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Defendant-Appellant, already in custdoy, Invoked and then Wavied his Miranda Rights after Agents' co

After invoking his Miranda Rights, the Second Circuit found that the Defendant-Appellant could revoke his invocation of his Miranda rights and submit to interrogation and confessions which formed the basis for several murder convictions after trial. The evidence for this conviction of murder was obtained when the Defendant-appellant was already incarcerated and serving a term of imprisonment for an unrelated offense. He was questioned, invoked his rights and then, as the agents were leaving, he supposedly waived his Miranda rights.The Defendant-appellant moves to suppress written confessions claiming that the interrogation was coercive, he invoked his rights to counsel and to remain silent. The District Court held that the Defendant-appellant reinitiated interrogation after Miranda warnings and there was a “six-hour safe harbor period” for questioning between arrest and presentment. The Second Circuit affirmed.

The Defendant-appellant allegedly took part in four murders of which matching bullet-casings were recovered at the scene of each of these homicides. These blue-tipped 9 mm bullets and .45 caliber shells may have tied the crimes together but there was no proof as to whom they belonged. On July 24, 2008, many years after the murders, the Defendant-appellant was indicted for one of the murders. The Defendant-appellant was being held on an unrelated immigration charge in Georgia. A criminal investigator from the United States Attorney’s Office visited the Defendant-appellant with three other men after the indictment was issued.

An interview was commenced in Spanish, the interview room door was shut (but unlocked) and the interviewer gave Defendant-appellant a Spanish-Language Miranda Form to which the Defendant-appellant wrote “no” next to the inquiry as to whether he was willing to answer questions. According to the government (the agents), the interview was over and the agents began to leave. “One or more agents told appellant that they would see him in New York and that he would not be returning to the Dominican Republic. Appellant then said he wanted to speak to the agents and told them not to leave.”

The Second Circuit noted that the account of what happened next was skewered and different among the agents but a second English-Miranda form was provided to the appellant to which appellant answered “si” and signed the form. “Appellant contends that he was questioned regarding the murders both before and after the first Miranda form was signed. Ralat [the bilingual agent] stated, however, that questioning commenced only after the second Miranda form was signed, after which point the conversation switched to English, with detective Geiss, who spoke no Spanish, participating as well.” Defendant-appellant signed three confessions written in Spanish and never asked for an attorney during the interview.

Law: Statements obtained in violation of Miranda are of course subject to a prophylactic rule of exclusion. Dickerson v. United States, 530 U.S. 428, 443-44 (2000). Once Miranda rights have been invoked, interrogation must stop and the invocation must be “scrupulously honored.” Michigan v. Mosley, 423 U.S. 96, 104 (1975). However, a waiver can occur subsequent to an initial invocation of Miranda rights if the suspect reinitiates communication. Edwards v. Arizona, 451 U.S. 477, 485 (1981); Wood v. Ercole, 644 F.3d 83, 90 (2d Cir. 2011). The government must prove by a preponderance of the evidence that a defendant’s waiver of Miranda rights was knowing, voluntary and intelligent. Colorado v. Connelly, 479 U.S. 157, 168 (1986); Miranda, 384 U.S. at 444. Whether a waiver occurred is determined by viewing the totality of the circumstances, but for an invocation of Miranda rights to trigger exclusion, the invocation must be “unambiguous.” Berghuis v. Thompkins, 560 U.S. 370, 381 (2010)….

The Second Circuit finds dispositive that Defendant-appellant and not the agents reinitiated the contact before questioning began. The Agents’ statements that Defendant-appellant would be taken back to New York were not found by the Second Circuit to be an interrogatory statement “reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980). Instead of finding this to be an interrogatory statement or something that would prompt incriminating response, the Second Circuit held that “[i]t was not even a question, but simply an accurate statement of what was going to happen next.” The Second Circuit also made note that Defendant-appellant was again explained his rights and the interview began at Defendant-appellant’s insistence and not pressure from the government.

The case is United States v. Gonzalez, 12-2403-cr (2d Cir. Aug. 21, 2014); Federal Criminal Defense - Fifth and Sixth Amendment - Criminal Law.

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