### PUBLISHED



# UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT



#  U NITED S TATES OFA MERICA ,

Plaintiff-Appellee,

v. No. 03-4932



# 

E RICKEVINM ASHBURN ,

Defendant-Appellant. 

# 

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro.

William L. Osteen, District Judge.

(CR-03-231)

Argued: February 4, 2005

Decided: April 25, 2005

Before WILKINS, Chief Judge, and KING and DUNCAN, Circuit Judges.

Affirmed by published opinion. Chief Judge Wilkins wrote the opinion, in which Judge King and Judge Duncan joined.

COUNSEL

ARGUED: James B. Craven, III, Durham, North Carolina, for Appellant. Kearns Davis, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Anna Mills Wagoner, United States Attorney, Greensboro, North Carolina, for Appellee.OPINION

WILKINS, Chief Judge:

Eric Kevin Mashburn appeals a decision of the district court denying his motion to suppress statements he made to police following his arrest for conspiracy to distribute, distribution of, and possession with the intent to distribute methamphetamine, see 21 U.S.C.A. §§ 841(a)(1), 846 (West 1999), as well as for possession of a firearm in connection with a drug trafficking offense, see 18 U.S.C.A. § 924(c)(1)(A) (West 2000). Mashburn argues that consideration of his statements by the district court at sentencing violated the Fifth Amendment. Finding no Fifth Amendment violation, we affirm.

I.

Federal agents, acting on information obtained through a controlled narcotics purchase, arrested Mashburn outside his home in Chatham County, North Carolina. When arrested, Mashburn was in possessionof methamphetamine and a firearm. One of the agents placed Mashburn in handcuffs and held him outside his home for 10 to 15 minuteswhile several other agents executed a search warrant inside. Mashburn, still in handcuffs, was then brought into his home and seated on the couch in his living room.

One of the agents told Mashburn that he was facing 10 years in prison for the drug and firearm offenses and that "the only way that [he could] actually help [himself] in a federal system is, number one,by acceptance of responsibility, and number two is substantial assistance." J.A. 48. Mashburn then began to respond to the agents’ questions. After "approximately two to three" questions, id. at 50, the agents realized that Mashburn had not yet been given the required Mirandawarnings, see Miranda v. Arizona , 384 U.S. 436, 479 (1966). **1**

**1** The warnings required by Miranda are that a suspect has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Miranda , 384 U.S. at 479. 2 U NITED S TATES v. M ASHBURNThe agents immediately ceased questioning, and one of the agents retrieved a waiver-of-rights form from a patrol car. The agents informed Mashburn of his Mirandarights, Mashburn signed thewaiver form, and the questioning resumed. To cover the material discussed before the Mirandawarnings were given, the agents asked leading questions to which Mashburn responded "yes" or "no." In hispostwarning statements, Mashburn detailed the extent of his involvement with drug trafficking, including the amounts and sources of his purchases. **2**

Mashburn pleaded guilty to possession with the intent to distribute and distribution of methamphetamine, as well as to possession of a firearm in connection with a drug trafficking offense. He moved to suppress consideration at sentencing of his statements made before and after he was warned of and waived his Mirandarights. After ahearing, the district court denied the motion to suppress and considered the substance of the postwarning statements at sentencing. Mashburn was sentenced to 168 months’ imprisonment. **3**

II.

The Self-Incrimination Clause of the Fifth Amendment ensures that"[n]o person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. With "the advent ofmodern custodial police interrogation" there arose "an increased concern about confessions obtained by coercion" in violation of the guarantee against compelled self-incrimination. Dickerson v. United States , 530 U.S. 428, 434-35 (2000). Recognizing that the pressure and isolation inherent in custodial interrogation could overcome the

**2** The record is unclear as to what exactly Mashburn said before he received his Miranda warnings . Mashburn’s motion to suppress indicates that, before receiving Miranda warnings, he talked about the quantitiesof drugs in which he had been dealing. Special Agent Jeff Brown testified at the suppression hearing that Mashburn "pretty well told us what we wanted to know" before he was given his Miranda warnings. J.A. 49. It is clear from the record, however, that the postwarning statements left none of the prewarning statements uncovered.

**3** Mashburn does not argue that his sentence was imposed in violation of United States v. Booker , 125 S. Ct. 738 (2005). 3

U NITED S TATES v. M ASHBURNresilience of a suspect otherwise not inclined to incriminate himself, the Supreme Court in Miranda"conditioned the admissibility at trial of any custodial confession on warning a suspect of his rights: failure to give the prescribed warnings and obtain a waiver of rights before custodial questioning generally requires exclusion of any statements obtained." Missouri v. Seibert , 124 S. Ct. 2601, 2608 (2004) (plurality opinion). Statements obtained in violation of Mirandaare admissible only in narrow circumstances. See Oregon v. Elstad , 470 U.S. 298, 307 (1985) (holding that statements obtained in violation of Mirandaare irrebuttably presumed involuntary "for purposes of the prosecution’s case in chief"); New York v. Quarles , 467 U.S. 649, 655-57 (1984) (establishing a narrow public-safety exception to Miranda ); Harris v. New York , 401 U.S. 222, 226 (1971) (holding that voluntary statements obtained in violation of Mirandaare admissible on crossexamination for purposes of impeachment).

Because Mashburn’s initial statements preceded the administration and his voluntary waiver of Mirandarights, the parties agree that his initial statements are irrebuttably presumed involuntary. See Elstad

, 470 U.S. at 307. The issue presented here is whether those initial, unwarned statements rendered involuntary the statements Mashburn made after

receiving and waiving Mirandarights. In reviewing the denial of Mashburn’s motion to suppress, we must accept the factual findings of the district court unless clearly erroneous, but we reviewde novo the conclusion of the district court that Mashburn’s postwarning statements were voluntary. See United States v. Braxton , 112 F.3d 777, 781 (4th Cir. 1997) (en banc).

A.

In Elstad , the Supreme Court held that "[a] subsequent administration of Mirandawarnings to a suspect who has given a voluntary butunwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement." Elstad , 470 U.S. at 314. There, police officers questioned Michael Elstad about an alleged burglary without first administering Mirandawarnings. See id. at 301. Seated in his living room, Elstad admitted to the officers that he was present when the burglary occurred. See id. The officers then took Elstad to police headquarters and, approximately one hour later, advised him of his Mirandarights. See id. After knowingly 4 U NITED S TATES v. M ASHBURNand voluntarily waiving those rights, Elstad gave a full confession. See id. At trial, Elstad moved to suppress his confession, arguing that his prior unwarned statement "let the cat out of the bag" and "tainted the subsequent confession as fruit of the poisonous tree." Id. at 302(internal quotation marks omitted). The trial court admitted the confession, but the Oregon Court of Appeals reversed. See id. at 302-03. "Regardless of the absence of actual compulsion," the court of appeals explained, "the coercive impact of the unconstitutionally obtained statement remains, because in a defendant’s mind it has sealed his fate." Id. at 303 (internal quotation marks omitted).

After the Oregon Supreme Court denied further review, the United States Supreme Court granted certiorari and reversed. See id. at 303, 318. The Court first rejected application of the "fruit of the poisonous tree" doctrine—familiar from the Fourth Amendment context, see Taylor v. Alabama , 457 U.S. 687, 694 (1982); Wong Sun v. United States , 371 U.S. 471, 484-86 (1963)—to voluntary, warned statements that come on the heels of unwarned but otherwise voluntary
statements. See Elstad , 470 U.S. at 304-09. Noting the "fundamental differences between the role of the Fourth Amendment exclusionary rule and the function of Mirandain guarding against the prosecutorial use of compelled statements as prohibited by the Fifth Amendment," id. at 304, the Court deemed it

an unwarranted extension of Mirandato hold that a simple failure to administer the warnings, unaccompanied by anyactual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period,

id. at 309. Therefore, the Court ruled that "[t]hough Mirandarequires that the unwarned admission must be suppressed, the admissibility of any subsequent [warned] statement should turn . . . solely on whether it is knowingly and voluntarily made." Id.

The Court then rejected the "cat out of the bag" theory embraced by the state court. See id. at 309-14. The Court first noted that even in extreme cases "in which police forced a full confession from the 5 U NITED S TATES v. M ASHBURNaccused through unconscionable methods of interrogation, the Court has assumed that the coercive effect of the confession could, with time, be dissipated." Id. at 311-12. The Court explained that "the causal connection between any psychological disadvantage created by[an earlier] admission and [the] ultimate decision to cooperate is speculative and attenuated at best." Id. at 313-14. Therefore, the Courtruled that "absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion" as to any subsequent, warned statement. Id. at 314.

B.

Last Term, in Seibert , the Court addressed the admissibility ofstatements obtained through a two-step police protocol: first, intentionally withholding Mirandawarnings from a suspect, questioning the suspect until securing a confession; then obtaining a waiver of Mirandarights from the suspect and covering the same material using leading questions. See Seibert , 124 S. Ct. at 2605-06, 2608-09 (plurality opinion). This tactic, termed "question-first," was designed "to render Mirandawarnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed." Id. at 2610. Deeming it "absurd to think that mere recitation of the litany suffices to satisfy Mirandain every conceivable circumstance," a four-Justice plurality considered it "likely that if the interrogatorsemploy the technique of withholding warnings until after interrogation succeeds in eliciting a confession, the warnings will be ineffective in preparing the suspect for successive interrogation, close in time and similar in content." Id.

The plurality distinguished Elstad , characterizing "the living room conversation" at issue there "as a good-faith Mirandamistake, notonly open to correction by careful warnings before systematic questioning . . ., but posing no threat to warn-first practice generally." Id.at 2612. In the plurality’s view, the admissibility of warned statements that follow on the heels of unwarned statements should depend "on whether Mirandawarnings delivered midstream could be effective enough to accomplish their object," taking into account

the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of 6 U NITED S TATES v. M ASHBURNthe two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.

Id. Applying these factors to the question-first protocol, the plurality concluded that the Mirandawarnings delivered midstream would not have adequately conveyed to the suspect "that she retained a choice about continuing to talk," and the statements obtained thereby were inadmissible. Id. at 2613.

Justice Kennedy, concurring in the judgment, added the fifth vote for suppression. In his view, the plurality’s multi-factor test, whichwould apply to both intentional and unintentional two-stage interrogations, "cut[ ] too broadly." Id. at 2616 (Kennedy, J., concurring in thejudgment). Instead, he believed that "[t]he admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed." Id. Ifso, he explained, "postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made." Id. **4** Because no curative steps had been taken in Seibert , he deemed the postwarning statements inadmissible. See id.

C.

Because none of the opinions in Seibert garnered the votes of five Justices, the parties invite us to examine the individual opinions in both Elstad

and Seibert

(as well as which Justices joined each opinion) to predict how the Court would resolve the issue before us. We are mindful, however, that our duty "is not to predict what the

**4** In Justice Kennedy’s view, such curative measures "should be designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver"—for example, "a substantial break in time and circumstances" between the two statements, or "an additional warning thatexplains the likely inadmissibility of the prewarning custodial statement." Seibert , 124 S. Ct. at 2616 (Kennedy, J., concurring in the judgment). 7

U NITED S TATES v. M ASHBURNSupreme Court might do but rather to follow what it has done." West v. Anne Arundel County , 137 F.3d 752, 757 (4th Cir. 1998). "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Courtmay be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." Marks v. United States , 430 U.S. 188, 193 (1977) (internal quotation marks omitted).

In Seibert , Justice Kennedy concurred in the judgment of the Court on the narrowest grounds. Unlike the plurality opinion which announced a multi-factor test that would apply to both intentional and unintentional two-stage interrogations

, see Seibert , 124 S. Ct. at 2612 (plurality opinion), Justice Kennedy’s concurring opinion set forth "a narrower test applicable only in the infrequent case . . . in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning," id. at 2616 (Kennedy, J., concurring in the judgment). Justice Kennedy’s opinion therefore represents the holding of the Seibert Court: The admissibility of postwarning statements is governed by Elstad unless the deliberate "question-first" strategy is employed. **5** See id. If that strategy is deliberately employed,postwarning statements related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statements are made. See id. ; accord United States v. Stewart , 388 F.3d 1079, 1086, 1090 (7th Cir. 2004) (holding that, under Marks , Justice Kennedy’s opinion provided the applicable rule); Reinert v. Larkins , 379 F.3d 76, 91 (3d Cir. 2004) (holding that Seibert did not apply because the failure to give Mirandawarnings"seem[ed] much more likely to have been a simple failure to administer the warnings rather than an intentional withholding that was part of a larger, nefarious plot"). But cf. United States v. Fellers , 397 F.3d 1090, 1098 (8th Cir. 2005) (applying the plurality’s test but finding both the plurality’s and Justice Kennedy’s tests satisfied).

**5** Because Mashburn conceded that the question-first strategy was not deliberately employed by the agents here, we need not reach the issue ofwhich party bears the burden of proving whether the strategy was deliberately employed. 8 U NITED S TATES v. M ASHBURND.

Here, the district court found no evidence that the agents’ failure to convey Mirandawarnings to Mashburn was deliberate or intentional. See J.A. 85 ("[T]he Court finds no intent in this case on the part of [Agent] Brown."); id. ("The Court can’t find . . . any intent to do wrong."); id. at 86 ("I do not find it in this case, that it was inappropriate conduct."). Therefore, the admissibility of Mashburn’s statements is governed by Elstad

.

Elstadinstructs that "absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect hasmade an unwarned admission does not warrant a presumption of compulsion" as to any subsequent, postwarning statement. Elstad , 470U.S. at 314. Rather, "[t]he relevant inquiry is whether, in fact, the second statement was also voluntarily made." Id. at 318.

Mashburn concedes that his second, postwarning statement "was certainly voluntary." Appellant’s Br. at 17. He argues, however, thatthe agents obtained his initial, prewarning statement using the deliberately coercive or improper tactics alluded to in Elstad

. See Elstad , 470 U.S. at 314. Specifically, he contends that his initial statement was "the product of an implied threat/promise," Appellant’s Br. at 18,because the "agents sat [him] down and told him he was in very serious trouble, looking at five years for the gun on top of five years for the methamphetamine," id. at 14, and that the "only way that [he could] actually help [himself] in a federal system is, number one, byacceptance of responsibility, and number two is substantial assistance," J.A. 48. We reject this contention.

"[G]overnment agents may validly make some representations to a defendant or may discuss cooperation without rendering the resulting confession involuntary." United States v. Shears , 762 F.2d 397, 401 (4th Cir. 1985). Here, the agents made no specific promises of leniency in exchange for Mashburn’s statement. See id. at 402 & n.5 (discussing circumstances under which specific promises, if not kept, could render a statement involuntary). Rather, the agents simply informed Mashburn of the gravity of his suspected offenses and the benefits of cooperation under the federal system. Cf. United States v. Pelton , 835 F.2d 1067, 1073 (4th Cir. 1987) ("General encouragement 9 U NITED S TATES v. M ASHBURNto cooperate is far different from specific promises of leniency."). Any coercion that Mashburn may have felt was not the product of official action, but rather the consequence of the severity of the offenses he chose to commit. See Elstad , 470 U.S. at 304-05 (explaining that the Fifth Amendment is not "concerned with moral and psychological pressures to confess emanating from sources other than official coercion"). We hold that Mashburn’s postwarning statements were voluntary and properly considered by the district court.

III.

For the reasons stated above, we affirm the decision of the district
court.

AFFIRMED 10 U NITED S TATES v. M ASHBURN