F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 23 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 03-1242
CHRISTOPHER LEE RAMBO,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 03-CR-14-N)
Lynn Hartfield, Assistant Federal Public Defender (Michael G. Katz, former
Federal Public Defender; Raymond P. Moore, present Federal Public Defender;
and Scott Varholak, Assistant Federal Public Defender, on the briefs), Denver,
Colorado, for Defendant-Appellant.
James C. Murphy, Assistant U. S. Attorney (John W. Suthers, United States
Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.
Before HENRY, BALDOCK, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
I. INTRODUCTION
Defendant Christopher Lee Rambo was taken into custody because the
police received information that he was involved with two armed robberies in
Greeley, Colorado. Greeley Police Officer Michael Moran interviewed Rambo
and Rambo eventually confessed to his role in the robberies. Rambo was charged
with two counts of robbery affecting commerce in violation of 18 U.S.C. §
1951(a), two counts of using a firearm in furtherance of a crime of violence in
violation of 18 U.S.C. § 924(c), and one count for being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). Rambo moved to suppress his
confession on the grounds that it had been obtained in violation of his Fifth
Amendment right against self-incrimination. The district court denied the motion.
Rambo pleaded guilty to the two 18 U.S.C. § 924(c) charges, but under his plea
agreement with the government he retained his right to appeal the district court’s
decision concerning his motion to suppress. See Fed. R. Crim. P. 11(a)(2). This
court has jurisdiction pursuant to 28 U.S.C. § 1291. Because we conclude the
police failed to honor Rambo’s request to terminate the interrogation, we reverse
and remand.
II. BACKGROUND
Rambo was taken into custody in connection with two armed robberies.
Officer Moran was investigating the robberies and he interviewed Rambo’s
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suspected accomplice, Stacey Hinshaw. After his interview with Hinshaw, Moran
conducted a videotaped interview with Rambo. On the videotape, Rambo can be
seen seated in an interrogation room with his wrists and legs loosely bound,
allowing him some freedom of movement. Moran is seated facing Rambo. The
following reflects the exchange between Rambo and Moran. 1
Moran: Responsibility is going to get spread around the table
here, ok.
Rambo: [unintelligible]
Moran: Not one hundred percent of it is falling down on your
shoulders. But a lot of it’s gonna be. You know where the
responsibility lies. Y’know, we’ve been through this before, y’know.
Like I just told Stacey, y’know, I don’t want to put more on her
shoulders than actually, y’know, needs to be there, y’know. I’m not
gonna hit her with stuff that she’s not responsible for doing. But I am
going to charge her for the stuff that she is responsible for.
Rambo: What’s she getting charged for?
Moran: She’s getting charged with two aggravated, er, yeah, two
aggravated robberies.
1
The transcription set out here begins with a short exchange which cannot
be heard on two of the copies of the tape submitted on appeal, but can be heard on
the videotape which appears to have been submitted to the district court.
3
Rambo: Is she gonna get released, or is she staying in jail?
Moran: I don’t know. [pause] You know if you want to talk to
me about this stuff, that’s fine.
Rambo: I was trying to get a feel for what’s going on with her
and her kids and stuff. [unintelligible]
Moran: There’s a lotta stuff that’s gonna go down with her in
the next couple of days. I don’t know exactly what’s going to happen
with her and her kids.
Rambo: She gonna get released tonight?
Moran: I doubt it. [pause] Do you want to talk to me about this
stuff?
Rambo: No. [silence]
Moran: You don’t? [pause] OK. [long pause] That’s fine.
[pause] But that’s what you’re getting charged with.
Rambo: Alright.
Moran: OK?
Rambo: Alright.
Moran: And there’s gonna be some other agencies that are
gonna (unintelligible) . . . too. Some stuff —
Rambo: And I’m gonna stay here?
Moran: You know that. You don’t need me to tell you that.
4
Rambo: There’s a lotta shit that I don’t know . . . . There’s a
lotta shit that I wasn’t involved with —
Moran: If you think back over the last two months since you’ve
been out of prison, all the shit you’ve been involved in. Think about
this. Think about the towns that are going to want to talk to you ok? Or
that have stuff on you.
Rambo: Like the Suburban, for instance. I didn’t know it was
stolen. I thought it was Stacey’s car, you know. She had the keys and
everything.
Moran: We can talk about it if you want to talk about it.
Rambo: I didn’t know whether I was —
Moran: Did these guys (gesturing backwards) advise you of your
Miranda?
Rambo: Yes.
Moran: The warning?
Rambo: Yes. I refused to sign anything. (unintelligible) trippin’
on. We were just talking about other stuff. All that stuff that went
down, I don’t know, some of the stuff that I know that was going on,
you know . . . you know coupon stuff, pawn stuff. I didn’t pawn
anything, you know . . . that’s my girlfriend, so I went with her.
5
Moran: Before we get into this stuff, Chris, I gotta know if you
want to talk to me, you know what I’m saying? I can’t sit here and talk
with you like this if you don’t want to talk to me. So do you want to
talk to me?
Rambo: That’s what I understand . . .
Moran then informed Rambo of his Miranda rights and Rambo eventually
confessed that he had been an active participant in the two robberies.
After viewing the videotape and hearing argument from counsel, the district
court concluded that Rambo’s statement was admissible because Rambo was not
under interrogation prior to receiving the Miranda warnings from Moran. 2
III. DISCUSSION
In reviewing the district court’s denial of a motion to suppress, we consider
the evidence in a light most favorable to the government and accept the district
court’s factual findings unless they are clearly erroneous. United States v.
Glover, 104 F.3d 1570, 1576 (10th Cir. 1997). We review conclusions of law de
novo. Id.
Rambo claims that his confession should have been suppressed because it
We admonish defense counsel for failure to adhere to 10th Cir. R.
2
28.2(A)(2) which requires that he attach to appellant’s brief a copy of the
transcript pages containing the district court’s order denying appellant’s
suppression motion.
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was obtained in violation of the procedural protections set down by the Supreme
Court in Miranda and its progeny. For the protections of Miranda to apply,
custodial interrogation must be imminent or presently occurring. United States v.
Bautista, 145 F.3d 1140, 1147 & n.3 (10th Cir. 1998). The government argues
that the district court was correct to conclude that Rambo was not under
interrogation prior to Officer Moran’s recitation of the Miranda warnings. We
disagree.
While the district court concluded that the lack of questions indicated there
was no interrogation by Moran, the use of questions is not required to show that
interrogation occurred. In Rhode Island v. Innis, the Supreme Court held that
interrogation encompasses not only questioning but “any words or actions on the
part of the police (other than those normally attendant to arrest and custody) that
the police should know are reasonably likely to elicit an incriminating response
from the suspect.” 446 U.S. 291, 301 (1980) (footnote omitted). The test of
whether an interrogation has occurred is an objective one. United States v. Gay,
774 F.2d 368, 379 n.22 (10th Cir. 1985). The focus is on the perceptions of a
reasonable person in the suspect’s position rather than the intent of the
investigating officer. Innis, 446 U.S. at 301.
The portion of the interview available on videotape opens with Moran
informing Rambo that much of the blame will fall on Rambo’s shoulders. As the
7
Supreme Court has recognized, one of the techniques used by police during
interrogation is to “posit the guilt of the subject.” Innis, 446 U.S. at 299
(quotations omitted). The Court concluded it was “clear that these techniques of
persuasion, no less than express questioning, were thought, in a custodial setting,
to amount to interrogation.” Id. Thus, Moran’s first comments are an example of
interrogation explicitly recognized by the Supreme Court. Moreover, other
questions and comments recorded on the videotape support the conclusion that
Rambo was under interrogation.
Given the context, Moran’s comment “if you want to talk to me about this
stuff, that’s fine,” is fairly understood as an attempt to refocus the discussion on
the robberies. Moran reiterates this invitation four times during the course of the
interview. These repeated attempts to discuss the crime under investigation were
reasonably likely to produce an incriminating response.
While the government claims that Moran’s only goal was to obtain a waiver
of the right to remain silent, that assertion ignores the appropriate test for
determining if an interrogation occurred. 3 It is true that an investigating officer’s
3
The government also argues that the district court found that “[Moran] on
the tape is obviously trying to avoid a situation where the defendant talks or says
things without being Mirandized.” The government’s reliance on this finding,
however, is misplaced. As noted above, Moran’s intent is not controlling. If
anything, Moran’s concern about un-Mirandized statements would seem to
indicate an awareness that his interview with Rambo was likely to produce
incriminating information.
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intention may be relevant, but it is the objectively measured tendency of an action
to elicit an incriminating response which is ultimately determinative. Innis, 443
U.S. at 301 & n.7. As we have described above, Moran’s interaction with Rambo
was reasonably likely to produce incriminating information and, therefore, Rambo
was under interrogation.
Because Rambo was under custodial interrogation, the procedural
protections of Miranda apply. The government argues, however, that Moran was
not required to cut off the interrogation because Rambo failed to unequivocally
invoke his right to remain silent.
In the relevant exchange, Moran asked Rambo, “[D]o you want to talk to
me about this stuff?” Given Moran’s earlier comments, it is clear that he is
referring to the robberies. In response to Moran’s question, Rambo says, “No.”
In order to determine if a suspect invoked the right to remain silent, we examine
the entire context of the relevant statement for a clear and unambiguous assertion
of the right to remain silent. See United States v. Johnson, 56 F.3d 947, 955 (8th
Cir. 1995). Under the circumstances of this case, Rambo’s refusal to discuss the
robberies was a clear and unambiguous invocation of his right to remain silent.
The government asserts that Rambo’s statement was ambiguous in the
context of the ongoing discussion because Rambo failed to state that he did not
want to speak with any officer and never requested an attorney. That Rambo did
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not request an attorney is certainly irrelevant to the question of whether he
invoked his right to remain silent. Although the context and nuances of a request
to end questioning can create ambiguity, they cannot overcome a clear expression
of the desire to remain silent. See United States v. March, 999 F.2d 456, 460
(10th Cir. 1993) (stating that interpretation of whether the defendant invoked his
right to counsel is “only required where the defendant’s words, understood as
ordinary people would understand them, are ambiguous.” (quotation omitted)). In
this case, Moran asked Rambo if he wanted to discuss the “stuff,” i.e. the
robberies, and Rambo said “No.” There is no nuance nor context to vary the
unequivocal meaning of Rambo’s single word, monosyllabic response. His
response, “No,” could only mean an invocation of his right to remain silent.
If Rambo invoked his right to remain silent and Moran failed to
“scrupulously honor[]” that right, Rambo’s confession must be suppressed. 4
Michigan v. Mosley, 423 U.S. 96, 103 (1975) (quotation omitted). In United
4
The Government asserts that Rambo failed to argue below that his right to
remain silent was not scrupulously honored and that the district court failed to
make the relevant findings of fact. Both assertions are incorrect. As Rambo
notes, his counsel did argue that Moran violated Rambo’s constitutional rights by
continuing the interrogation after Rambo had refused to discuss the robberies.
Likewise, the district court noted that Rambo had invoked his right to silence. In
ruling on the motion to suppress the district court stated, “I know of no case that
holds that once a suspect says that he doesn’t want to talk, the investigator is
required to walk away and zip his lip.” The court’s comment concerning a
suspect invoking the right to remain silent can, given the context, only refer to
Rambo’s refusal to discuss the robberies. Indeed, government counsel below
likewise referred to Rambo’s “no” as the relevant word.
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States v. Glover, we discussed the factors articulated in Mosley to determine
whether the police may reinitiate interrogation after the right to remain silent has
been invoked:
[O]fficers can reinitiate questioning only if: (1) at the time the
defendant invoked his right to remain silent, the questioning ceased;
(2) a substantial interval passed before the second interrogation; (3)
the defendant was given a fresh set of Miranda warnings; (4) the
subject of the second interrogation was unrelated to the first.
104 F.3d at 1580. 5 In Mosley, the Supreme Court noted that the “critical
safeguard” associated with the right to remain silent in Miranda was the “right to
cut off questioning.” 423 U.S. at 103 (quotation omitted).
The government contends that it was Rambo who reinitiated communication
after invoking his right to remain silent and, therefore, Moran was not required to
terminate the interview. That argument ignores Moran’s active role in continuing
the interview after Rambo invoked his rights. When Rambo stated that he did not
want to discuss the robberies, Moran made no move to end the encounter. Instead
he acknowledged Rambo’s request, but told Rambo that he would be charged with
two aggravated robberies and that other agencies would want to speak with
Rambo. Those comments reflect both further pressure on Rambo to discuss the
5
We recognize that other courts of appeals have concluded that there is no
definite time police must forego questioning and that police may return to the
original subject of interrogation. See, e.g., United States v. Hsu, 852 F.2d 407,
410-11 (4th Cir. 1998). We decline to take up these questions because we
conclude that the most essential requirement, the cessation of interrogation, did
not occur in this case.
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crimes and a suggestion that despite Rambo’s present request to terminate
discussion of the topic, he would be questioned further.
Whatever else Mosley might require, it is clear that some break in the
interrogation must occur. See Mosley, 423 U.S. at 102 (concluding that once the
right to silence has been invoked allowing the resumption of an interrogation after
only a momentary break would “lead to absurd and unintended results”). Thus,
we conclude that Moran failed to scrupulously honor Rambo’s right to remain
silent and, therefore, Rambo’s confession must be suppressed.
IV. CONCLUSION
For the foregoing reasons, this court reverses the denial of the motion to
suppress, and remands so that the district court may vacate the plea agreement
upon proper motion.
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