Wednesday, September 06, 2006

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.


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