United States v. Hashime, 12–5039.

• Decision Date: 29 October 2013
• Docket Number: No. 12–5039.,12–5039.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Faisal HASHIME, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

734 F.3d 278

UNITED STATES of America, Plaintiff–Appellee,

v.Faisal HASHIME, Defendant–Appellant.

No. 12–5039.

United States Court of Appeals,Fourth Circuit.

Argued: Sept. 20, 2013.

Decided: Oct. 29, 2013.

ARGUED:Jonathan Shapiro, Peter D. Greenspun, Greenspun Shapiro PC, Fairfax, Virginia, for Appellant. Maureen Catherine Cain, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Mikhail N. Lopez, Greenspun Shapiro PC, Fairfax, Virginia, for Appellant. Alexander T.H. Nguyen, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

Before WILKINSON, KING, and WYNN, Circuit Judges.

Reversed and remanded by published opinion. Judge Wilkinson wrote the opinion, in which Judge King and Judge Wynn joined. Judge King wrote a separate concurring opinion.

WILKINSON, Circuit Judge:

The day after his twentieth birthday, Faisal Hashime was convicted of multiple counts related to child pornography and later sentenced to fifteen years in prison. Hashime made numerous self-incriminating statements while being interrogated by law-enforcement agents during a search of his home. Because the agents did not read Hashime his Miranda rights until well into what was plainly an extended custodial interrogation, we reverse Hashime's conviction and remand for further proceedings consistent with this decision.

I.

A.

In November 2010, while monitoring a website used to exchange child pornography, a law-enforcement agent with Immigration and Customs Enforcement's Homeland Security Investigations unit (HSI) discovered a naked picture of a minor boy with the caption “Email me, t. campbell 2011@ gmail. com.” In July 2011, the agent sent an email to the t. campbell 2011@ gmail. com address, asking to trade child-pornography images. The agent eventually received twenty-four explicit pictures of a naked boy. By tracing the email account's associated IP address, HSI concluded that the account was being used by someone in the Hashime family home.

Based on this information, law enforcement obtained and executed search warrants on both the t. campbell 2011@ gmail. com email account and Hashime's house. Shortly after 9:00 AM on May 18, 2012, a team of 15–30 state and federal law-enforcement agents equipped with a battering ram descended on Hashime's home. Hashime, at the time a 19–year–old community-college student, lived with his parents in suburban northern Virginia. The agents banged on the entrance, yelling “Open the door.”

After being let in by Hashime's aunt, the officers streamed into the house with their guns drawn. An officer entered Hashime's bedroom and pointed a gun at him. Hashime was in bed, naked and asleep, having gone to bed at 5 AM that morning. The officer ordered Hashime to “Get up.... Get out of bed,” and instructed Hashime to show his hands. After Hashime put on boxer shorts, the officer held Hashime by the arm, issuing orders to him, and marched him out to the front lawn, where officers were corralling the other members of his family. Despite the chilly weather, the Hashime family members were kept outside, several of them dressed only in their nightclothes.

When law enforcement eventually allowed Hashime and his family back into their house, they were kept in the living room while the officers completed their sweep of the home. Hashime was not allowed to go to the bathroom until the officers had “clear[ed] it out.” Hashime was given his clothes but was not provided with shoes or socks. Hashime's mother, who was recovering from recent brain surgery, and about whose health Hashime was concerned, asked to lie down for health reasons but was not allowed to. The Hashime family members were not permitted to be alone and were instructed that they had to be accompanied by officers at all times. The law-enforcement agents proceeded to interrogate each of them individually.

Hashime was escorted by two officers to the basement for interrogation. The basement was finished, but the officers chose to interrogate Hashime in a room that was being used as a storage area. Hashime's family was not allowed to see Hashime until the three-hour interrogation was over. Hashime's mother asked the officers three times for an attorney for Hashime, but was told that he was being questioned and that she could not see him or otherwise interrupt the interrogation. According to Hashime's mother, the officers told her that Hashime was under arrest.

The officers secretly recorded the interrogation. When Hashime asked them if they were recording it, the lead interrogator, who was not carrying the recording device, told Hashime, “I can tell you I don't have a recorder on....” During the interrogation, Hashime admitted to having child pornography on his computer and told the officers in great detail about how he had obtained the photographs. Hashime also gave the officers the password to his computer and told them where the child-pornography images were located on his hard drive.

At the beginning of the interview, the officers told Hashime that he did not have to answer their questions and could leave at any time. However, at one point in the interrogation, one of the officers told Hashime, “I need to know, and I need you to be completely honest with me here even if you're afraid, I don't care if you say I don't want to answer that or I'm afraid to answer it, but I need to know the truth.” JA 585. In addition, when one of the interrogators left Hashime to go upstairs, he told Hashime, “[L]ike I said at the beginning, the search warrant we got to kind of keep an eye on you.... I can't leave you here with nobody here.” JA 617–18.

The officers did not read Hashime his Miranda rights until over two hours into the interrogation.

B.

Hashime was arrested three days after the interrogation. In July 2012 he was indicted on seven counts of production, distribution, receipt, and possession of child pornography in violation of 18 U.S.C. §§ 2251 and 2252.

Prior to trial, Hashime moved to suppress the statements he made to the law-enforcement agents during the interrogation on the grounds that he was in custody at the time and did not receive the required Miranda warning at the beginning of the interrogation. The district court rejected this motion, emphasizing Hashime's demeanor and tone during his interrogation, his general familiarity with law-enforcement practices, and his apparent lack of concern with any imminent arrest. The court relied in particular on the recording of the interrogation, stating that “were it not for the tape, I think you'd [Hashime] win your case.” JA 125–26. The court noted that “the voice of the defendant ... expressed no kind of hesitation, no nervousness” and that the evidence of Hashime's “forthcoming-ness” was “powerful.” JA 126. The court concluded that Hashime “was free to leave and ... believed himself to be free to leave.” JA 129.

Hashime pled guilty to the receipt and possession charges, the former of which carried a mandatory minimum of five years in prison and a maximum sentence of twenty years. The government nevertheless chose to also prosecute Hashime on the production and distribution charges.

At the bench trial, multiple minors testified about their contacts with Hashime. Together with Hashime's statements during the interrogation, this evidence established Hashime's pattern of behavior: he would pose as an attractive teenage girl named Tracy and make contact with boys on websites used for anonymous chatting or through direct email communication. Hashime would offer—in many cases successfully—to trade nude pictures of Tracy for nude pictures of the boys. On occasion, he redistributed the pictures he obtained. The court found Hashime guilty of the production and distribution counts.

Prior to sentencing, Hashime moved to strike the mandatory-minimum sentences applicable to him on the ground that they violated the Eighth Amendment. The district court denied the motion, finding proportionality review unavailable for a sentence less than life imprisonment without the possibility of parole.

At sentencing, the district court rejected the government's request for a thirty-year sentence as “way more than would be appropriate.” JA 451. The district court emphasized Hashime's youth and immaturity, and instead sentenced him to a fifteen-year sentence—the mandatory-minimum fifteen-year sentences for the production charges, and a combination of mandatory and non-mandatory five-year sentences on the other charges, all to run concurrently—followed by twenty years of supervised release.

II.

Hashime first argues that his conviction should be reversed because law-enforcement agents failed to read him his Miranda rights at the beginning of the interrogation. “We review the factual findings underlying a motion to suppress for clear error and the district court's legal determinations de novo. When a suppression motion has been denied, this Court reviews the evidence in the light most favorable to the government.” United States v. Davis, 690 F.3d 226, 233 (4th Cir.2012) (citations omitted).

A.

The Fifth Amendment provides that “No person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. As a prophylactic safeguard for this constitutional guarantee, the Supreme Court has required law enforcement to inform individuals who are in custody of their Fifth Amendment rights prior to interrogation. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Parker, 262 F.3d 415, 419 (4th Cir.2001). Without a Miranda warning, evidence obtained from the interrogation is generally inadmissible. See id.; see also United States v. Hargrove, 625 F.3d 170, 177 (4th Cir.2010).

When deciding whether a defendant not under formal arrest was in custody—and thus if the Miranda requirements apply—a court asks whether, “under the totality of the circumstances, ‘a suspect's freedom of action [was]...