503 F.3d 293 (3rd Cir. 2007), 06-1901, United States v. Lafferty

Docket Nº:06-1901.
Citation:503 F.3d 293
Party Name:UNITED STATES of America v. Amy L. LAFFERTY, a/k/a Amy L. Lowery, Amy L. Lafferty, Appellant.
Case Date:September 28, 2007
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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503 F.3d 293 (3rd Cir. 2007)



Amy L. LAFFERTY, a/k/a Amy L. Lowery, Amy L. Lafferty, Appellant.

No. 06-1901.

United States Court of Appeals, Third Circuit.

September 28, 2007

Argued on April 17, 2007.

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

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[Copyrighted Material Omitted]

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Kimberly R. Brunson (Argued), Karen S. Gerlach, Office of Federal Public Defender, Pittsburgh, PA, Attorneys for Appellant.

Robert L. Eberhardt (Argued), Office of United States Attorney, Pittsburgh, PA, Attorney for Appellee.

Before McKEE, AMBRO, Circuit Judges, and ACKERMAN [*], District Judge.


McKEE, Circuit Judge.

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

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to interview them about a recent burglary in the area. Both Lafferty and Mitchell agreed to go to the police station to 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 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 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 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.

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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, 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 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 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 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").

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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. Id. Nonetheless, the court ruled Mitchell's statements inadmissible against Lafferty because admitting them would violate her right of confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) . Id. at 372 F.Supp.2d 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, 387 F.Supp.2d 500, 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 statements established Lafferty's "intent to adopt Mitchell's statements." Id. at 510 (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." Id.

In ruling 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." Id. at 511. Lafferty thereafter entered a conditional guilty plea, and the court sentenced her to thirty-seven months imprisonment. This appeal followed.

II. Discussion



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