U.S. v. Plugh, 10–2815–cr.

• Decision Date: 08 August 2011
• Docket Number: No. 10–2815–cr.,10–2815–cr.
• Citation: 648 F.3d 118
• Parties: UNITED STATES of America, Appellant,v.Gordon J. PLUGH, Defendant–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

648 F.3d 118

UNITED STATES of America, Appellant,

v.Gordon J. PLUGH, Defendant–Appellee.

No. 10–2815–cr.

United States Court of Appeals, Second Circuit.

Argued: June 1, 2011.Decided: Aug. 8, 2011.

Joseph J. Karaszewski, Assistant United States Attorney, on behalf of William J. Hochul, Jr., U.S. Attorney, Western District of New York, Buffalo, NY, for Appellant.Jeffrey Wicks (Candice C. Baker Leit on the brief), Jeffrey Wicks, PLLC, Rochester, NY, for Defendant–Appellee.Before: JACOBS, Chief Judge, LIVINGSTON, Circuit Judge, RAKOFF, District Judge.^*

DEBRA ANN LIVINGSTON, Circuit Judge:

The instant appeal arises from the suppression of certain custodial statements made by defendant-appellee Gordon Plugh shortly after his arrest. The district court (Siragusa, J.), suppressed these statements after concluding that Plugh had successfully invoked his Miranda rights by declining to sign a waiver-of-rights form, United States v. Plugh, 522 F.Supp.2d 481, 495–96 (W.D.N.Y.2007), and a panel of this Court affirmed, United States v. Plugh, 576 F.3d 135, 137 (2d Cir.2009) (hereinafter, “ Plugh I ”). Specifically, the Plugh I majority concluded that the defendant's “unequivocal[ ] refus [al] to sign the waiver [of rights] form” was itself sufficient to invoke those rights, id., thus rejecting application of the standard set forth in Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), whereby a defendant must “unambiguously” invoke his rights in order to cut off questioning, Plugh I, 576 F.3d at 142–43. As the Plugh I majority reasoned, “ Davis does not instruct courts on how to analyze an initial invocation of one's Fifth Amendment rights following the Miranda warnings” but is instead limited to cases where a defendant attempts to “ subsequently invoke[ ] previously waived Fifth Amendment rights.” Id. at 143.

Shortly thereafter, while this case was pending before the district court, the Supreme Court announced its opinion in Berghuis v. Thompkins, ––– U.S. ––––, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010). There, the Court clarified that the Davis “unambiguous[ ]” statement standard does control a court's analysis of an initial invocation of both the right to remain silent and the right to counsel, id. at 2259–60, and it further held, on the facts of that case, that the defendant's conduct, which included a refusal to sign an advice-of-rights form, did not amount to an “unambiguous” invocation of those rights sufficient to cut off further questioning by law enforcement officials, id. at 2256, 2260.

In light of Berghuis, the United States now asks us to revisit our decision affirming the order of suppression in Plugh I. Because we agree with the government that Berghuis constitutes “an intervening change in controlling law,” Doe v. N.Y.C. Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir.1983) (internal quotation marks omitted), and because we further agree that Berghuis compels a different outcome on these facts, we reconsider the district court's order of suppression in this case and now vacate that order.

I. BACKGROUND

A. The Custodial Statements

Because the underlying facts are amply set forth in Plugh I, we rehearse them here only as necessary to facilitate this discussion:

Defendant Plugh initially came to the attention of FBI agents in July 2005 during the course of an investigation into child pornography possession and online trafficking. At that time, agents questioned Plugh and, with his consent, obtained from him a personal computer to be searched. That search uncovered evidence of child pornography. On September 28, 2005, Plugh was arrested at his father's home in Wayland, New York. Plugh I, 576 F.3d at 137. Upon placing Plugh in handcuffs, the agents advised Plugh of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and then asked him to sign a waiver-of-rights form. That form, prominently labeled “YOUR RIGHTS,” contained the following:

Before we ask you any questions, you must understand your rights.

You have the right to remain silent.

Anything you say can be used against you in court.

You have the right to talk to a lawyer for advice before we ask you any questions.

You have the right to have a lawyer with you during questioning.

If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.

If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.

WAIVER OF RIGHTS

I have read this statement of my rights and I understand what my rights are. At this time, I am willing to answer questions without a lawyer present.

[Signature Line]

Plugh, 522 F.Supp.2d at 486–87. Plugh, who “c[an] read and write,” id. at 488, told the agents that he understood his rights, adding that he had previously worked in law enforcement as a state corrections officer, but he declined to sign the waiver on the grounds that “I am not sure if I should be talking to you” and “I don't know if I need a lawyer,” Plugh I, 576 F.3d at 138 (quoting Plugh, 522 F.Supp.2d at 487). Accordingly, the agent wrote “refused to sign” on the waiver form and placed Plugh in a car for transport to the FBI field office in Rochester. Id.

During the one-hour-and-fifteen minute drive to the FBI office in Rochester, Plugh repeatedly asked the agents “for advice on what to do.” Id. While the agents made clear they would not discuss the case further with him at that time, they stated that should he wish to cooperate and answer questions, they would relay any such cooperation to the U.S. Attorney's Office handling the prosecution. No further relevant discussion took place for the remainder of the drive. Id.

Once at the FBI office in Rochester, the agents placed Plugh in a back interview room and informed him that he was about to be turned over to the U.S. Marshals for booking. They added, however, that “[i]f he wanted to make any statements this was the point” at which he should do so. Id. (alteration in original). Plugh then affirmatively indicated that he wished to make statements, and the agents re-advised him of his Miranda rights. At no point did Plugh indicate that he wished to consult with an attorney. Id. As the district court concluded in findings of fact which are not disputed before this Court, Plugh “was calm and cooperative. No threats or promises were made to the defendant to get him to talk to the police.” Plugh, 522 F.Supp.2d at 488. Plugh then signed a waiver-of-rights form and proceeded to make the series of inculpatory statements at issue on appeal. Id.

B. Plugh I

Plugh was indicted in January 2007 on nine counts of receipt and possession of child pornography, see 18 U.S.C. § 2252A(a)(2)(A), (a)(5)(B), and defense counsel moved to suppress, among other things, Plugh's post-arrest statements. The district court held an evidentiary hearing on the motion, and then granted it in relevant part. Framing the inquiry as whether Plugh's conduct “[could] reasonably be construed to be an expression of a desire for the assistance of an attorney” or to remain silent, Plugh, 522 F.Supp.2d at 491–92, the district court concluded that Plugh's “unequivocal[ ]” refusal to sign the waiver-of-rights form was sufficiently clear to meet that standard, id. at 495. Accordingly, it determined that the agents should have ceased all questioning in the face of that refusal to sign the form and suppressed the ensuing statements. Id. at 496.

The government appealed, and a divided panel of this Court affirmed. Relying heavily on the prior opinion of this Court in United States v. Quiroz, 13 F.3d 505 (2d Cir.1993), which it read to stand for the proposition that “when a custodial officer specifically asks a suspect if he will waive his rights by signing a form and does so in such a way that the accused would interpret a refusal to sign as a negative answer, the suspect has taken sufficient action to trigger the ... prophylactic rule” announced in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Plugh I majority concluded that Plugh had taken “sufficient action” on these facts to trigger that rule. Plugh I, 576 F.3d at 141–42. While acknowledging that “Plugh's statements, ‘I am not sure if I should be talking to you’ and ‘I don't know if I need a lawyer’ appear ambiguous,” the majority found that “Plugh's ultimate action—his refusal to sign [the advice-of-rights form]—constituted an unequivocally negative answer to the question posed ... namely, whether he was willing to waive his rights.” Id. at 142 (quoting Plugh, 522 F.Supp.2d at 487).

In so concluding, the Plugh I majority expressly rejected application of the standard articulated in Davis, 512 U.S. at 452, 114 S.Ct. 2350, whereby a defendant must “unambiguously” invoke his rights in order to cut off questioning. The panel majority reasoned, in reliance on its view of the law at the time Plugh I was decided, that Davis applies only in “circumstances in which a defendant makes a claim that he subsequently invoked previously waived Fifth Amendment rights.” Plugh I, 576 F.3d at 143.

Chief Judge Jacobs dissented, arguing principally that the Davis standard should apply on these facts and that Plugh's conduct, considered in totem, “besp[oke] indecision and ambiguity.” Id. at 146 (Jacobs, C.J., dissenting). With respect to the refusal to sign the waiver-of-rights form in particular, Chief Judge Jacobs argued that, in context, it was “wholly consistent with the expression of uncertainty” and was thus insufficient to unambiguously invoke the defendant's Fifth Amendment rights. Id. at 145.

C. Berghuis

After Plugh I was decided but before the case proceeded to trial below, the Supreme Court announced its opinion in Berghuis. There, as here, the defendant had been offered the chance to sign an advice-of-rights form but had declined to do so.¹Berghuis, 130 S.Ct. at 2256. There, as here, the defendant nonetheless subsequently made...