would

have been given Miranda warnings upon arrest. There is

also a question whether the May 10 meeting was called

in response to Heron’s request, or if instead someone

from the Fairview Heights Police Department requested

the meeting. We decline to engage in speculation about

whether the police or Heron initiated the meeting, because nothing turns on it. Law enforcement cannot be

expected to keep track of the identity of every person

who makes a phone call on behalf of another police

department.

We also see no reason to disturb the district court’s

conclusion that Heron gave the May 11 statement voluntarily. As it notes, “[i]t is clear that Agent Rehg gave the

defendant his Miranda warnings before he questioned

him, and that the defendant appeared to understand

those warnings, but chose to waive his rights and gave

his statement to Agent Rehg.” Heron notes that Rehg

did not obtain a written Miranda waiver, but this alone

does not make Heron’s statement involuntary. Because

the May 11 statements were given voluntarily, they

would be admissible under the interpretation of Elstad

favored by the Seibert dissenters as well.

Finally, Heron’s statements would be admissible under

the approach of the Seibert plurality. For them, the

central inquiry is whether, given the totality of the circumstances, the midstream Miranda warnings were
14 No. 07-3726

effective. The district court must weigh several factors

in determining effectiveness:

[1] the completeness and detail of the questions and

answers in the first round of interrogation, [2] the

overlapping content of the two statements, [3] the

timing and setting of the first and the second, [4] the

continuity of police personnel, and [5] the degree to

which the interrogator’s questions treated the

second round as continuous with the first.

Seibert, 542 U.S. at 615. We acknowledge that some of

these (unweighted) factors suggest that the court should

have excluded Heron’s May 11 statements. There was

sufficient overlap between the May 10 and May 11 statements (and likely the questions that elicited the statements) such that the officers involved did not think it

necessary to produce another DEA-6 Report for the

second interrogation (Factors 1, 2, & 5). The interrogations

also occurred in the same location, the Fairview Heights

Police Department (Factor 3). There was some but not

complete continuity of police personnel—Scott was

present at both interrogations (Factor 4).

The remaining factor supports admissibility. Thirty-two

hours elapsed between the first interrogation and the

second (Factor 3). This contrasts with the 20-minute

break in Seibert. Id. at 605. While this is a close case,

nothing in the Seibert plurality opinion condemns us to a

mechanical counting of items on a list. We must instead

examine each one of them for the light it throws on the

central inquiry: whether the later Miranda warnings

were effective. Here, the lengthy temporal separation
No. 07-3726 15

between Heron’s first and second encounters persuades

us that the district court did not err when it found that the

later warnings served their intended purpose. The May 11

statements thus would be admissible under the

Seibert plurality’s approach. Any way we look at the

problem, in summary, we conclude that the district

court correctly concluded that Heron’s May 11 statements were admissible. They may therefore be used in

any further proceedings conducted by the district court.

* * *

For these reasons, we REVERSE the court’s judgment of

conviction and REMAND for further proceedings consistent with this opinion.

5-5-09