PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4932

ERIC KEVIN MASHBURN,

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 possession

of methamphetamine and a firearm. One of the agents placed Mashburn in handcuffs and held him outside his home for 10 to 15 minutes

while 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

Miranda warnings, see Miranda v. Arizona, 384 U.S. 436, 479 (1966).1

1The 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 UNITED STATES v. MASHBURN
The 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 Miranda rights, Mashburn signed the

waiver form, and the questioning resumed. To cover the material discussed before the Miranda warnings were given, the agents asked

leading questions to which Mashburn responded "yes" or "no." In his

postwarning 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 Miranda rights. After a

hearing, 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 of

modern 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

2The 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 quantities

of 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. 

3Mashburn does not argue that his sentence was imposed in violation

of United States v. Booker, 125 S. Ct. 738 (2005). 

UNITED STATES v. MASHBURN 3
resilience 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 Miranda are admissible

only in narrow circumstances. See Oregon v. Elstad, 470 U.S. 298,

307 (1985) (holding that statements obtained in violation of Miranda

are 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 Miranda are admissible on crossexamination for purposes of impeachment). 

Because Mashburn’s initial statements preceded the administration

and his voluntary waiver of Miranda rights, 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 Miranda rights. 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 review

de 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 Miranda warnings to a suspect who has given a voluntary but

unwarned 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 Miranda warnings.

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 Miranda rights. See id. After knowingly

4 UNITED STATES v. MASHBURN
and 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 Miranda in 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 Miranda to hold that a simple

failure to administer the warnings, unaccompanied by any

actual 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 Miranda requires

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

UNITED STATES v. MASHBURN 5
accused 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 Court

ruled 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 of

statements obtained through a two-step police protocol: first, intentionally withholding Miranda warnings from a suspect, questioning

the suspect until securing a confession; then obtaining a waiver of

Miranda rights 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 Miranda warnings 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 Miranda in every conceivable circumstance,"

a four-Justice plurality considered it "likely that if the interrogators

employ 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 Miranda mistake, not

only 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 Miranda warnings 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 UNITED STATES v. MASHBURN
the 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 Miranda warnings 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, which

would apply to both intentional and unintentional two-stage interrogations, "cut[ ] too broadly." Id. at 2616 (Kennedy, J., concurring in the

judgment). 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. If

so, 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 that

explains the likely inadmissibility of the prewarning custodial statement." Seibert, 124 S. Ct. at 2616 (Kennedy, J., concurring in the judgment). 

UNITED STATES v. MASHBURN 7
Supreme 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 Court

may 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.5See 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 Miranda warnings

"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).

5Because Mashburn conceded that the question-first strategy was not

deliberately employed by the agents here, we need not reach the issue of

which party bears the burden of proving whether the strategy was deliberately employed. 

8 UNITED STATES v. MASHBURN
D.

Here, the district court found no evidence that the agents’ failure

to convey Miranda warnings 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. 

Elstad instructs 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, postwarning statement. Elstad, 470

U.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, that

the 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, by

acceptance 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

UNITED STATES v. MASHBURN 9
to 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 UNITED STATES v. MASHBURN