683 F.3d 784 (7th Cir. 2012), 10-3894, United States v. Wysinger

Docket Nº:10-3894.
Citation:683 F.3d 784
Opinion Judge:ROVNER, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John WYSINGER, Defendant-Appellant.
Attorney:Andrew Simonson (argued), Assistant U.S. Attorney, Office of the United States Attorney, Fairview Heights, IL, for Plaintiff-Appellee. Joshua T. Buchman, Katharine M. O'Connor (argued), Attorneys, Mcdermott, Will & Emery, Chicago, IL, for Defendant-Appellant.
Judge Panel:Before MANION, ROVNER and TINDER, Circuit Judges.
Case Date:June 22, 2012
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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683 F.3d 784 (7th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

John WYSINGER, Defendant-Appellant.

No. 10-3894.

United States Court of Appeals, Seventh Circuit.

June 22, 2012

Argued Sept. 8, 2011.

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[Copyrighted Material Omitted]

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Andrew Simonson (argued), Assistant U.S. Attorney, Office of the United States Attorney, Fairview Heights, IL, for Plaintiff-Appellee.

Joshua T. Buchman, Katharine M. O'Connor (argued), Attorneys, Mcdermott, Will & Emery, Chicago, IL, for Defendant-Appellant.

Before MANION, ROVNER and TINDER, Circuit Judges.

ROVNER, Circuit Judge.

A jury convicted John Wysinger on one count of conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846 and 851; and one count of aiding and abetting possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 851, and 18 U.S.C. § 2. At trial, the jury twice viewed a video of Wysinger's interrogation by an agent of the Drug Enforcement Agency (" DEA" ). Wysinger challenged the admission of the video on the grounds that the Miranda warning was inadequate and misleading, and that the agent continued to interrogate him after he clearly and unequivocally invoked

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his right to counsel. On appeal, he again challenges the admission of the video. We agree that the video should have been suppressed and that the error was not harmless. Accordingly, we vacate Wysinger's conviction and remand for further proceedings.

I.

Wysinger came to the attention of the DEA as the result of an investigation into a drug trafficking operation between East St. Louis, Illinois, and Chicago. The investigation began when a confidential informant told the DEA that Sebastion Robinson, an East St. Louis resident, was distributing drugs. The DEA began to surveil Robinson's residence. On December 15, 2008, agents followed two vans leaving Robinson's residence. At the direction of the DEA, local police officers stopped the vans. One of the vans was driven by Tryd Wysinger, John Wysinger's brother.1 The agents seized approximately $54,000 in cash from a small backpack found in the van. Other passengers in the van included Rajdel Laurence, a woman and a child. The adult passengers in the van claimed ignorance about the ownership of the money and how it came to be in the van. Within the next ten days, a person purporting to be John Wysinger left a telephone message for DEA Special Agent Mike Rehg regarding the $54,000. Agent Rehg returned the call after the holidays and recorded the conversation. A person answering to the name " John" told Agent Rehg that he placed the money in the van and that none of the occupants knew it was there. He explained that he borrowed $45,000 from his boss and that he and his fiancé e contributed $10,000 more. The money was to be used to rehab his mother's house. John identified the other occupants of the van as his brother (Tryd), his cousin (Rajdel Laurence), his grandmother and his son. He told the agent that he did not want them to know that the money was in the van, and planned to tell his mother to retrieve the money once the van arrived at her home in Texas. John and Agent Rehg briefly discussed what would happen next to the money before the call ended.

After a confidential informant purchased crack cocaine from Sebastion Robinson in February 2009, law enforcement officials arrested Robinson and searched his home. The DEA recovered $35,000 in cash, two firearms, and small amounts of cocaine and marijuana from Robinson's home. Robinson subsequently agreed to cooperate with the DEA in its investigation. Robinson told Agent Rehg that he obtained cocaine from Wysinger (whom Robinson knew by the nickname " Cool" ) in Chicago, sold it in the East St. Louis area, and then paid Wysinger from the proceeds. Robinson said that he and Keith Holmes, another East St. Louis dealer, each owed Wysinger approximately $21,000 and that the money seized from Robinson's home belonged to Wysinger. After providing Robinson with recording equipment, Agent Rehg asked Robinson to arrange a meeting with Holmes to deliver $42,000 to Dempsey Ivery, a courier believed to be working for Wysinger. Law enforcement officers then stopped the car on the way to the meeting and seized the money.

After these large seizures of cash by police officers, contact among Wysinger, Robinson, Holmes and other participants slowed for several months as they became concerned about the apparent investigation.

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In May 2009, the group began talking again. Robinson met with Tryd and determined that Wysinger was ready to arrange another cocaine delivery to the East St. Louis area. On May 26, 2009, the DEA asked Robinson to call Wysinger to see if any cocaine was available. The DEA recorded the call. Agent Rehg interpreted the cryptic conversation as Wysinger telling Robinson that he was trying to obtain some cocaine and would let Robinson know when he was able to do so. Robinson confirmed that interpretation in his own testimony at trial. The next day, Robinson told Agent Rehg that Wysinger and Tryd had contacted him to report that a shipment was on its way to East St. Louis and would be there within hours. After establishing surveillance at Robinson's home, officers were able to identify a van occupied by Tryd and an unidentified woman. Local officers stopped the van and discovered a kilogram of cocaine. Tryd and the woman were taken to the police station for questioning. Two agents then met with Robinson so that any subsequent calls with Wysinger could be recorded.

The agents recorded three short calls between Robinson and Wysinger on May 27, each interpreted by Agent Rehg and Robinson at trial. In the first call, Wysinger asked if Robinson had received the shipment and Robinson said he had not. Wysinger also asked how much money Robinson would be giving Tryd on delivery and Robinson indicated $4000. In the second call, Wysinger asked again (in coded language) if the cocaine had been delivered and Robinson indicated it had not. Robinson then asked if it was in a white van and indicated that local police had stopped a white van a short distance from his home. Robinson told Wysinger he would drive past the scene to see if it was Tryd's van. In the third call, the two continued to discuss the traffic stop of the van.

When agents on the scene saw that the van came from the direction of Holmes' house, they decided to see if the van had first delivered cocaine to Holmes. They found Holmes standing on the street a half a block from the van watching the police investigation. After being arrested, Holmes agreed to cooperate with authorities. As the agents talked to him, Holmes' phone began ringing. Holmes indicated that Wysinger was calling and that he needed to answer. The officers allowed him to answer the phone and recorded the call. Holmes and Wysinger spoke about the stop of the van. After the call, Holmes consented to a search of his house and police officers recovered a half kilogram of cocaine that Holmes admitted had just been delivered by Tryd.

The next morning, agents recorded another phone call between Holmes and Wysinger. Wysinger sought Holmes' advice on lawyers he could hire to represent Tryd. A few days later, the agents arranged for Holmes to call Wysinger again, in order to begin to explain to him that he would not be able to pay for the half-kilogram of cocaine that had been seized from his home. Holmes told Wysinger that agents had seized the cocaine from a house where he stored it. Wysinger wanted to visit the house himself, and so the agents allowed Holmes to set up a meeting with Wysinger. Wysinger met Holmes in a liquor store parking lot and transferred to Holmes' truck. The agents later stopped Holmes' truck and arrested Wysinger. The agents also arrested Rajdel Laurence, who was in the vehicle in which Wysinger had arrived. All were transported to the East St. Louis police department.

On June 1, 2009, Wysinger was interrogated by Agent Rehg and Wade Gummersheimer, a Fairview Heights police officer who worked on a DEA task force. The

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video recording of the interrogation was played twice for the jury during Wysinger's trial, once during the government's case-in-chief, and once during deliberations at the request of the jury. The interrogation took place in a small, uncomfortably warm 2 room containing a rectangular table, three chairs and a wall clock. The table was small enough that adults sitting on opposite sides would likely bump knees if they pulled their chairs up to it. The microphone recording the interrogation is not visible on the video. Agents Rehg and Gummersheimer entered the room together and a brief discussion ensued over which cell phone in a plastic bag belonged to Wysinger. A handcuffed Wysinger, who was seated alone in the room before the officers arrived, pointed out his phone without hesitation.

Agent Rehg then briefly took a call on his own cell phone, and as soon as he hung up, Wysinger said, " Do I need a lawyer before we start talking?" Video at 12:54; R. 287, Tr. at 104.3 Agent Rehg replied, " Well, we're going to talk about that." Video at 12:54. He then introduced himself and Officer Gummersheimer and told Wysinger, " Make no bones about it. You're under arrest. I mean, make no bones about it." Video at 12:54; R. 287, Tr. at 104. After a brief interlude where Wysinger complained about the timing of his arrest, Agent Rehg began to read Wysinger his Miranda rights from a card that the agent pulled from his wallet. About half way through the reading, the agent began to scratch the back of his neck. When he reached the words, " If you can't afford a lawyer, one will be appointed for you before we ask any questions. Do you...

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