Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-28-2007

USA v. Lafferty
Precedential or Non-Precedential: Precedential

Docket No. 06-1901




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                                 PRECEDENTIAL


 UNITED STATES COURT OF APPEALS
      FOR THE THIRD CIRCUIT
            __________

                No. 06-1901
                __________

     UNITED STATES OF AMERICA

                      v.

           AMY L. LAFFERTY,
            a/k/a Amy L. Lowery
               Amy L. Lafferty
                  Appellant
                 __________
 Appeal from the United States District Court
  for the Western District of Pennsylvania
         (Crim. No. 04-cr-00007-2)
    District Judge: Hon. Kim R. Gibson
                 __________

          Argued on April 17, 2007

Before: McKEE, AMBRO, Circuit Judges, and
                 ACKERMAN*, District Judge

              (Opinion Filed: September 28, 2007)

Kimberly R. Brunson (Argued)
Karen S. Gerlach
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222

       Attorneys for Appellant

Robert L. Eberhardt (Argued)
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219

       Attorney for Appellee

                            OPINION

McKee, Circuit Judge




*
The Honorable Harold Ackerman, Senior Judge, United States
District Court for the District of New Jersey, sitting by designation.
                                  2
       Amy Lafferty challenges the district court’s denial of her

motion to suppress statements she and an alleged confederate

made during a custodial interrogation.         She argues that

admission of those statements violates her Fifth Amendment

privilege against self incrimination and her Sixth Amendment

right to confront the witnesses against her. For the reasons that

follow, we will reverse the order denying her suppression

motion and remand for further proceedings consistent with this

opinion.1

I. Facts and Procedural History

       On January 10, 2003, ATF Special Agent Mark Willgohs

called Lafferty and her boyfriend, David Mitchell, in order to

arrange to interview them about a recent burglary in the area.

Both Lafferty and Mitchell agreed to go to the police station to




1
 We have jurisdiction pursuant to 28 U.S.C. § 1291.
                              3
be interviewed, and they reported as promised, later that

afternoon.

       Upon arriving at the police station, police put Lafferty

and Mitchell in different interrogation rooms for questioning.

In Lafferty’s interrogation room, Willgohs produced an ATF

Waiver of Right to Remain Silent and of Right to Advice of

Counsel form (the “form”). The form contained a statement of

rights section (explaining a suspect’s constitutional rights) and

a waiver section (stating that a suspect had been advised of

his/her constitutional rights and had chosen to waive those

rights). Willgohs read the statement of rights section of the

form to Lafferty and she signed it. Lafferty then read the waiver

section of the form on her own and also signed it.

       During the next four hours, Willgohs questioned Lafferty

about the burglary of the Mountain Man Sports Shop

(“Mountain Man”), where eight guns had been stolen. Lafferty

                               4
did not respond to most of the questions, but when she did

respond she denied any involvement in the burglary.

Eventually, Lafferty said that she was “dope sick,” meaning that

she was experiencing symptoms of withdrawal from not having

used heroin for three days, and she asked to go home so she

could shower.

         The interrogation continued for approximately fifteen

minutes after Lafferty asked to leave.      During that time,

Willgohs tried to get Lafferty to agree to return voluntarily to

the police station to answer more questions about the burglary.

The interrogation session finally ended when Lafferty said she

would return to the police station within two days.2

         On January 15, 2003, Willgohs called Mitchell at his

mother’s house and asked Mitchell if he and Lafferty would



     2
      We will refer to this interrogation as the “January 10
interrogation.”
                              5
agree to come back to the police station to answer more

questions about the burglary. However, Lafferty was not there,

and Mitchell refused to come to the police station without her.

When Lafferty eventually arrived at Mitchell’s mother’s house,

police officers arrested her on an outstanding, unrelated warrant.

The police also took Mitchell into custody, and drove both of

them to the police station.

       There, Lafferty and Mitchell were again placed in

different interrogation rooms,       Willgohs read Lafferty the

statement of rights portion of the form once again, and she again

signed it. Lafferty then read the form’s waiver of rights section,

and she also signed it.       After Lafferty signed the waiver,

Willgohs resumed his questioning about the burglary, but

Lafferty again denied any involvement. After approximately

twenty minutes of questioning, Lafferty said: “[I]f you’re going

to charge me, charge me. I’m not going to sit here for four to

                                 6
five hours like last time.” At that point, the interrogation

ceased, and police officers put Lafferty in another room.

Meanwhile, officers continued to interrogate Mitchell and

prepared paperwork to charge Lafferty with the burglary.3

       Lafferty waited for more than two hours while the police

interrogated Mitchell.    Eventually, Mitchell’s interrogation

ended when he asked to speak to an attorney. The police then

prepared documents charging both Lafferty and Mitchell with

the burglary, and called the local Magistrate Judge to arrange for

them to be arraigned.

       State troopers then drove Lafferty and Mitchell to the

courthouse for arraignment. As they drove into the courthouse’s

parking lot, Mitchell told the officers that, if they took him and

Lafferty back to the police station and let them talk privately,



   3
     We will refer to this interrogation as the “first January 15
interrogation.”
                                 7
they would tell the police about the burglary. The troopers

agreed to take them back to the police station so long as

Mitchell agreed to provide information when they returned.

Lafferty remained silent while Mitchell brokered this deal with

the police. Unlike Mitchell, she never agreed to speak with

them.

        The troopers then drove Lafferty and Mitchell back to the

police station without having them arraigned. Back at the police

station, Lafferty and Mitchell were put in a small room together

by themselves. After approximately fifteen minutes and three

interruptions by police, Mitchell told Willgohs that they were

ready to talk, but explained that he and Lafferty wanted to speak

with police together.

        Before questioning resumed, police again advised

Lafferty and Mitchell of their Miranda rights.4 Mitchell again


   4
    See Miranda v. Arizona, 384 U.S 436 (1966).
                             8
was asked to sign the statement of rights portion of the form,

and he verbally retracted his previous request for counsel.

Lafferty was not asked to sign the statement of rights section of

the form again, and she did not sign the waiver portion of the

form or verbally waive her right to remain silent.

       Willgohs then began questioning Lafferty and Mitchell

about the Mountain Man burglary in the presence of three ATF

agents and two police officers. During the course of the ensuing

hour-long interrogation, Mitchell answered most of the

questions. In doing so, he managed to incriminate both himself

and Lafferty. Although Lafferty was silent for the most part, she

did respond to questions directly addressed to her. She also

occasionally explained and/or clarified answers that Mitchell

gave, and indicated that she agreed with some of Mitchell’s

answers by nodding her head. However, it is not clear which of

Mitchell’s statements Lafferty assented to in this manner. When

                               9
the interrogation was over, Lafferty and Mitchell left the police

station without any charges being filed.5

       Thereafter, Lafferty was indicted for violating 18 U.S.C.

§§ 922(u), 924(i)(1), and (2). The government alleged that

Lafferty and Mitchell burglarized Mountain Man, a federally

licensed gun dealer, to steal guns that they intended to trade for

drugs. Following her indictment, Lafferty filed several pretrial

motions, including a motion to suppress the statements she had

made in response to Willgohs’s questions at the second January

15 interrogation. She also asked the court to suppress statements

Mitchell made during that interview implicating her in the

burglary.

       The district court granted Lafferty’s suppression motion

in part, and denied it in part. The court found that Lafferty did



  5
    We will refer to this interrogation as the “second January 15
interrogation.”
                                 10
not speak to the police from the time she invoked her right to

remain silent until she responded to Willgohs’s questions during

the second January 15 interrogation. However, the court held

that she had implicitly waived her Fifth Amendment privilege

against self incrimination by participating in the second January

15 interrogation, by answering the questions Willgohs asked of

her, by clarifying and/or adding to some of the answers Mitchell

gave, and by failing to deny statements Mitchell gave that

implicated her in the burglary. United States v. Lafferty, 372 F.

Supp. 2d 446, 459 (W.D. Pa. 2005) (“Lafferty I”).

       The district court also held that Lafferty had adopted

Mitchell’s statements as her own pursuant to Federal Rule of

Evidence 801(d)(2)(B). The court reasoned that an innocent

person under the circumstances would have denied the

incriminating statements rather than remain silent.           

court ruled Mitchell’s statements inadmissible

                               11
against Lafferty because admitting them would violate her right

of confrontation under Crawford v. Washington, 

U.S. 36 (2004) at 460-61.

      The government thereafter asked the district court to

reconsider its ruling that Mitchell’s statements were

inadmissible against Lafferty under Crawford.6 United States v.

Lafferty, 

, 502 (W.D. Pa. 2005) (“Lafferty

II”). Upon reconsideration, the district court agreed that the

government had proven by a preponderance of the evidence that

Lafferty’s silence in the face of Mitchell’s incriminating



6
 The government also argued that Mitchell’s statements were
admissible against Lafferty because his statements were made
during a “joint confession.” Because Mitchell asked that he and
Lafferty be interviewed together, the government contended that
they presented themselves as a single unit and their statements
therefore should be equally admissible against each other. See
Fed. R. Evid. 801(d)(2)(A) (making admissible against a party
“the party’s own statement, in either an individual or a
representative capacity”). The district court rejected this
argument.
                              12
statements established Lafferty’s “intent to adopt Mitchell’s

statements.”   

(quotation omitted).        The court

cautioned, however, that the ultimate determination “as to

whether an adoptive admission was made by [Lafferty] must be

left to a jury using the standard of reasonable doubt.” 

that Mitchell’s statements were admissible

against Lafferty, the court reasoned that, “[a]ssuming the jury

concludes that the statements of Mitchell are also adoptive

admissions of [Lafferty], the Sixth Amendment right to

confrontation is not violated.” 

Lafferty thereafter

entered a conditional guilty plea, and the court sentenced her to

thirty-seven months imprisonment. This appeal followed.

                        II. Discussion

                               A.

       Lafferty first argues that the district court erred in

denying her suppression motion because the statements she

                               13
made in response to Willgohs’s questions were elicited in

violation of her Fifth Amendment privilege against self

incrimination. “We review the district court’s denial of [a]

motion to suppress for clear error as to the underlying facts, but

exercise plenary review as to its legality in light of the court’s

properly found facts.” United States v. Givan, 

,

458 (3d Cir. 2003) (quotation omitted).

       In Miranda, the Supreme Court established custodial

interrogation procedures to safeguard a suspect’s Fifth

Amendment privilege against self incrimination. The Court

instructed that a suspect

       must be warned prior to any questioning that he
       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. Opportunity to exercise these rights
       must be afforded to him throughout the
       interrogation.

                                

.      “Once warnings have been given, the

subsequent procedure is clear. If the individual indicates in any

manner, at any time prior to or during questioning, that he

wishes to remain silent, the interrogation must cease.” 

       In Michigan v. Mosley, 

(1975), the Court

amplified the mandate that “the interrogation must cease” after

a suspect invokes her/his right to remain silent. There, the Court

explained that this requirement does not mean that a suspect’s

invocation of his/her right to remain silent permanently prevents

the police from ever asking questions of the suspect again. 

Nor, however, does the phrase mean that police may

resume questioning of a suspect who has invoked the right after

a brief time-out. 

reasoned that these two extreme

interpretations would both lead to absurd results. The latter

interpretation “would clearly frustrate the purpose of Miranda

                               15
by allowing repeated rounds of questioning to undermine the

will of the person being questioned.” 

right to cut off questioning, the setting of

in-custody interrogation operates on the individual to overcome

free choice in producing a statement after the privilege has been

. . . invoked.” 

. By exercising his/her

right to terminate questioning, a suspect “can control the time at

which questioning occurs, the subjects discussed, and the

duration of the interrogation.” 

. Mosley

teaches that “the admissibility of statements obtained after the

person in custody has decided to remain silent depends under

Miranda on whether his right to cut off questioning was

scrupulously 

(emphasis in original).

       In Mosley, a suspect was arrested on robbery charges and

thereafter invoked his right to remain silent. Several hours later,

the police again gave him his Miranda warnings, and Mosley

                                16
agreed to answer questions about a related homicide. He

eventually confessed to that other crime. At trial, the state court

admitted Mosley’s confession and rejected his argument that the

second interrogation violated Miranda. The Supreme Court

affirmed, explaining:

       This is not a case . . . where the police failed to
       honor a decision of a person in custody to cut off
       questioning, either by refusing to discontinue the
       interrogation upon request or by persisting in
       repeated efforts to wear down his resistance and
       make him change his mind. In contrast to such
       practices, the police here immediately ceased the
       interrogation, resumed questioning only after the
       passage of a significant period of time and the
       provision of a fresh set of warnings, and restricted
       the second interrogation to a crime that had not
       been a subject of the earlier interrogation.

.

       Thereafter, in Vujosevic v. Rafferty, 

(3d

Cir. 1988), we had to decide if the defendant’s right to cut off

questioning had been scrupulously honored as Mosley

commands. The police had arrested Vujosevic on a Friday night
                                17
on suspicion of murder, and advised him of his Miranda rights.

When Vujosevic invoked his right to remain silent, the police

stopped the interrogation and took him to a holding cell.

Approximately twenty minutes later, police again warned

Vujosevic of his rights and asked him to sign a form

acknowledging that he understood those rights.           Again,

Vujosevic refused to speak to police, and the interrogation

ended. Several hours later, on Saturday morning, police read

Vujosevic his rights for the third time. This time, he signed a

waiver and told the police that he did not remember anything

about the previous night. Around 9:00 p.m. Sunday night,

police warned Vujosevic of his rights for the fourth time, and

told him that his brother had been arrested and charged with the

killing. At about 9:40 p.m., Vujosevic confessed to the killing.

                              18
       We held that Vujosevic’s confession was not

constitutionally admissible at his trial because the police failed

to scrupulously observe his right to remain silent. 

Although we credited the police with stopping the interrogations

each time Vujosevic invoked the privilege, we nevertheless were

troubled by the fact that he did not confess to the killing until he

had been questioned about the crime on four different

occasions.7 

We distinguished cases that held that

a “defendant’s right to remain silent had been scrupulously

honored despite the resumption of questioning on more than one


7
 We also expressed concern in Vujosevic that the police had
essentially “bluffed [the defendant] into 

. Although we found this fact significant for purposes of
distinguishing Mosley, it is clear from our reasoning in
Vujosevic that the police officers’ repeated questioning of the
defendant under the circumstances for the purpose of getting
him to inculpate himself in the crime was sufficient by itself to
establish a constitutional violation. As we shall explain, given
the circumstances here, the fact that the police did not “dupe”
Lafferty into participating in the second January 15 interrogation
does not dictate the outcome of our inquiry.
                                 19
occasion.” 

“[i]n none of those cases did the

facts give rise to an inference that the sole purpose for resuming

questioning was to persuade the defendant to abandon his right

to remain silent.” 

Rather, Vujosevic’s interrogation

resembled “cases where the right to remain silent was held not

to have been scrupulously honored” because “the police

resumed questioning for no other reason than to induce the

defendant to change his mind.” 

addressed a defendant’s claim that police

officers failed to scrupulously honor the privilege against self

incrimination in Nelson v. Fulcomer, 

(3d Cir.

1990), superseded by statute, Antiterrorism and Effective Death

Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, as

recognized in Berryman v. Morton, 

(3d Cir.

1996). Nelson was arrested on charges of rape and murder, and

invoked his right to remain silent before being interrogated. In

                               20
another interrogation room, police were questioning Terrence

Moore in connection with the same crimes. Moore confessed to

his involvement in the rape and murder, and said that Nelson

had initiated the crimes. After Moore confessed, police officers

put him in a room with Nelson after telling Moore to tell Nelson

that he had confessed. During their brief conversation, Nelson

asked Moore, “How much did you tell them?” Moore replied,

“I told it all.” 

Hearing this, Nelson requested that

Moore be taken from the room, and Moore told the police what

Nelson had said to him.

       Nelson was thereafter convicted of the rape and murder

in state court. On habeas review, the district court rejected

Nelson’s argument that the Constitution required the

suppression of his exchange with Moore. On appeal, we first

reiterated that “[u]nder Miranda v. Arizona, if a suspect

indicates in any manner at any time prior to or during

                              21
questioning, that he wishes to remain silent, the interrogation

must cease. If the state violates this rule, the prosecution may

not use a suspect’s responses to the custodial interrogation in its

case-in-chief.” 

(quotation and citation omitted). We

then noted that “[c]ustodial interrogation encompasses not only

direct questioning by the police, but also its ‘functional

equivalent.’” 

Island v. Innis, 

,

300-01 (1980)).

       Accordingly, we inquired whether the police “ploy” of

putting Moore in the same room with Nelson was the functional

equivalent of a police interrogation. In resolving that issue, we

explained that “the Court in Innis interpreted Miranda’s

prohibition against interrogation to bar not only express

questioning, but ‘also any words or actions on the part of the

police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to

                                22
elicit an incriminating response from the suspect.’” 

(quoting 

). However, we did

not reach a conclusion on this issue because the district court

had failed to determine if     Nelson knew that Moore had

confessed when Moore entered the interrogation room. We

reasoned:

       [I]f the police, or Moore at the police’s
       instruction, had already confronted Nelson with
       the confession, then this case falls squarely under
       Innis’s prohibition of ploys reasonably likely to
       elicit an incriminating response. On the other
       hand, if Nelson had not been informed of the
       confession by the words or conduct of Moore or
       the police, the suppression of the remark was not
       required . . . .

We therefore remanded to the district court for an

evidentiary hearing on whether Moore’s confession had, in fact,

been communicated to Nelson prior to Nelson’s inculpatory

statement. 

       However, we did rule on whether the police had

scrupulously honored Nelson’s right to cut off questioning when

they told Moore to go into the same room as Nelson. We

concluded that they had not. Id at 939. We explained that

putting Moore and Nelson in the same room after Nelson had

invoked his right to remain silent bore “none of the indicia of

                               23
respect identified in Mosley.”        We explained that the

government

       failed to contend, let alone demonstrate, that it
       waited a significant amount of time after Nelson
       cut off questioning, gave Nelson a fresh set of
       Miranda warnings, that Nelson had invoked his
       right in connection with an offense other than the
       rape and murder, or that the officers who
       engineered the confrontation were different from
       those whom Nelson initially refused to talk.

Rather than scrupulously respecting Nelson’s right

to cut off questioning, we concluded that “all the evidence

suggests that the detectives used the ploy ‘for no other reason

than to induce the defendant to change his mind.’” 

844 F.2d at 1029).

       Most recently, in United States v. Tyler, 

(3d

Cir. 1998), we dealt with a defendant’s allegation that his

privilege against self incrimination had been violated by

continued police questioning after he had invoked his right to

remain silent. Tyler was arrested on suspicion of murdering a

government witness who was going to testify against his

brother.   After the police advised Tyler of his Miranda

warnings, he said that he did not want to make a statement. The

interrogation ended at that point, and Tyler was put in a small

room with a police officer guarding him. Tyler and the officer
                                24
talked for a little less than one hour when Tyler began to cry.

When Tyler started crying, the police officer told him to “tell the

truth” and then advised him of his Miranda rights again.

Thereafter, Tyler made inculpatory statements that were later

admitted against him at trial. 

       On appeal, we held that the inculpatory statements were

inadmissible because they violated Tyler’s privilege against self

incrimination. We explained that the police instructing Tyler

“to tell the truth” after he “had invoked his Miranda rights is the

antithesis of scrupulously honoring his right to remain silent.”

reasoned that the police could not “negate

Tyler’s invocation of his right to remain silent by a mantra-like

recitation of Miranda warnings” because “[t]he warnings are not

intended to be a mere ritual, the exercise of which guarantees

the admissibility of any statement that is obtained in a custodial

interrogation regardless of the circumstances.” 

       Here, the district court concluded that the police did not

fail to scrupulously honor Lafferty’s privilege against self

incrimination by questioning her about the burglary during the

first January 15 interrogation. First, the court noted that five

days had passed between the time Lafferty invoked the right on

                                25
January 10 and the first January 15 interrogation. Additionally,

the court observed that the officers gave Lafferty a fresh set of

warnings before questioning her during the first January 15

interrogation. The court also reasoned that, although Lafferty

was questioned about the same crime during the first January 15

interrogation as she had been during the January 10

interrogation, there was no evidence that the officers questioned

her to make her change her mind. 

.

       However, even if we were to agree that the police

scrupulously honored her right to cut off questioning at the first

January 15 interrogation, we would still be troubled by the fact

that police put Lafferty in an interrogation room with Mitchell

and subjected her to more questions at the second January 15

interrogation after she had invoked her right to remain silent

during the first January 15 interrogation. We realize, of course,

that Mitchell and Lafferty were placed together in the same

room during the second January 15 interrogation at Mitchell’s

request, not as part of a police ploy. Thus, this is not a situation

where the police schemed to create a situation where Lafferty

would rescind invocation of her right to remain silent.

                                26
       Nevertheless, the arrangement itself, as well as the

questioning during the second January 15 interrogation, were

inconsistent with scrupulously honoring Lafferty’s assertion of

her right to remain silent. Mitchell had no authority to waive

Lafferty’s Fifth Amendment privilege for her, and police should

not have ignored the rather obvious fact that the joint

interrogation would likely force Lafferty to either react to

Mitchell’s statements or suggest her assent to those statements

by remaining silent while he incriminated her in a conspiracy.

Under Mosely, Lafferty can not be placed between such a

constitutional rock and Fifth Amendment hard place unless she

places herself there by a valid Miranda waiver; and the

circumstances here do not establish that such a waiver occurred.

       In North Carolina v. Butler, 

, 373 (1979),

the Supreme Court instructed that “in at least some cases waiver

can be clearly inferred from the actions and words of the person

interrogated.”   The Court did not, however, define the

circumstances that could result in an implied waiver. Rather,

“we must determine the question of waiver on the particular

facts and circumstances surrounding [each] case, including the

background, experience and conduct of the accused.” United

                              27
States v. Velasquez, 

, 320 (3d Cir. 1980) (quotation

marks omitted).

       Although the district court recognized that a suspect’s

silence after Miranda warnings can not, by itself, be construed

as a waiver of constitutional rights, the court nonetheless found

an implied waiver of Lafferty’s right to remain silent. 

. The court reasoned that Lafferty

waived her right to remain silent by: (1) participating in the

second January 15 interrogation; (2) answering questions asked

of her during that interview; (3) clarifying or augmenting

Mitchell’s statements; and (4) not denying Mitchell’s statements

implicating her in the burglary. 

Based on the district

court’s finding that Lafferty waived her right to remain silent, it

concluded that the Fifth Amendment did not preclude either

Lafferty’s or Mitchell’s statements from being introduced

against Lafferty at trial.

       As an initial matter it is clear that, under the

circumstances here, we can not infer that Lafferty waived her

right to remain silent merely because she was willing to go into

the interrogation with Mitchell. Lafferty did not ask to leave the

courthouse and return to the police station; Mitchell did. It was

                                28
not Lafferty’s decision to go into a room to speak with Mitchell

privately when they returned, and she neither asked to be

interrogated along with him nor agreed to the procedure.

Although she apparently relented to Mitchell’s requests, more

is required to waive a constitutional right under these

circumstances.

       The Fifth Amendment precludes Lafferty’s statements

during the second January 15 interrogation from being admitted

at trial if law enforcement officers failed to scrupulously honor

her right to cut off questioning when eliciting those statements.

Mosley identified four factors that help decide whether a

suspect’s right to cease questioning was scrupulously honored:

(1) whether a significant amount of time lapsed between the

suspect’s invocation of the right to remain silent and further

questioning; (2) whether the same officer conducts the

interrogation where the suspect invokes the right and the

subsequent interrogation; (3) whether the suspect is given a

fresh set of Miranda warnings before the subsequent

interrogation; and (4) whether the subsequent interrogation

concerns the same crime as the interrogation previously cut off

by the suspect. 

.
       Although it is unclear from the record exactly how much

time elapsed between the first and second January 15

interrogations, we do know that the second interview did not

occur until after Lafferty waited in a room for more than two

hours, rode to the courthouse, returned to the police station, and

talked to Mitchell privately for approximately fifteen minutes.

In Mosley, the Supreme Court concluded that waiting a little

more than two hours was adequate between interrogations. See

Since the officers here waited longer than that, we

can not say that the period between interrogations was

necessarily inadequate for constitutional purposes.8

       As in Mosley, the officers here also gave Lafferty fresh

Miranda warnings before questioning her during the second

January 15 interrogation. However, unlike in Mosley, where

different officers questioned the defendant during the first and

second interrogations, Willgohs questioned Lafferty during both

the first and second January 15 interrogations. Also unlike in

Mosley, where the officers asked the defendant about two

different crimes during the first and second interviews, Willgohs

  8
    In relying on the two-hour time frame of Mosley, we do not
suggest that any set period of time controls the analysis. Rather,
the importance of the time between interrogations may vary
depending on all of the other circumstances.
                                 30
asked Lafferty about the same burglary during the first and

second January 15 interrogations.

       However, the Mosley factors are not necessarily

dispositive under the circumstances here. Rather, they are tools

we employ to help determine whether a suspect’s assertion of

Miranda rights was scrupulously honored. See 

; see also 

. Given the

circumstances here, it is evident that the second January 15

interrogation was not consistent with honoring Lafferty’s

assertion of her Fifth Amendment right to remain silent.

       As noted earlier, the first January 15 interrogation ended

when Lafferty told Willgohs, “if you’re going to charge me,

charge me. I’m not going to sit here for four to five hours like

last time.” Lafferty was then placed in a room to wait while

officers prepared charges and continued questioning Mitchell;

she remained silent while she waited.        Officers then took

Lafferty and Mitchell to the Magistrate to be arraigned; Lafferty

remained silent during the ride. Mitchell then offered to tell the

police about the burglary if they took him and Lafferty back to

the police station and let them talk in private; Lafferty still

maintained her silence while Mitchell and the troopers

                               31
negotiated this arrangement. Law enforcement officers took

Lafferty and Mitchell back to the police station and put them in

a room to talk privately as Mitchell had requested. Police

interrupted their meeting three times to ask if they were ready to

talk.9 While Mitchell twice requested additional time, Lafferty

said nothing when Willgohs checked to see if they were ready

to talk. Eventually, Mitchell told Willgohs that they were

prepared to give a statement; again, Lafferty neither said nor did

anything to suggest she had changed her mind and was ready to

talk to the police.

       Notwithstanding the fact that Lafferty steadfastly

maintained her silence, she was put in an interrogation room

with at least five law enforcement officers and a confederate

who had already agreed to give a statement about a crime that

she was suspected of being involved. She was reread her




  9
   These interruptions were equivalent to asking Lafferty if she
wanted to make a statement despite her prior assertion of her
Fifth Amendment privilege.

                               32
Miranda warnings10, and asked more questions about the same

crime that she had previously said she did not want to talk about.

       Under Miranda, the onus was not on Lafferty to be

persistent in her demand to remain silent.            Rather, the

responsibility fell to the law enforcement officers to

scrupulously respect her demand. And it is clear that they failed

to do so by putting Lafferty in an interrogation room with her

alleged confederate after she had invoked her right to remain

silent and after he promised to give a confession.

       On this record, we do not conclude that the police

consented to Mitchell’s requests for a joint interrogation “for no

other reason than to induce [Lafferty] to change [her] mind.”

See 

. Nonetheless, the fact that the

 The fact that the police gave Lafferty fresh Miranda warnings
10


before resuming the second January 15 interrogation does not
undermine our conclusion that the police did not scrupulously
honor her right to remain silent. As noted earlier, “[p]olice can
not, as if by alchemy, negate [a suspect’s] invocation of his right
to remain silent by mantra-like recitation of Miranda warnings.
The warnings are not intended to be a mere ritual, the exercise
of which guarantees the admissibility of any statement that is
obtained in a custodial interrogation regardless of the
circumstances.” 

. In fact, “the more times
police inform a suspect of his rights in the face of his repeated
invocation of those rights . . . [,] the clearer it becomes that the
police must not mean what they say. This is exactly the type of
subtle coercive pressure which the Miranda opinion
condemned.” United States v. Hernandez, 

, 1368
(5th Cir. 1978).
                                 33
arrangement was not the result of an intentional scheme to

undermine Lafferty’s Fifth Amendment privilege does not mean

that police scrupulously honored that right. Mosley and its

progeny do not require a defendant who asserts a Fifth

Amendment violation to establish that the officers intentionally

set about to cause the defendant to change his/her mind. Under

Mosley, it is clear that the cloak of the Fifth Amendment is not

woven with such tenuous thread. Rather, Mosley simply

requires that police scrupulously honor a defendant’s Fifth

Amendment privilege. Here, inasmuch as Lafferty did not join

in any of Mitchell’s requests or express her willingness to be

interrogated after asserting the privilege, police were not

justified in proceeding as if she had knowingly and voluntarily

waived the right she had previously asserted. The fact that they

did so is inconsistent with the obligation of scrupulously

honoring Lafferty’s right to cut off questioning.

       As we have noted, the fact that Mitchell, rather than law

enforcement officers, suggested the arrangement for the

interrogation does not alter our analysis. If we remove Mitchell

from this scenario, the violation of Lafferty’s Fifth Amendment

right is apparent. Absent Mitchell, the following transpired:

                              34
Lafferty stopped the first January 15 interrogation when she said

that she did not want to answer any more questions; the

interrogation immediately ceased, and Lafferty was placed in a

room to wait while officers prepared documents to charge her

with the burglary; state troopers then took her to the Magistrate

Judge to be arraigned. Thereafter, the troopers brought her back

to the police station, read her fresh Miranda warnings, and

began questioning her about the burglary.

        Mitchell’s conduct can not absolve the police conduct

here absent a valid and meaningful waiver by Lafferty.

Otherwise, police could justify any manner of impermissible

interrogations by relying on a suspect’s confederate (when there

is one) to defeat an assertion of privilege. Although the idea of

a joint interrogation originated with Mitchell, the resulting

interrogation and Lafferty’s statements were obtained under

circumstances that were inconsistent with scrupulously honoring

her right to remain silent.11 Thus, the district court erred in


   11
     Our focus on the police officers’ role in devising the tactic
used in Nelson was a necessary part of our inquiry there into
whether the ploy constituted an “interrogation.” See 

. Here, there is no question that putting
Lafferty and Mitchell in the same room and then questioning
them about the burglary was an interrogation. Thus, we need
not focus on who authored the scheme leading to the violation.
                              35
failing to suppress the statements Lafferty made during the

second January 15 interrogation.

                               B.

Lafferty also argues that the district court erred in failing to

suppress the incriminating statements Mitchell made during the

second January 15 interrogation. The district court reasoned

that Lafferty’s “silence and failure to deny statements by

Mitchell . . . make the statements made by Mitchell adoptive

admissions” under Fed. R. Evid. 801(d)(2)(B) because “an

innocent defendant would have responded in order to deny the

statements made rather than acquiescing in such statements by

remaining silent after hearing and understanding those

.

       That reasoning is both puzzling and troubling. If allowed

to stand, it would virtually eliminate the right to remain silent

because a suspect’s silence in the face of incrimination would be

transformed into substantive evidence of guilt. That is precisely

what the Fifth Amendment was intended to prevent. Under the

district court’s analysis, nothing would remain of the Fifth

Amendment privilege, and the protection it intends would be

transformed into an adoptive admission of guilt. Although it is

                               36
often difficult for lay jurors to accept that an accused’s silence

can not be considered in determining guilt, it is one of the

cornerstones of the Bill of Rights, and courts must steadfastly

protect the right if it is to have any real significance.

       In explaining its reasoning to the contrary, the district

court stated:

       The Court’s ruling on this matter specifically is
       that there exists sufficient evidence to support a
       jury finding that an adoptive admission exists
       after considering this preliminary question of
       admissibility under [Rule] 104(a). That is to say
       the Government has proven by a preponderance
       of the evidence that [Lafferty]’s conduct
       manifested an intent to adopt Mitchell’s
       statements. However, the final determination as
       to whether an adoptive admission was made by
       [Lafferty] must be left to a jury using the standard
       of beyond a reasonable doubt.




                                37


(quotation marks and citation

omitted).12 We disagree. Lafferty had, of course, just been

informed that she had the right to remain silent under Miranda.

          Under Rule 801(d)(2)(B), a statement is not hearsay if

“the statement is offered against a party and is . . . a statement

of which the party has manifested an adoption or belief in its

truth.”    Whether a statement is admissible as an adoptive

admission turns on (1) whether the statement was such that,

under the circumstances, an innocent person would deny the


    12
       In both Lafferty I and Lafferty II, the district court cited
United States v. Robinson, 

(4th Cir. 2001), in
support of its conclusion that Lafferty adopted Mitchell’s
statements under Rule 801(d)(2)(B). However, that case is
distinguishable. In Robinson, co-defendants challenged the
admission of a witness’s testimony concerning their description
of a murder they committed together. The witness stated that
she overheard (but did not see) the defendants jointly tell the
story of how they shot a tow-truck driver. She also stated that
neither defendant contradicted or denied the other’s rendition of
the crime. The trial court admitted the testimony, reasoning
that, insofar as each defendant’s statements were offered against
the other defendant, the statements were not hearsay and
admissible as adoptive admissions under Rule 801(d)(2)(B).
The appellate court upheld the district court’s decision,
concluding that the circumstances of the murderous tale were
such that, had either defendant disagreed with the statement of
the other, “he would have made his disagreement known” and
that the scenario described by the witness provided sufficient
facts for a jury to find that each defendant adopted the other’s
statement as his own. 

However, the statements
in Robinson were not made during an official interrogation.
Accordingly, the Fifth Amendment did not apply.
                                38
        statements and (2) whether there are sufficient foundational

        facts from which the jury may infer that the defendant heard,

        understood, and acquiesced in the statement. Under the rule,

        “[a]doption or acquiescence may be manifested in any

        appropriate manner. When silence is relied upon, the theory is

        that the person would, under the circumstances, protest the

        statement made in his presence, if untrue.” Fed. R. Evid. 801

        advisory committee notes.13

                Of course, this is a criminal prosecution, not a civil

        proceeding. Under these circumstances, “[i]t is impermissible to

        penalize an individual for exercising [her] Fifth Amendment

        privilege when [she] is under police custodial interrogation. The

        prosecution may not, therefore, use at trial the fact that [she]

        stood mute or claimed [her] privilege in the face of accusation.”

           13
             The district court’s ruling ignored the admonition in the
        Federal Rules of Evidence. Specifically, the Advisory
        Committee Notes to Rule 801(d)(2)(B) provide:

In criminal cases . . . troublesome questions have been raised by decisions
holding that failure to deny is an admission: the inference is a fairly weak one,
to begin with; silence may be motivated by . . . realization that “anything you
say may be used against you”; unusual opportunity is afforded to manufacture
evidence; and encroachment upon the privilege against self-incrimination
seems inescapably to be involved.

Fed. R. Evid. 801(d)(2)(B) advisory committee notes (emphasis added).


                                       39


n.37. See also United States v. Hale,

(1975); Doyle v. Ohio, 

(1976).

       Doyle is particularly instructive here insofar as the Court

reiterated the proposition that it is impermissible to penalize a

defendant for invoking her Fifth Amendment privilege during a

custodial interrogation. Doyle involved two defendants who

made no post-arrest statements about their involvement in

alleged drug transactions. Each defendant testified at trial that

he had been framed. On cross-examination, the prosecutor

asked the defendants why they did not tell the police they had

been “set up” when questioned. 

The Court

concluded that impeaching the defendants on the basis of their

failure to explain being “set up” during their custodial

interrogations was fundamentally unfair because Miranda

warnings inform a person of the right to remain silent and assure

a suspect that his/her silence will not be used against 

.

       The district court’s ruling that Mitchell’s statements are

admissible against Lafferty as adoptive admissions thus violates

the rule that “[t]he prosecution may not . . . use at trial the fact

that [a defendant] stood mute . . . in the face of accusation.”

                                40


n.37. Thus, the court’s reliance on

Rule 801(d)(2)(B) is misplaced. Although the circumstances

here differ from the circumstances in Hale and Doyle, the result

is the same.    Neither Miranda, nor its progeny, limit the

exclusion of a defendant’s silence during a custodial

interrogation to specific procedural and/or tactical contexts, and

we decline to do so here. Rather, we hold that a court errs in

permitting the government to use a criminal defendant’s silence

in the face of police interrogation.

       Accordingly, Mitchell’s statements can not be construed

as adoptive admissions under Rule 801(d)(2)(B), and the district

court erred in ruling them admissible.14

                               C.

       Because we conclude that the Fifth Amendment

precludes admission against Lafferty of both the statements

she made and the statements Mitchell made during the second

January 15 interrogation, we need not reach the question of

  14
    This does not, of course, mean that the police had to forego
Mitchell’s statement in order to protect Lafferty. Although
Mitchell probably would not have confessed unless police
allowed him to be interrogated together with Lafferty after
offering them private time to meet, the police could obtain and
use Mitchell’s inculpatory statement under the circumstances
here. However, it could only be used against Mitchell because
only he waived the protection of Miranda.
                               41
whether those statements are also precluded by the Sixth

Amendment.




                             42