Using a Deadly Weapon to Cause Bodily Harm Involves, at the Least, the Threatened Use of Physical Force

United States v. Velasco, No. 05-10451 (5th Cir. Sept. 26, 2006) (King, Garwood, Jolly)

Another case involving the application of the 16-level "crime of violence" enhancement under U.S.S.G. §2L1.2(b)(1)(A)(ii). In this case, the defendant had a prior Illinois conviction for aggravated battery. There are a number of different ways to commit that offense, so the opinion spends a good deal of time nailing down exactly which portion of the Illinois statute underlay the conviction.

Ultimately, the court determines that Velasco had been convicted under 720 Ill. Comp. Stat. 5/12-4(b)(1), which "provides that '[i]n committing a battery, a person commits aggravated battery if he or she: (1) uses a deadly weapon other than by the discharge of a firearm." Slip op at 11. Sounds an awful lot like generic aggravated assault, at least as construed in United States v. Torres-Diaz, 438 F.3d 529 (5th Cir. 2006). And the court agrees, in lengthy footnote 3 that concludes: "the comparison [between 5/12-4(b)(1) and Model Penal Code § 211.1(2)] reveals that the two definitions are identical in regard to the required elements of mens rea, causation of bodily harm, and use of a deadly weapon."

However, the court did not resolve the case on that basis, apparently because 1) the district court had concluded that the Illinois offense has an element of physical force, and 2) the Government didn't argue that Velasco's prior offense constituted an enumerated offense. Instead, the court held that 5/12-4(b)(1) qualifes as a crime of violence under the force-element prong of the 16-level COV defintion. Here's the analysis:

There is only one means of conviction under § 12-4(b)(1), which is to prove that the defendant actually “used” a deadly weapon. Under Illinois law, a deadly weapon is “an instrument that is used or may be used for the purpose of an offense and is capable of producing death.” Illinois v. Blanks, 845 N.E.2d 1, 12 (Ill. App. Ct. 2005). Accordingly, in order to convict a [sic] Velasco of aggravated battery under § 12-4(b)(1), the government was required to prove that Velasco “used” a deadly weapon for the purpose of the offense of battery, which in this case, was to cause bodily harm.

We conclude that § 12-4(b)(1) does indeed require proof of the element of the use of physical force against the person of another. In making this determination we note that it is critical that the statute requires the actual “use” of the weapon to commit the offense. In United States v. Diaz-Diaz, we held that a criminal offense involving the mere possession of a deadly weapon is not a “crime of violence” because the offense required nothing more than actually carrying a weapon. 327 F.3d 410, 414 (5th Cir. 2003) (holding that the crime of “knowing possession” of a short-barrel shotgun was complete without the use of any physical force against the person or the property of another). We distinguish, however, the “use” of a deadly weapon from mere possession in regard to the relationship between the “use” of a weapon and physical force. In order to “use” a weapon to cause bodily harm, one must, at the very least, threaten the use of physical force.

Slip op. at 10-12 (emphasis added).

Long-time COV watchers will ask, "Wait a minute, hasn't the Fifth Circuit held at least twice in unpublished opinions that Illinois aggravated battery isn't a crime of violence?" Yes. Well, sort-of. Velasco declined to follow those cases because "[i]n both cases the records on appeal did not contain the indictments for the Illinois convictions and the court was unable to discern under which of the disjunctive statutory elements the defendants were charged and convicted." Slip op. at 9.

For what it's worth, I think the court's holding is at least debatable. There are conceivably ways in which a person could use a deadly weapon to cause bodily injury without actually using, attempting to use, or threatening to use physical force. Rigging a spring-gun that will discharge when someone opens a door, for example. If someone opens the door and gets shot, then perpetrator has used force in a physics or engineering sense (the force required to engineer the trap), but that's not the type of violent physical force necessary for purposes of the crime-of-violence definition.

Circuit Split Regarding North Carolina Indecent Liberties Statute and "Sexual Abuse of a Minor"

As you'll recall, the Fifth Circuit held in United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. 2005), that the North Carolina offense of taking indecent liberties with a child is "sexual abuse of a minor" for purposes of the 16-level crime of violence enhancement in U.S.S.G. §2L1.2(b)(1)(A)(ii). The court refused to recognize that the North Carolina statute is extremely broad and that it encompasses some conduct that presents no risk of physical or psychological harm to the child. Recall also that Izaguirre-Flores eschewed a categorical approach to the issue in favor of what it termed a "common-sense" approach.

Well, the Ninth Circuit has now held to the contrary. In United States v. Baza-Martinez, No. 05-10282 (9th Cir. Sept. 26, 2006), the court recognized the breadth of the North Carolina statute and held that it does not categorically constitute sexual abuse of a minor due to the statute's focus on the perpetrator's motive rather than his conduct. Here's Baza-Martinez's take on Izaguirre-Flores:

The Fifth Circuit in Izaguirre-Flores took an unusual approach to its analysis. Rather than conducting a Taylor analysis, it stated that it preferred a “common sense” approach. 405 F.3d at 275. It conceded that “[i]n similar cases, when we have been called on to determine whether a violation of a state statute constitutes a specifically enumerated offense under Application Note (1)(B)(iii) [U.S.S.G. §2L1.2(b)(1)(A)(ii)], we have held that when the enumerated offense under the Guidelines encompasses a narrower range of conduct than that prohibited by the state statute, we cannot hold as a matter of law that the sentencing enhancement is proper.” Id. at 276-77. Then following its “common sense” approach, however, the court said it refused to read the statute as criminalizing acts that did not involve “overt sexual acts,” eliminating other conduct that would be included were the statute broadly though literally read. Id. at 277. Like the Bahar court, it focused on the statutory language “for the purpose of arousing or gratifying sexual desire” rather than the harm to the minor. Id. We fault its reasoning both for reading out of the statute some acts that the statute clearly includes and focusing on the wrong issue. We reiterate that whether sexual abuse of a minor is an element of all crimes prohibited by the statute is the key consideration.

Note that Baza-Martinez also conflicts with the view of the Eleventh Circuit (the Bahar case the quoted paragraph refers to).

(Hat tip: Ninth Circuit Blog)

Tip for Searching this Blog

Trying to find a post that's dropped off the front page? This blog doesn't have a search function, but you can easily find what you're looking for by running a Google search. Just type "fifth circuit blog" in quotation marks into the search box, as well as the other search terms for the post you're trying to find.

Circumstances, but not Results, of Polygraph Exam Admissible to Rebut Defendant's Claim of Coerced Confession

United States v. Allard, No. 05-20087 (5th Cir. Sept. 11, 2006) (Garwood, King, Jolly)

When is a polygraph exam admissible? When the circumstances surrounding the exam are offered to rebut a defendant's claim that her confession was coerced.

Here's the court's summary of the facts:

Linda Gay Allard contacted her local Wal-Mart store in 2003, complaining that her husband found straight pins in Hillshire Farms summer sausage she had purchased from the store. In addition to contacting Wal-Mart, Allard filed a complaint with the U.S.D.A.’s Food Safety Inspection Service. The U.S.D.A. joined with the United States Secret Service and conducted an investigation of Allard’s claim. As a part of the investigation, Secret Service Agent William Wind conducted a polygraph examination with respect to both Allard and her husband. At the conclusion of Allard’s polygraph exam, Agent Wind informed Allard that the results indicated she had not been truthful. Allard then gave the following written confession: “I put the pins in the sausage before I left for work on Thursday, December 4, at 3 p.m. I was hoping to get money from Hillshire Farms. I got the pins from the sewing box.” Allard told Agent Wind that she and her husband had nearly $60,000 in consumer debt that they were struggling to repay.

Slip op. at 2.

The Government charged Allard with "one count of making a false claim of consumer product tampering in violation of 18 U.S.C. § 1365(c)(1)." At trial, the Government initially persuaded the court to exclude any evidence of the polygraph exam.

The Government reversed course, however, after Allard testified that "Agent Wind told her she could not leave until she wrote what he told her to write in her statement; that Agent Wind threatened her by stating that he could take her farm and arrest her at work; that Agent Wind refused to honor her request for an attorney; that Agent Wind pushed her, shoved her, and told her to sit down and shut up; and that Agent Wind said he could make her children disappear." Slip op. at 3-4. The Government then asked the court to admit the polygraph exam, arguing that "the test was relevant to the progression of events preceding the confession and to the fact that her failure of the polygraph test lent credence to Agent Wind’s testimony that he judged her to be deceptive." Id. at 4.

The district court refused to allow the Government to introduce the results of the polygraph test, but it did allow the Government to cross-examine Allard regarding the circumstances surrounding the test. The Government also called Agent Wind as a rebuttal witness. The court instructed the jury that it could consider the circumstances of the test only for the purpose of determining whether Allard's confession was voluntary.

On appeal, Allard argued that admission of Agent Wind's testimony and the circumstances of her polygraph exam violated Fed. R. Evid. 403 and 702. The court of appeals rejected both arguments.

The court held that Agent Wind's testimony did not run afoul of Rule 702 because

The government did not proffer Agent Wind as an expert. Neither did Agent Wind claim to offer, or actually provide, technical, scientific, or expert testimony. Instead, Agent Wind was called in rebuttal to provide his account of the facts and circumstances surrounding Allard’s confession, in an attempt to counter Allard’s allegations that her confession was coerced.

Slip op. at 6. Furthermore, "the district court instructed the jury that it should consider any polygraph evidence only to determine the credibility of the witnesses and not as scientific evidence . . . ." Id. at 9.

The court also found no clear abuse of discretion in the district court's admission of the evidence regarding the polygraph exam:

Where a defendant, such as Allard, chooses to contest before the jury the voluntariness of her confession, it is only fair to permit the government, in response, to set the scene of that confession. It is significant, of course, that here the district court specifically instructed the jury that testimony relating to the polygraph was not scientific, that its results were irrelevant to the ultimate issue of truthfulness, and that the evidence was only to be considered in determining whether Allard’s confession was voluntary. See supra, n.3. Given these circumstances, Allard has failed to establish that the district court abused its discretion under Rule 403 in admitting testimony relating to her polygraph examination.

Slip op. at 12.

(The court also held that the district court did not err in giving a modified Allen charge that was "substantively the same as the charge found in the Fifth Circuit Pattern Jury Instructions." Slip op. at 13.)

BREAKING NEWS: Color of New Guidelines Manual Revealed!

Lose to Ohio State and you lose the cover of the Guidelines Manual. Rumor has it that at this past Thursday's public meeting of the United States Sentencing Commission, the Chairman revealed the color of the next edition of the Guidelines Manual: crimson and white.

Convictions and Sentences for Alien Smuggling and Hostage-Taking Affirmed

United States v. Ibarra-Zelaya, No. 05-20115 (5th Cir. Sept. 20, 2006)

This case involves a number of issues raised by six defendants convicted at trial of alien smuggling (8 U.S.C. § 1324) and hostage-taking (18 U.S.C. § 1203(a)).

Here's a simplified version of the facts: Defendants abducted a group of aliens at gunpoint from the coyote who had originally smuggled them into the country. One the way to a new hide-out apartment, the defendants gave the aliens a cell phone and told them to tell their relatives to send the smuggling fee to the defendants rather than the original coyote. The defendants, who were armed all the time, took turns guarding the aliens. While at the apartment the defendants again had the aliens call relatives to get the smuggling fees sent to the defendants. They also had one alien who had already paid the original coyote to call a friend and ask for more money.

"At around 1:30 a.m. on March 12, 2004, Houston police dispatch received a call about a hostage situation with weapons at the apartment where the aliens and the appellants were staying. Uniformed officers arrived on the scene at around 2 a.m. They saw four people exit the apartment and get into a car with an expired registration. They stopped the car based on the traffic violation." None of the people in the car had ID, so the police detained them. One of the car's occupants said she had her ID in the apartment. She knocked on the door, but no one answered and she told the officer with her that she didn't have her keys. While waiting for someone to answer the door, the officer could hear people moving around inside the apartment.

Several minutes later the door opened and three men fled the apartment on the balcony. The officer went inside to do a protective sweep, and gathered all the aliens in the living room. While waiting for immigration agents to arrive, the officers saw what they believed to be suspicious activity in one of the bathrooms. An officer went into the bathroom and saw three loaded handguns in the toilet tank. A couple of the defendants started moving towards the front door, so the officers drew their weapons and moved the defendants to their patrol cars.

The defendants raised a number of issues on appeal, chief among them the sufficiency of the evidence on the hostage taking counts. The court found the evidence sufficient on all three elements of the offense, which are that the defendants "(1) seized or detained another person, and (2) threatened to kill, injure, or continue to detain that person, (3) with the purpose of compelling a third person or entity to act in some way as an 'explicit or implicit condition for the release of the person detained.'" Slip op. at 5-6 (citations omitted).

As to the first element, no threats of violence or actual violence are necessary. Here, it was sufficient that the aliens were frightened or deceived into staying with the defendants when they would have prefered to go elsewhere or to stay with the original coyotes. As to the second element, the fact that the defendants carried guns at the apartment was sufficient, even in the absence of an inference that the aliens would not be released until their relatives had sent money. Finally, as to the third element, a person does not have to communicate a threat to a third pary; instead, a person only has to intend to compel a third party to act. Also, a person does not have to communicate the demand personally; here is was sufficient that the aliens made the calls for money. And,

[e]ven if the appellants did not increase the amount of money requested by the original coyotes, they can still be convicted under the HTA. Just because the aliens were willingly with the first set of coyotes doesn’t mean they were willingly with the appellants. There is no requirement under the HTA that there be an increase in the amount of money requested for criminal liability to attach; instead, the test is when the relationship becomes non-consensual as it did here when the appellants abducted the aliens from the apartment where they were initially.

Slip op. at 8.

The court also:

• affirmed the denial of a motion to suppress the guns and aliens, holding that 1) the traffic stop was valid, 2) entry into the apartment was a permissible protective sweep justified by exigent circumstances, and 3) the officers had probable cause to go into the bathroom where they found the guns;
• rejected objections to comments the district court made during voir dire and when charging the jury;
• managed to affirm some of the sentences as reasonable without (as near as I can tell) ever saying what those sentences were (the sentences must have been greater than 71 months, though, because the defendants "point[ed] out that someone with no criminal record who causes another to die during an alien smuggling offense would warrant at most 71 months in prison"); and
• modified the sentence to five years on two 1324 counts against one of the defendants since the counts charged an aiding and abetting theory (a modification that did not affect that defendant's overall term of imprisonment).

Court Rejects Fact- and Apprendi-Based Challenges to ACCA Enhancement

United States v. White, No. 05-31048 (5th Cir. Sept. 19, 2006) (per curiam)

White pled guilty to being a felon in possession of a firearm. He had a prior conviction for aggravated battery, and two prior convictions for disributing drugs. The district court found him to be an armed career criminal on the basis of those prior convictions, and imposed a statutory mandatory minimum sentence of 180 months.

White challenged the application of the ACCA enhancement on two grounds: he argued 1) that the two drug convictions should be treated as a single offense, not as two separate offenses, and 2) that application of the ACCA enhancement based on facts that he did not admit violated his Sixth Amendment rights as outlined in the Apprendi line of cases (including Shepard). The court rejected both arguments.

As to the factual question of the separateness of the two drug convictions,

Relying on the assertions of counsel, White claims that on March 12, 1988, a confidential informant approached him and requested to purchase cocaine and marijuana. White immediately supplied the informant with marijuana, but did not have cocaine on his person at time. Thus, he arranged to sell cocaine to the informant five days later, and he returned on March 17 to complete the cocaine transaction. White’s two offenses were charged separately, but tried together.

Slip op. at 4. The court faulted White for not actually offering any evidence to support his counsel's assertions, but it held that even if White's version of the two transactions was accurate, the two offenses were separate. "Ultimately, the critical inquiry when deciding whether separate offenses occurred on ‘occasions different from one another’ for purposes of ACCA is whether the offenses occurred sequentially. This court has long held that crimes that are distinct in time are properly treated as separate criminal transactions for the purposes of § 924(e)." Slip op. at 4-5 (internal quotation marks, citations, and alteration omitted). The court rejected White's argument that, because he agreed to sell the cocaine at the time that he actually sold the marijuana, the sales constituted one offense: "In the instant case, long after he completed his sale of marijuana, White committed the new offense of selling cocaine. White had five days to decide against selling cocaine, but he elected to commit an additional crime."

As for the Sixth Amendment argument, the court essentially held that Shepard did not limit the scope of the Apprendi prior conviction exception, agreeing with the Fourth Circuit that "'[t]he data necessary to determine the ‘separateness’ of [a defendant’s crimes] is [sic] inherent in the fact of prior convictions,' and do not have to be put before a jury." Slip op. at 7 (quoting United States v. Thompson, 421 F.3d 278, 285 (4th Cir. 2005)). (Note that the court treats this issue, which is really the most important one in the case, rather perfunctorily. The scope of Apprendi's prior conviction exception in the wake of Shepard is an issue that counsel should continue to litigate and preserve for a possible SCOTUS resolution.)

Finally, the court held that the district court did not run afoul of Shepard in making the findings necessary for the ACCA enhancement:

White did not object to the accuracy of the facts in the PSR; in fact, through his counsel at his sentencing hearing, he admitted that he had sold drugs on March 12 and March 17, 1988, as part of his argument that he only committed a single “serious drug offense,” supra. This court has recently held that “the district court can use all facts admitted by the defendant” in ascertaining the basis of a prior conviction for enhancement purposes. United States v. Mendoza-Sanchez, 456 F.3d 479, 483 (5th Cir. 2006). Moreover, in addition to the PSR and White’s admissions, the Government also provided the court with Shepard-approved court documents, including the charging instruments used against White. White did not object to them. Thus, the court had ample bases to determine that White’s drug offenses were separate; it did not run afoul of Shepard in finding that White qualified for a sentence enhancement.

Slip op. at 7-8.

New Blog to Read

I've long maintained (for reasons I won't bore y'all with right now) that Waco, Texas is at the epicenter of everything significant that happens in the State of Texas (and, quite possibly, the world). Further proof comes in the form of Osler's Razor, a new blog by Mark Osler, a criminal law professor at Baylor Law School. Check it out. (By the by, Prof. Osler has been on a world tour of sorts lately, fighting the disparity in the The Man's crack-vs.-powder sentencing guidelines. Note that the Third Circuit has recently held that such disparities are fair game for consideration at sentencing.)

Defendant Fails to Demonstrate Necessary Prejudice to Vacate Conviction Based on Guilty Plea

United States v. Castro-Trevino, No. 05-40850 (5th Cir. Sept. 11, 2006)

Castro was charged with and pled guilty to "exporting from the United States into Mexico 11,500 rounds of ammunition in violation of 22 U.S.C. §§ 2778(b)(2) and (c); 22 C.F.R. §§ 121.1, 123.1(a), and 127.3; and 18 U.S.C. § 2." Slip op. at 1. Castro sought to vacate his conviction on appeal, arguing that there was an insufficient factual basis for his guilty plea because the facts established that he was guilty of attempting to export the ammunition rather than actual exportation.

Applying plain error review, the court refused to vacate the conviction. Although there was error and the error was plain, the court held that the error did not affect Castro's substantial rights. In the context of a guilty plea, a defendant "'must show a reasonable probability that, but for the error, he would not have entered the plea.'" Slip op. at 8-9 (quoting United States v. Dominguez Benitez, 124 S. Ct. 2333, 2336 (2004)). Castro failed to demonstrate prejudice because "a conviction for an attempt to commit the completed offense charged (or a conviction for some other lesser included offense of that charged), may properly be based on an indictment which alleges only the completed offense and does not mention attempt (or other lesser included offense of that charged)[,]" and Castro agreed to a factual basis that clearly described the conduct in terms of an attempt rather than a completed offense. Id. at 16-17. The court instead "modifie[d] the judgment in accordance with th[e] opinion to reflect conviction for attempted exportation of ammunition rather than the completed offense, and affirm[ed] the judgment as so modified." Id. at 21.

(There's also some discussion about whether the statute and incorporated regulations punish attempts (yes), and whether Castro's offense level should have been calculated under guideline §2X1.1 (no)).

Consensual Sex With a Person Under 17 Years Old under Tex. Penal Code § 22.011(a)(2) is a §2L1.2(b)(1)(A)(ii) Crime of Violence

United States v. Alvarado-Hernandez, No. 05-50994 (5th Cir. Sept. 14, 2006) (per curiam)

In this flawed opinion, the court holds that a conviction for consensual sex with a person less than seventeen years old in violation of Tex. Penal Code § 22.011(a)(2) is generic "statutory rape" and therefore an enumerated crime of violence subject to a 16-level enhancement under U.S.S.G. §2L1.2(b)(1)(A)(ii). Here is the court's discussion of the issue:

This court uses a “common sense approach” to determine if the defendant’s offense qualifies as an enumerated offense in the Guidelines. United States v. Sanchez-Ruedas, 452 F.3d 409, 412 (5th Cir. 2006) (“common-sense approach” requires a determination of the generic and contemporary meaning); see also United States v. Izaguirre-Flores, 405 F.3d 270, 274-75 (5th Cir. 2005). We review the district court’s interpretation de novo. Id. at 272.

The Texas statute at issue meets a common sense definition of “statutory rape.” This statute punishes consensual sexual intercourse with a child, defined as a person younger than the age of seventeen. Tex. Penal Code §§ 22.011(a)(2), (c)(1). Alvarado-Hernandez’s prior conviction was based on an indictment that charged him with having consensual sexual intercourse with a fourteen-year-old victim, sufficient to meet a common-sense as well as a generic, contemporary definition of statutory rape. See United States v. Lopez-Garcia, 163 F. App’x 306, 307-08 (5th Cir. 2006) (unpublished).

Slip op. at 2-3 (footnote omitted). The court also holds that "[t]he defendant's attempt to draw distinctions between the Texas statute and the Model Penal Code is without merit." Id. at 4.

There are three major flaws in the court's reasoning. First, the court perpetuates the confusion surrouding the enumerated offense prong of the COV definition by applying a common-sense approach rather than the familiar Taylor/Shepard categorical approach without explaining how, if at all, the two approaches differ. (See discussion here.)

Second, the court appears to rely on the specific facts underlying the prior offense, namely the age of the victim. That's verboten under the categorical approach, and even the prior Fifth Circuit cases that have used a common-sense approach have refused to consider the underlying facts of the prior offense.

Third, Texas's statutory rape law is broader than generic statutory rape. The least culpable conduct that would constitute an offense under the Texas statute would not be a crime in the vast majority of states, either because other states have a lower age of consent than Texas or because they require a greater age difference between the perpetrator and the victim than Texas does. The Model Penal Code's definition of statutory rape is also narrower than Texas's. In other COV cases the Fifth Circuit has treated the MPC as the gold standard for generic offense definitions, making the court's rejection of "[t]he defendant's attempt to draw distinctions between the Texas statute and the Model Penal Code" as "merit[less]" especially puzzling.

Alien's Conviction for Aiding & Abetting Bank Fraud Qualifies as Aggravated Felony

James v. Gonzales, No. 04-60445 (5th Cir. Sept. 5, 2006)

James travels one of the less familiar backroads of the aggravated felony definition, namely 8 U.S.C. § 1101(a)(43)(M)(i). That provision includes as an aggravated felony "an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000[.]" James argued that his conviction for aiding and abetting bank fraud (18 U.S.C. §§ 2, 1344) did not qualify as an aggravated felony under (a)(43)(M)(i), for two reasons.

First, James argued that because § 1101(a)(43)(U) specifically includes attempts or conspiracies to commit offenses listed elsewhere in the aggravated felony definition, but not aiding and abetting, his conviction for aiding and abetting bank fraud was not an aggravated felony. The court rejected that specific contention, noting that "the aiding and abetting statute . . . does not define a separate crime, but rather provides another means of convicting someone of the underlying offense." Slip op. at 8 (internal quotation marks and citation omitted). More generally, the court held that "involves" in (a)(43)(M)(i) is sufficiently broad enough to encompass aiding and abetting bank fraud.

Second, James argued that his bank fraud conviction did not involve a loss in excess of $10,000, because the count to which he pled guilty alleged only a $9,500 wire transfer. The court rejected this argument, as well. The court's reasoning on this point is difficult to follow, but it appears to be this: 1) James' indictment alleged a scheme to defraud, so the loss amount is not limited to the amount alleged in the single count to which he pled guilty, and 2) the restitution order, which was based on a PSR that calculated intended losses somewhat conservatively, only included actual losses suffered by the victims and that amount far exceeded $10,000.

Fifth Circuit Speaks on Seibert

United States v. Courtney, No. 05-30156 (5th Cir. Aug. 28, 2006)

Courtney reverses the district court's grant of a motion to suppress statements given in three separate interrogations. The court held that the first two statements weren't obtained in violation of Miranda, leaving no problem with the third. Courtney could have left it at that, but went on to explain how the Fifth Circuit is going to construe Missouri v. Seibert, 542 U.S. 600 (2004), the Supreme Court's recent decision involving two-step interrogations designed to circumvent Miranda.

Courtney gave false testimony in a mail fraud trial. Two Environmental Protection Agency (?) agents called Courtney and asked to meet with her at her home to talk about why she'd testified falsely. Courtney agreed to meet them at a McDonald's instead. At that meeting, which lasted about an hour, "Courtney was not told that she did not have to talk to the agents, that she could leave, or that she could hire a lawyer; however she was not told that she was required to talk to them or that she could not leave." A week later the agents showed up at Courtney's job to talk with her some more about her false testimony. They met for about forty-five minutes in an empty room, and, like the first meeting, the agents didn't say anything one way or another about whether Courtney could refuse to talk to them.

One year later the Government indicted Courtney on two counts of perjury. One of the agents called Courtney and told her he had to serve some papers on her. Courtney didn't want the agents coming to her job site, so she volunteered to go to the agents' office. Once she arrived the agents told Courtney she was under arrest for perjury, Mirandized her, and obtained a third statement that covered the same ground as the earlier two.

Courtney filed a motion to suppress her three statements to the EPA agents, arguing, in reliance on Missouri v. Seibert, that the agents deliberately circumvented the requirements of Miranda. The district court agreed and granted the motion, finding that "the first two interviews were unnecessary because the agents already knew that she had committed perjury." The government appealed.

The Fifth Circuit reversed, holding that Seibert did not apply because Courtney's first two statements weren't obtained in violation of Miranda. The court concluded that Courtney wasn't in custody during those two interviews, and that she therefore wasn't entitled to Miranda warnings.

Despite holding that Seibert wasn't applicable in the first place, the court went on to hold, in the alternative, that even if the first two statements were the product of Miranda violations, there was no Seibert violation. In doing so the court had to figure out exactly what the holding of Seibert was.

Recall that Seibert involved a two-step interrogation practice whereby law enforcement officers first interrogate a suspect sans Miranda warnings, obtain inculpatory statements, then Mirandize the suspect and conduct a second interrogation that elicits the same inculpatory statements. A majority in Seibert agreed that, on the facts presented in that case, the second statement was inadmissible. But there was no majority opinion as to why. Justice Souter, writing for a 4-Justice plurality, viewed the dispositive issue as whether Miranda warnings delivered "midstream" could be effective (an objective, fact-intensive test). Justice Kennedy concurred in the judgment, but felt that the plurality's "test cut[] too broadly" insofar as it would apply to "both intentional and unintentional two-stage interrogations."

Courtney therefore applied the rule that "when confronted with a plurality opinion, we look to the position taken by those Members who concurred in the judgment on the narrowest grounds." Slip op. at 7-8 (citation and internal quotation marks omitted). The court located that position in Justice Kennedy's concurrence: "Seibert requires the suppression of a post-warning statement only where a deliberate two-step strategy is used and no curative measures are taken; where that strategy is not used, the admissibility of postwarning statements [] continue[s] to be governed by the principles of Elstad." Id. at 8 (citation and quotation marks omitted; alterations in Courtney). (We'll leave for another day whether Courtney correctly divined the holding of Seibert, or whether it's even possible to find a single rationale that commanded a majority of the court.)

Having so construed Seibert, Courtney went on to hold that even if the first interviews violated Miranda, and even if the EPA agents did so deliberately, "the [one] year lapse between those unwarned statements and the third, warned statement is sufficient to render the Miranda warnings effective and Courtney's third statement voluntary." Slip op. at 9.