McKathan v. United States

• Decision Date: 12 August 2020
• Docket Number: No. 17-13358,17-13358
• Citation: 969 F.3d 1213
• Parties: Denzil Earl MCKATHAN, Petitioner - Appellant, v. UNITED STATES of America, Respondent - Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

969 F.3d 1213

Denzil Earl MCKATHAN, Petitioner - Appellant,

v.UNITED STATES of America, Respondent - Appellee.

No. 17-13358

United States Court of Appeals, Eleventh Circuit.

August 12, 2020

Arthur J. Madden, III, Madden & Soto, MOBILE, AL, for Petitioner-Appellant.

Christopher John Bodnar, U.S. Attorney Service-Southern District of Alabama, U.S. Attorney's Office, MOBILE, AL, for Respondent-Appellee.

Before ROSENBAUM, BRANCH, and DUBINA, Circuit Judges.

ROSENBAUM, Circuit Judge:

Darned if you do and darned if you don't. That dilemma is nothing new. Indeed, around 800 B.C.E., Homer wrote of the problem in his epic poem The Odyssey. There, the conundrum appeared when Odysseus found himself "caught between the Scylla and Charybdis," a phrase we continue to use today to refer to the darned-if-you-and-darned-if-you-don't scenario.¹

The Supreme Court has also coined a catchphrase for a particular version of this dilemma: "classic penalty situation." Minnesota v. Murphy , 465 U.S. 420, 435, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984). A "classic penalty situation" arises when a person must choose between incriminating himself, on the one hand, or suffering government-threatened punishment for invoking his Fifth Amendment privilege to remain silent, on the other. See id.

But the Supreme Court has also identified a solution to this problem: when a "classic penalty situation" occurs, the Fifth Amendment privilege is self-executing, and the government is deemed to have compelled the speaker's statements in violation of the Fifth Amendment. See id. As a result, the statements are rendered inadmissible in a criminal prosecution. See id .

Petitioner-Appellant Denzil McKathan's habeas petition raises the question of whether, while on supervised release, McKathan faced a "classic penalty situation" when his probation officer asked him to answer questions that would reveal he had committed new crimes. For reasons we explain below, we conclude that he did.

McKathan's attorneys never raised this argument during his criminal proceedings on the newly revealed crimes. Had they done so and on that basis filed a motion to suppress the statements McKathan made and the evidence the government derived from those statements, the government would have had to establish that it nonetheless would have obtained the incriminating evidence against McKathan through other, lawful means. If the government had been unable to do so, it is reasonably likely that McKathan would have prevailed on his suppression motion, and the outcome of McKathan's case would have been different. As a result, McKathan would be entitled to habeas relief upon a showing that his counsel's performance was deficient in failing to raise this argument. But because the current record lacks information concerning whether the evidence derived from McKathan's statements otherwise would have been admissible, we vacate the district court's denial of McKathan's 28 U.S.C. § 2255 motion and remand for further proceedings consistent with this opinion.

I.

To understand the issue in this case, we must review the facts of four events: (1) McKathan's 2005 conviction for possession of child pornography; (2) McKathan's 2014 violation of his supervised-release term that was imposed as a result of his 2005 conviction; (3) McKathan's 2014 conviction for receipt of child pornography; and (4) McKathan's 28 U.S.C. § 2255 motion to set aside his 2014 conviction for receipt of child pornography. Below, we review the facts of each of these events.

A. McKathan's 2005 Conviction for Possession of Child Pornography

In 2005, McKathan pled guilty to possessing child pornography, in violation of 18 U.S.C § 2252A(a). United States v. McKathan , Case No. 1:05-cr-00094-CG (S.D. Ala. 2005) ("McKathan I " or "2005 Case"). The district court sentenced him to 27 months’ imprisonment, plus a lifetime term of supervised release.

Once McKathan completed his prison term in 2007, he began living under the terms of his supervised release. One of those terms required McKathan "to answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer." Another allowed his probation officer to conduct reasonable searches of McKathan's residence—including of his electronic devices, since McKathan had also agreed to forgo using a computer with internet access. McKathan's terms of release informed him that if he violated his supervised release, the court could revoke his supervised release and send him back to prison.

B. McKathan's 2014 Violation of his Supervised Release

In September 2014, McKathan's probation officer, Rafael Goodwin, Jr., became concerned with McKathan. Goodwin had conducted a Facebook search on all sex offenders under his supervision and learned that someone had opened a Facebook account in McKathan's name, in September 2014, using an Android mobile device. Because McKathan's terms prohibited him from using a computer with access to the internet without Goodwin's permission, on September 19, 2014, Goodwin paid McKathan a surprise visit at his apartment to investigate.

When Goodwin walked into McKathan's apartment, he spotted an Android phone on the bed. Upon seeing it, Goodwin asked McKathan if he recently obtained a new phone. McKathan responded that he had had the same phone for some time. Then Goodwin wanted to know whether the phone could access the internet. McKathan conceded that it could. Goodwin examined the phone. Discovering its contents to be protected by a personal identification number ("PIN"), Goodwin instructed McKathan to enter his PIN to unlock the phone, and McKathan complied.

Once Goodwin had access, he explored McKathan's phone. He found that McKathan was using a mobile application for Facebook. Goodwin asked about McKathan's Facebook use, and McKathan admitted the account Goodwin had found was his. When Goodwin examined the account, he found no inappropriate content on it.

But then Goodwin reviewed McKathan's phone's internet browser history. The browsing history reflected that somebody had visited sites with terms such as "preteen" and "sexy lil girls." Upon seeing this, Goodwin asked McKathan whether he had been viewing child pornography. McKathan conceded he had. So Goodwin confiscated the phone and instructed McKathan to report to Goodwin on September 22, 2014. At Goodwin's request, McKathan also provided him with the PIN itself.

Goodwin took McKathan's phone back to the Probation Office, where he "more thorough[ly] inspect[ed]" it. He found downloaded images of child pornography.

When McKathan checked in with Goodwin on September 22, Goodwin gave McKathan a blank affidavit form and instructed him to write, consistent with McKathan's admissions to Goodwin on September 19, that he had been using his phone to access the internet for a year, and it was the only means he had used to access child pornography. McKathan did as instructed.

The district court then held a hearing to determine whether McKathan's supervised release should be revoked. At this hearing, Christopher Knight represented McKathan. Goodwin testified, describing his Facebook search, the evidence he obtained from accessing McKathan's phone, and McKathan's subsequent admissions. After hearing Goodwin's testimony, the court revoked McKathan's supervised release and sent him back to prison, to be followed by a reimposed term of supervised release for life, with the same conditions that had been imposed in McKathan's 2005 Case. We refer in this opinion to the events leading to and resulting in the revocation of McKathan's supervised release as the "Supervised-release Proceedings."

C. McKathan's 2014 Conviction for Receipt of Child Pornography

That, however, was not the end of the story. Goodwin had provided the U.S. Attorney's Office with a copy of images he had found on McKathan's phone. He had also turned McKathan's phone over to the Department of Homeland Security, so its agents could seek a search warrant, relying on Goodwin's investigation. Based entirely on what Goodwin told the Homeland Security agents, they procured a warrant for the phone. The agents used the PIN McKathan provided to Goodwin to access the phone and then imaged and searched it. The search revealed that McKathan had downloaded images of child pornography.

In November 2014, a federal grand jury charged McKathan with three counts of knowingly receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) (Counts One to Three), and one count of knowingly possessing material containing an image of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count Four). United States v. McKathan , Case No. 1:14-cr-00290 (S.D. Ala. 2014) ("McKathan II " or "2014 Case"). Since Knight was familiar with the case from the revocation hearing, the court appointed him to represent McKathan on the new charges.

But McKathan soon filed a pro se motion requesting that the court appoint him new counsel. Contrary to McKathan's desire, Knight did not want to file a motion to suppress challenging whether Goodwin's search was lawful under the Fourth Amendment. The district court granted McKathan's motion and appointed Cindy Powell.

Soon after Powell was appointed, McKathan filed a pro se motion to suppress "(1) any and all evidence seized as a result of any search and/or seizure and the fruits of any search and/or seizure, [and] (2) any and all written and/or oral statements taken from me and the fruits of any such statements." Three days later, Powell filed an amended motion to suppress on behalf of McKathan. Although the amended motion stated that McKathan sought suppression "pursuant to the 4th, 5th, and 6th Amendments of the U.S. Constitution," it set forth only a Fourth Amendment argument, asserting that the government had obtained McKathan's statements and the fruits of the browser-history search through an illegal search that violated the Fourth Amendment.

During the hearing on the suppression motion, defense counsel argued only that...