United States v. Carpentino

• Decision Date: 17 January 2020
• Docket Number: No. 18-1969,18-1969
• Citation: 948 F.3d 10
• Parties: UNITED STATES of America, Appellee, v. Kurt CARPENTINO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

948 F.3d 10

UNITED STATES of America, Appellee,

v.Kurt CARPENTINO, Defendant, Appellant.

No. 18-1969

United States Court of Appeals, First Circuit.

January 17, 2020

Robert F. Hennessy, Springfield, MA, with whom Schnipper Hennessy, PC was on brief, for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief, for appellee.

Before Lynch, Selya, and Lipez, Circuit Judges.

SELYA, Circuit Judge.

Suspecting that defendant-appellant Kurt Carpentino had transported an underage girl across state lines for immoral purposes, a Vermont state trooper took him into custody. An interview at a Vermont State Police (VSP) barracks later that day ended abruptly when the defendant asked to call a lawyer and was immediately returned to a holding cell. Forty minutes later, the defendant sought to speak with the troopers again, and the interview resumed. This time, the defendant confessed.

After the defendant was charged federally, he beseeched the district court to suppress the confession made during the second phase of his custodial interrogation. In support, he maintained that the interrogation had proceeded in derogation of his Fifth Amendment rights as explicated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). In a thoughtful rescript, the district court denied the defendant's motion.

Following a jury trial that culminated in a conviction and the imposition of a lengthy prison sentence, the defendant appeals. He challenges only the denial of his motion to suppress. The district court's denial of his motion to suppress rested on three related findings: that the defendant initiated the second phase of the interview, that he did not thereafter reinvoke his right to counsel, and that he knowingly and voluntarily waived his Miranda rights before confessing. After careful consideration, we conclude that all of these findings pass muster. Accordingly, we affirm.

I. BACKGROUND

We rehearse the facts as supportably found by the district court following the suppression hearing. See United States v. Coombs, 857 F.3d 439, 443 (1st Cir. 2017) ; see also United States v. Carpentino, No. 17-cr-157-PB, 2018 WL 2768656, at *1-2 (D.N.H. June 8, 2018).

Around 8:00 a.m. on April 27, 2017, a VSP trooper received a call informing him that M.H., a fourteen-year-old girl from New Hampshire, was missing. The call directed him to proceed to an abandoned motel in Rockingham, Vermont. Upon arrival, the trooper learned that a search party had spotted M.H. near the motel in the company of a man. The search party suspected that the unknown man was the defendant: he was the landlord of the premises in which M.H. was living, and his family owned the motel near where M.H. had been seen.

The trooper issued a dispatch asking other law enforcement personnel in the area to look out for the defendant's vehicle. A local police officer stopped the defendant's vehicle shortly after 9:00 a.m. The officer, along with others (including the trooper), detained the defendant on the side of the road and questioned him about M.H.'s whereabouts.

In the meantime, the search party located M.H., who reported that she had been kidnapped and assaulted. The trooper received this news around 9:50 a.m., arrested the defendant, and took him to a nearby barracks.

At 12:56 p.m., two troopers assigned to the investigations unit brought the defendant to an interview room. The troopers advised the defendant of his Miranda rights, and the defendant signed a waiver form. He proceeded to tell the troopers that he had driven alone from New Hampshire into Vermont the night before. The troopers challenged the defendant's truthfulness, explaining that they were collecting evidence that would likely prove his story false. At that point, the defendant said that he wanted to end the interview and talk to his lawyer. The troopers immediately ceased their questioning and, at 1:49 p.m., returned him to the holding cell. On the way to the cell, the defendant asked to place a telephone call to his lawyer. The troopers said he could do so. Notwithstanding this assurance, the troopers did not give the defendant access to a telephone.

Approximately forty minutes after being returned to his cell and before he was given access to a telephone, the defendant waved at a camera to get a guard's attention. When the guard approached the cell, the defendant asked to talk to the troopers who had previously interviewed him. The troopers came to the defendant's cell, confirmed that he wished to speak with them, and brought him back to the interview room.

The following conversation ensued, all of which was recorded:

Trooper 2: I'll get you another glass [of water], and then we have to re-Mirandize you because we brought you back in.

Defendant: How much, would, uhm, the maximum time be for something like this?

Trooper 1: I'd have to look. You know, I don't .... I know a lot, but I don't know a lot of details, so I'm not sure.

Defendant: Alright. Uhm ...

Trooper 1: Let me just get past this first, the administrative part. So I'm just, because we gotta go over these again. You've come to us saying "Hey, I want to talk to you again." Correct?

Defendant: Yeah, because, uhm, one of the things that the officer said that, uhm ... once I was done talking with you was that if [sic] was up to you if I could have a phone call to my lawyer.

Trooper 1: Well is that what you're looking for, is a phone call to your lawyer or do you want to talk to us again?

Defendant: Uhm, I kinda need a phone call to my lawyer, too. I need to let somebody know that I'm here.

Trooper 2: Here you go Kurt.

Defendant: Thank you.

Trooper 1: I mean, if you want to talk to an attorney, then I can't talk to you. We can't talk to you.

Defendant: Alright.

Trooper 1: My understanding is that you indicated to somebody that you wanted to speak to us again.

Trooper 2: Is that true, or ...?

Trooper 1: Is that what you wanna do or do you want to talk to an attorney?

Defendant: I don't know. Just ... I fucked myself.

Trooper 2: Well, you know us. We're just looking for the truth. That's all we're looking for.

Defendant: Yeah.

(Long pause)

Defendant: I should probably start from the beginning.

Trooper 2: Yeah, yeah, but we gotta get through the Miranda first.

Trooper 1: And Kurt, I have to make sure that we're clear on this. You want to talk to us.

Defendant: Yeah.

Trooper 1: Okay. To do that, I have to re-go through that whole Miranda thing again. And if you want me to, I will. You made mention about calling a lawyer. If that's what you want, then we can do that, too. But I can't do both. I can do one or the other.

Defendant: I can talk with you with a lawyer, right?

Trooper 1: You can, but usually that doesn't happen.

Defendant: Okay.

Trooper 1: But it's up to you. I just want you, I want to be clear with you. I don't want ...

Trooper 2: Make sure that it's clear that it's your choice.

Trooper 1: Yeah, you don't have to talk to us.

Trooper 2: You're in control here, well, I mean as far as ...

Trooper 1: As far as talking to us.

Trooper 2: Right.

Defendant: Yeah. I'll talk.

Trooper 1: You'll talk to us.

Defendant: I'll talk.

Trooper 1: Ok. I'm going to go through these again for you. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer before questioning and have a lawyer present with you during any questioning. If you cannot afford to hire a lawyer, one will be appointed to represent you at public expense before any questioning, if you wish. In Vermont, that's called a public defender. If you decide to answer questions, you can stop the questioning at any time. Do you understand each of these rights I've explained to you?

Defendant: Yes.

Trooper 1: Do you want to talk to me now?

Defendant: Fuck. I don't know. I'm scared. I don't know what's going on. Yeah, I'll talk. I just ... I don't know how long, like, I'd be stuck here. Like, is there like an arraignment or something?

Trooper 1: Yeah. I'll explain all that. That's no big deal. Can I just get through this?

Defendant: Am I ready to talk to you, right?

Trooper 2: What's that?

Defendant: We're at "am I ready to talk ...," "am I willing to talk to you?"

Trooper 2: Yeah.

Trooper 1: Mmm Hmm. Yes. I'm going to read you the waiver again. It says "I have been advised that I have the right to remain silent, to be represented by a lawyer and to talk with one prior to questioning and to have one present during questioning. Knowing my rights, I agree to waive them and talk to you now. No threats or promises have been made to me." Do you understand all that?

Defendant: I understand.

Trooper 1: What time you got? This is the same thing I read to you before. If you agree to it, feel free to read it.

At 3:03 p.m., the defendant signed a second Miranda waiver. The troopers resumed the interview and, about thirty minutes later, the defendant confessed to driving M.H. from New Hampshire to Vermont and having sex with her in Vermont.

On October 4, 2017, a federal grand jury sitting in the District of New Hampshire returned a four-count indictment against the defendant. Early in the proceedings, the government voluntarily dismissed three of the counts. This left only the charge of interstate transportation of a minor with intent to engage in criminal sexual activity. See 18 U.S.C. § 2423(a).

In advance of trial, the defendant moved to suppress his confession on the ground that the second phase of the interview transpired in violation of his Miranda rights.¹ The district court held an evidentiary hearing and denied the motion to suppress. The court concluded that, although the defendant had invoked his right to counsel during the first phase of the interview, he subsequently initiated an investigation-related conversation with the troopers; that the defendant did not unambiguously reinvoke his right to counsel during the second phase...