Wednesday, August 25, 2021

Limited waiver of Miranda rights invalidated when a defendant raised the subject he initially stated he did not want to discuss during his interrogation


U.S. v. James Eugene Rought, ___F.3d ___, No. 20-2667 (3d Cir. 8/24/2021


This opinion does not answer defense attorneys’ eternal question, “Why can’t they just shut up?” but gives the unsurprising answer when they don’t. 


The defendant twice sold fentanyl to a Mr. Carichner; a transaction witnessed by a Ms. Giberson. A few days later Giberson asked Carichner to get her fentanyl from the defendant. He defendant sold it to him and the two imbibed together. Later. Carichner gave some of the fentanyl to Giberson. Later that night, Giberson overdosed but was revived with Narcan. Carichner overdosed later that evening and died. 


Police connected the defendant to the crimes, and he was indicted for distributing and possessing fentanyl with intent to distribute resulting in serious bodily injury and death. Before his initial appearance the FBI spoke to him. The defendant signed a Miranda waiver but after freely answering questions for several minutes orally stated he did not want to speak about Carichner’s death. The agents moved to different topics, but the defendant on his own brought up Carichner’s death by saying the agents were trying to pin it on him. The agents used that opening to go into Carichner’s death and obtain incriminating statements. 


The defendant’s motion to suppress the statements about Carichner was denied and a jury convicted him of the death and other crimes charges in a superseding indictment.


On appeal the defendant first maintained that all questioning should have ceased when the defendant said he did not want to talk about Carichner. The panel rejected that contention, describing a line of cases that allow a limited waiver of Miranda rights. The defendant however only made a “limited invocation” of his right to remain silent, and the agents honored up to the point he brought up Carichner by accusing the agents of setting him up for the death.  


The panel also rejected the defendant’s contention that he did not bring up Carichner’s death. Accusing the agents of trying to place blame for the murder for him was enough to allow the agents to discuss the matter. The accusation occurred during a conversation between the defendant and the agents on the poor state of Wilkes-Barre due to the drug trade. That initiated a discussion about how drugs and drug dealers were haring the community subject the defendant had previously asked be excluded from the interrogation, and the agents were free to pursue the subject. The panel acknowledged an appeal to the defendant’s conscience might elicit a response about Carichner’s death, but it refused to impute such motivation or foreknowledge to the agent who made the comment.  


Finally, the panel peremptorily rejected the defendants’ contention that the waiver was invalid because he did not see all the potential consequences. A defendant does not have to know every possible consequence of a waiver of his right to remain silent. 


In short, a defendant can make a limited waiver of Miranda rights, but if in conversation with law enforcement he in any way raises the topic he wanted to avoid, he voids his waiver, and law enforcement can continue to question him unless he reinvokes his right to remain silent. 


Judge Roth dissented, being of the view that the agents tricked the defendant into invalidating his limited invocation of Miranda rights.  




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