In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2698
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JERMAINE L. L EE,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 08 CR 10030—Michael M. Mihm, Judge.
A RGUED A PRIL 12, 2010—D ECIDED A UGUST 20, 2010
Before C UDAHY, P OSNER, and E VANS, Circuit Judges.
C UDAHY, Circuit Judge. On April 4, 2008, Jermaine
Lee was arrested on charges of conspiracy to distribute
crack cocaine, distribution of crack cocaine and posses-
sion with intent to distribute crack cocaine. Approxi-
mately six hours after being brought into custody, three
police officers, who had just conducted a search of a co-
defendant’s house, interviewed Lee from 12:05 a.m. until
1:28 a.m. The officers began the interview by asking
questions from a personal-history report, which con-
2 No. 09-2698
sisted of two pages. The first page contained information
about Lee’s nicknames, recent addresses, height, weight
and social-security number. Sergeant Brian Gorsuch, one
of the interrogating officers, asked Lee all of the questions
from this page and filled in answers for each one. To
this first page, Gorsuch also added that Lee was a
member of the Gangster Disciples street gang. The sec-
ond page consisted of questions about marital status,
parents, siblings, children, military experience, out-
standing loans, as well as prior arrests, drug usage,
drugs associates and sources of income. Save for some
biographical information on Lee’s children, it would
seem that the answers on this page were left blank.
Having filled out the noted portions of the personal-
history report, the officers read Lee his Miranda rights.
Lee signed a Miranda waiver and then proceeded largely
to cooperate with the officers by answering most of
their questions.
During the interview, Lee made several incriminating
statements. Having contemplated the prudence of his
confession in the minutes following the end of the inter-
view, Lee wrote a letter to Gorsuch. In that note, Lee
stated that he had admitted to things he had not done
and wished to take back everything he had said. Prior to
trial, Lee filed a motion to suppress the incriminating
statements, alleging that the statements were made
in violation of his constitutional rights. Specifically, Lee
alleged that the government failed to show that Lee
understood his Miranda rights upon signing the
Miranda waiver, that the officers had coerced him into
providing incriminating statements and that the officers
had conducted an illegal two-step interrogation proce-
No. 09-2698 3
dure, which rendered his Miranda rights ineffective.
The district court denied Lee’s motion to suppress.
Following a bench trial, Lee was found guilty on all
counts. Lee appeals his conviction, arguing that the
district court erred, first, in finding that he had effec-
tively waived his constitutional rights; second, in deter-
mining that his statements to the police were voluntary
and; third, in refusing to grant his motion to suppress
the statements he had made during his interrogation.
Lee contends that the district court’s alleged errors
were not harmless beyond a reasonable doubt.
We affirm. Assuming arguendo that Lee’s incrim-
inating statements were obtained in violation of his
constitutional rights, the court’s failure to suppress
those statements was harmless beyond a reasonable
doubt. The district judge made clear that his holding
stood regardless whether the incriminating statements
were suppressed. He was emphatic in insisting that the
government had proven its case beyond a reasonable
doubt independent of those statements. Since the
present case involves a bench trial, and because the
district judge’s explicit elucidation forecloses any
realistic prospect that he would have found Lee not
guilty, any error was harmless. In addition, we believe
that the district court was correct in holding that Lee’s
constitutional rights were not violated.
I. BACKGROUND
On April 4, 2008, Lee was arrested on charges
of conspiracy to distribute crack cocaine, distribution
4 No. 09-2698
of crack cocaine and possession with intent to distribute
crack cocaine. Evidence supporting these allegations
consisted of the testimony of several people who were
involved in drug transactions with Lee: Jeffrey Smith
(Lee’s cousin); Clyde White (one of Lee’s co-defendants);
and Bernard Murray, Cathy Lewis and Erin Kempker
(three of Lee’s customers). While working for law en-
forcement, Cathy Lewis sound- and video-recorded
three of the drug transactions that took place between
herself and Lee.
In October 2005, Lee arranged for Smith to establish
a residence in Macomb, Illinois. The residence was to
be used to distribute drugs to several of Lee’s customers
located in Macomb. For several years, Smith worked
on and off for Lee delivering crack cocaine to approxi-
mately seven of Lee’s customers in Macomb and ac-
companying Lee to buy powder cocaine from two sup-
pliers, initially a man named Tony and later Lee’s brother.
Lee also sold crack cocaine directly to several indi-
viduals including Murray, White and Lewis. In spring
2006, Lewis began working for law enforcement as
a confidential informant. In that role, Lewis recorded
three drug sales between herself and Lee occurring on
August 29, 2006, September 27, 2006 and December 4,
2007.1
1
On August 29, 2006, at the direction of law-enforcement
officials, Lewis called “Tamar,” a man already under inves-
tigation, to set up a drug deal. Tamar referred Lewis to Lee.
(continued...)
No. 09-2698 5
Lee’s arrest, which led to the conviction from which
he presently appeals, occurred on April 4, 2008. That
day, White and Kempker bought crack cocaine from
Lee. The three then drove to Good Hope, Illinois, so
Lee could purchase drugs from Terrance Guyton-
Whitler. Guyton-Whitler, while driving alone and
having just sold drugs to Lee, was pulled over by the
police. The police found $1,083 on Guyton-Whitler, as
well as $8,000, a digital scale, 6.3 grams of powder co-
caine and 15.3 grams of crack cocaine in his glove com-
partment. While Guyton-Whitler was at the Sheriff’s
office, Kempker and White smoked the crack that Guyton-
Whitler had sold to Lee. They found that the crack was
bad. Not knowing that Guyton-Whitler was at the
Sheriff’s office, Lee called Guyton-Whitler to fix the
problem. Cooperating with the police, Guyton-Whitler
arranged to meet Lee back in Good Hope. Kempker
agreed to drive him to Good Hope, but before leaving
Kempker’s home, Lee went into a child’s bedroom alone
and exited shortly after. On their way to Good Hope, Lee
and Kempker were pulled over by police officers and
arrested. According to an officer’s testimony, Lee was
(...continued)
Following Lewis’s initial discussion with Lee, the two met in
a parking lot in Macomb where Lewis gave Lee $200 in ex-
change for 2.9 grams of crack. On September 27, 2006, Lewis
purchased 5.8 grams of crack cocaine from Lee for $600. On
December 4, 2007, Lewis met Lee at White’s trailer in
Macomb, where she purchased 3.1 grams of crack cocaine
from him.
6 No. 09-2698
advised of his Miranda rights upon his arrest, and when
asked if he understood those rights, Lee responded that
he did. After questioning Kempker back at the police
station, police officers obtained a warrant to search her
home. There they discovered baking soda, numerous
plastic baggies and a plate with a powdery white sub-
stance in the kitchen. They also found 20.5 grams of
crack cocaine in the closet of a child’s bedroom.
Lee waited in a jail cell until the police officers were
done searching Kempker’s home. At about midnight, the
officers returned and interviewed Lee. To begin the
interview, Lee was asked questions from a two-page
“Personal History Report”—his responses were recorded
in writing by the officers. Apparently, it was typical
procedure for the officers to ask questions from the per-
sonal-history report before giving a Miranda warning. The
first page, which sought information regarding the sus-
pect’s nicknames, recent addresses, height, weight, and
social-security number, was completed in its entirety by
Sergeant Gorsuch. The officer also wrote in Lee’s gang
affiliation. The second page contained questions about
marital status, siblings, children, military experience,
outstanding loans, prior arrests, drug usage, drug associ-
ates and various sources of money. Although this page
is not part of the record presently before us, Lee’s attor-
ney announced in a hearing that the page was left
blank except for biographical information concerning
Lee’s children.
Having filled out the noted portions of the personal-
history report, Gorsuch read Lee his Miranda rights. The
No. 09-2698 7
officer did not recall reading aloud the line on the form
that states: “I understand my rights and am willing to
answer questions.” Gorsuch then filled in Lee’s name,
marked an “X” where Lee needed to sign and asked Lee
if he would sign the waiver. Lee took the waiver form
from the officers. According to Gorsuch’s testimony, it
appeared that Lee read the waiver line before signing
the waiver and handing it back to him.
After signing the Miranda form, Gorsuch began to ask
Lee questions about events leading up to his arrest.
Several minutes into this discussion, Gorsuch asked Lee
if he could record the interview. Lee consented. At the
start of the recording, Gorsuch stated that Lee had con-
sented to the recording, had been advised of his
Miranda rights and had admitted that he had been
bringing an ounce of crack from Chicago each week since
2005 and had been selling it to several customers in
Macomb. Lee immediately retorted that he had only
sold powder cocaine, never crack. Gorsuch said that he
knew Lee was lying and reminded him that he had two
children and needed to think about his future. He also
told Lee that he knew he had sold crack because Lee
had been recorded on video and audio selling it. Lee
continued to deny selling crack. Gorsuch again accused
Lee of lying and informed him that whether he would
face additional charges depended on his cooperation.
Gorsuch also informed Lee that the additional charges
he faced would be worth three years in state court and
five years in federal court, and suggested that Lee’s
arrest could “either stay in state court or the U.S. Attor-
ney’s office may be interested in it.” The officers further
8 No. 09-2698
informed Lee of the crack they had found in the
children’s room at Kempker’s home, and stated that they
had seized the money they had found on Guyton-Whitler
and that they had prints and witnesses, including
Kempker, which would prove he was lying. Lee then
admitted that he had bought powder cocaine, cooked it
and sold it as crack cocaine in Macomb.
The discussion subsequently turned to the topic of
Tamar, from whom Lee said he had never been able to
buy drugs. During this conversation, Lee told the
officers that he had decided to cooperate with them
while he was waiting in his jail cell before the inter-
view “cause of my kids.”
When the officers began asking Lee questions about
the crack found at Kempker’s home, Lee stated that he
had paid Guyton-Whitler $1,000 for an ounce of crack,
had re-cooked it and had given it to White to hide. Lee
also discussed his involvement with Bernard Murray,
as well as two other possible drug dealers. At the con-
clusion of the interview, the officers asked Lee if they
could search his cell phone without a warrant. Lee
declined their request.
Six minutes after the end of the interview, Lee wrote a
letter to Gorsuch taking back the statements he had
made during the interview, asserting that he had ad-
mitted to things that he had not done.
In June 2008, while awaiting a court appearance, Lee
told a temporary cellmate that he had bought some bad
crack and that, while he was driving to get his money
back, he had been pulled over and arrested. Lee further
No. 09-2698 9
told his cellmate that, although the crack was his, he
refused to take the blame for it because it was not on his
person when it was found.
Prior to trial, Lee moved to suppress the incriminating
statements he had made during the interview. He
claimed that the police had violated his Miranda rights
and had coerced him into providing the statements that
he had made. Specifically, Lee argued that he had been
denied his Miranda rights because the police failed to
ensure that he understood those rights before signing
the waiver and because the officers failed to advise
him that the statements he had made prior to being
given his Miranda rights could not have been used
against him.
The district court denied Lee’s motion to suppress. The
court found that, by having his Miranda rights read to
him and by having signed the waiver, Lee understood
his rights. The district court found troubling Gorsuch’s
statements about Lee’s children, about Lee’s having
“a lot at stake” and about charging decisions potentially
depending on Lee’s cooperation. Nevertheless, the
court found that his statements were not coerced
because Lee did not appear to have been “browbeaten” at
any point during the videotaped interview. The court
also noted instances in which Lee was unwilling to co-
operate with the officers, which suggested that the police
had not coerced him into providing cooperative state-
ments.
At the bench trial, Lee’s testimony contradicted that
of the government’s witnesses. Lee denied selling any
10 No. 09-2698
drugs, and instead stated that he had only used crack
cocaine. Lee testified that he moved in with Jeffrey
Smith in 2005 and that Smith dealt drugs while Lee cut
hair as a barber. With regard to the three recordings,
Lee testified that Smith, not Lee, had delivered the
drugs to Lewis on August 29, 2006. He also testified that
he had met with Lewis on September 27, 2006, but only
to receive money she owed him. He testified further
that Lee was already at Clyde White’s trailer getting
high when Lewis came over on December 4, 2007 and
that the male voice on the recording of December 4 was
White’s voice, not his own. Lee also contended that, on
April 4, 2008, White had ordered drugs from Guyton-
Whitler and either Kempker or White, not Lee, had re-
ceived those drugs in Kempker’s car that day. He also
asserted that, once back at Kempker’s home, Lee snorted
powder cocaine and drank while White cooked raw
cocaine into crack. When they decided that the drugs
were no good, White sent Kempker and Lee back to
meet Guyton-Whitler.
The district judge found Lee guilty on all five counts.
The judge noted that he viewed the government’s co-
conspirator witnesses with caution and great care but
found them to be credible for the most part and found
Lee not to be credible. The judge also made it clear that
in making his decision he found that the government
had proven its case beyond a reasonable doubt with-
out taking into consideration the statements Lee sought
to have suppressed. For that reason, the judge em-
phasized that his holding would remain the same even
without taking Lee’s confession into consideration.
No. 09-2698 11
II. DISCUSSION
Lee argues on appeal that his post-arrest statements
should have been suppressed because they were made
in violation of his constitutional rights. He contends
that those rights were violated because the police
officers who interviewed him failed to ensure that he
understood his Miranda rights before he waived them.
He also argues that they coerced him into providing his
post-arrest incriminating statements and that they con-
ducted a two-step interrogation procedure that rendered
the Miranda warning ineffective. Lee submits that the
district court’s failure to suppress those incriminating
statements was not harmless beyond a reasonable doubt.
When reviewing a district court’s determination on a
motion to suppress, we review conclusions of law
de novo and factual determinations for clear error. United
States v. Figueroa-Espana, 511 F.3d 696, 701 (7th Cir. 2007).
When cases present errors that infringe on constitutional
rights, we will not uphold the district court unless the
constitutional error is harmless beyond a reasonable
doubt. United States ex rel. Savory v. Lane, 832 F.2d 1011,
1016 (7th Cir. 1987). An error is harmless if the prosecu-
tion can prove beyond a reasonable doubt that the con-
stitutional error did not contribute to the verdict. Hunter
v. Clark, 934 F.2d 856, 859 (7th Cir. 1991) (quoting
Satterwhite v. Texas, 486 U.S. 249, 256 (1988)). In the
present case, assuming arguendo that Lee’s constitu-
tional rights were violated, we find such error to be
harmless in light of the fact that the district court would
not have reached a different result but for the alleged
12 No. 09-2698
error. In other words, any alleged constitutional viola-
tion was harmless beyond a reasonable doubt.
A. Assuming arguendo that the district court’s denial
of Lee’s motion to suppress his incriminating state-
ments amounted to a violation of his constitutional
rights, such an error was harmless beyond a rea-
sonable doubt.
Even if we were to assume that the district court im-
properly denied Lee’s motion to suppress the statements
he made during his interrogation, such an error would
be harmless beyond a reasonable doubt.
This conclusion is almost inescapable in light of the
district judge’s emphatic statements that the govern-
ment had met its burden of proof even without any
evidence pertaining to the defendant’s confession. Im-
portantly, the present case involves a bench trial. The
district court, in its role as fact finder, could not have
been clearer in its emphasis that the government had
proven its case beyond a reasonable doubt without
taking into consideration the incriminating statements
Lee sought to have suppressed. The judge observed at
the outset that: “I denied the motion and still feel that
it was the correct ruling, but I want to make it clear at
the beginning of my comments that as far as I’m con-
cerned the Government has proven its case beyond a
reasonable doubt without the, quote, confession, un-
quote.” To eliminate any doubt, he concluded his
holding by asserting that: “I will end with the point that
I started with and that is that this result accrues even
No. 09-2698 13
by totally disregarding the things that he admitted to in
the interview.”
While Lee argues that it cannot be certain that his
incriminating statements had no effect on the judge’s
decision, it is hard to credit that argument in light of the
judge’s insistent remarks. See, e.g., United States v. Miller,
800 F.2d 129, 136 (7th Cir. 1986) (observing that, in a
bench trial, “the district court is presumed to have con-
sidered only relevant and admissible evidence in
reaching its factual findings” and holding that where
“[t]he trial court specifically stated it would disregard
the disputed evidence from its evaluation of defendant’s
guilt, . . . despite any court’s ‘many human frailties,’
we must take that statement as true”).
Any lingering doubt is removed by considering the
noninterrogation-based evidence of Lee’s guilt. This
evidence makes clear that the district judge’s preceding
remarks were well founded, having been derived from
a record that strongly establishes the defendant’s
guilt. There was powerful evidence of Lee’s guilt on all
counts. Cf. Hunter v. Clark, 934 F.2d 856, 860 (7th Cir. 1991)
(holding that “[w]hile [the defendant’s] trial was not
perfect, and we might add, very few are, any error was
harmless in view of the overpowering evidence of his
guilt.”).
In the present case, the government has presented more-
than-sufficient evidence, mainly in the form of witness
testimony, to convict Lee on all counts without taking
into account his incriminating statements. The govern-
ment was able to produce five witnesses, all of whom
14 No. 09-2698
testified to Lee’s having been involved in various drug
transactions. The district court also found the testimony
of the government’s witnesses to be more reliable and
credible than Lee’s contradictory testimony. The judge
noted that the testimonies of the government’s witnesses
were “in all important ways . . . completely internally
consistent.” Not only are judges allowed to find state-
ments reliable when “they are generally consistent, both
internally and with the remainder of the evidence,”
United States v. Westmoreland, 240 F.3d 618, 630 n.4 (7th
Cir. 2001), but deference is accorded to the judge who
“had the opportunity to hear the testimony and observe
the demeanor of the witnesses.” United States v. Edwards,
898 F.2d 1273, 1276 (7th Cir. 2001).
In support of Count I—conspiracy to distribute crack
cocaine—the government presented ample evidence to
establish Lee’s guilt beyond a reasonable doubt. See
United States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010)
(stating that “sales of large quantities of drugs, repeated
and/or standardized transactions, and a prolonged rela-
tionship between the parties constitute circumstantial
evidence of a conspiracy”). Jeffrey Smith, Lee’s cousin,
worked on and off for Lee for several years. His tasks
involved distributing drugs he received from Lee to
several of Lee’s customers in Macomb and returning
the profits to Lee. Smith would also occasionally accom-
pany Lee to buy drugs from two distributors, first a
man named “Tony” and later Lee’s brother. Two cus-
tomers, Bernard Murray and Clyde White, bought
drugs directly from Lee. White would often pool his
money with other buyers, including Cathy Lewis, in
No. 09-2698 15
order to buy drugs from Lee. The district court found the
testimony of these witnesses to be credible because Lee
often traveled from Chicago to Macomb and had several
friends in Macomb. The judge also thought that the fact
that Lee did not own a car or property in Macomb was
merely a tactic that would allow Lee to “maintain as
much of a degree of deniability as he could concerning
his conduct.”
With respect to Counts 2, 3 and 4—three counts of
distribution of crack cocaine—the government presented
the testimony of Cathy Lewis and the recordings she
made of several drug transactions between herself and
Lee. Not only did the district court find Lewis’s testi-
mony credible, but the three recordings she made on
August 29, 2009, September 27, 2006 and December 4, 2007
substantially corroborates her testimony. Despite Lee’s
attempt to point out weaknesses in the reliability of these
recordings, we are not persuaded. Although there is no
picture of the defendant and very little conversation on
the August 29 recording, the district court thought that
the name “J,” which was mentioned by “Slick” on the
recording, referred to Lee. Further, even though Lee
alleged that during the September 27 transaction he
was simply collecting a debt, the district judge believed
that Lee’s reference to $6 really meant $600, and that
when he told Lewis to “put it up” he was telling her to
put away the drugs he had just given her. Lewis’s testi-
mony, along with her recordings, was sufficient evi-
dence to convict Lee on Counts 2, 3 and 4.
16 No. 09-2698
Count 5—possession with intent to distribute—was
supported by the testimony of Clyde White and Erin
Kempker. Both witnesses testified that Lee had bought
drugs from Guyton-Whitler, distributed those drugs at
Kempker’s home and gone into a child’s room, where
the police later found 20 grams of crack, before leaving
for Good Hope. Lee also discussed with his temporary
cellmate that the crack in Kempker’s house was his,
but that he was not going to take responsibility for it.
Since the government presented ample evidence inde-
pendent of the confession to convict Lee beyond a rea-
sonable doubt on all counts, and, because the district
judge made abundantly clear that his finding would
stand even “by totally disregarding the things that [Lee]
admitted to in the interview,” any error in failing to
suppress Lee’s confession was harmless beyond a rea-
sonable doubt.
This conclusion is dispositive of the present appeal.
Nevertheless, we proceed to point out that, in any event,
no violation of Lee’s constitutional rights took place.
B. The district court did not violate Lee’s constitutional
rights.
Even though any error in admitting evidence of Lee’s
confession was harmless, it bears emphasizing that Lee’s
constitutional rights do not, in any event, appear to have
been violated. The record strongly suggests that Lee
understood his rights and knowingly signed a Miranda
waiver, that his statements made during the custodial
No. 09-2698 17
interview were not coerced and that the officers did not
use a two-step interrogation procedure that rendered
Miranda warnings ineffective.
First, Lee argues that his constitutional rights were
violated because there was no showing that he understood
them when he signed the Miranda waiver and hence
executed a knowing and intelligent waiver of those
rights. We review de novo the district court’s finding that
Lee’s waiver of his Miranda rights was knowing and
voluntary, but we review the district court’s findings
of historical fact for clear error. United States v. Doe, 149
F.3d 634, 639 (7th Cir. 1998). The waiver inquiry has
two distinct dimensions: waiver must be “voluntary in
the sense that it was the product of a free and deliberate
choice rather than intimidation, coercion, or deception,”
and “made with a full awareness of both the nature of the
right being abandoned and the consequences of the
decision to abandon it.” Berghuis v. Thompkins, 130 S. Ct.
2250, 2260 (2010) (quoting Moran v. Burbine, 475 U.S. 412,
421 (1986)).
Lee was read his Miranda rights and given a Miranda
waiver to sign immediately after. Lee took the form and
signed next to the “X.” According to Sergeant Gorsuch’s
testimony, Lee appeared to read the waiver line after
being handed the waiver form. Nothing in that sequence
of events suggests that Lee’s act of signing the waiver
was involuntary or that he did not understand the rights
that were read to him. There is nothing in the record to
suggest that Lee did not understand his rights or that
he was in some way forced to sign the waiver. Moreover,
18 No. 09-2698
after being read his Miranda rights, Lee voluntarily an-
swered many of the officers’ questions. Willingness to
answer questions, even in the absence of a signed waiver,
can be viewed as impliedly waiving one’s rights. United
States v. Smith, 218 F.3d 777, 781 (7th Cir. 2000) (holding
that “a Miranda waiver need not be express. It may be
inferred from a defendant’s understanding of her rights
coupled with a course of conduct reflecting her desire to
give up her right to remain silent”); Berghuis, 130 S. Ct.
at 2262. In the present case, not only was Lee read his
Miranda rights, but he signed the Miranda waiver volun-
tarily and continued to cooperate in answering the offi-
cers’ questions thereafter.
Second, Lee argues that his constitutional rights were
violated because his statements made during the
custodial interview were coerced. Specifically, Lee
alleges that the officers improperly pressured him into
confessing by magnifying his fears of not being able
to see his children, making false promises of leniency,
threatening to bring charges in federal court if he did not
cooperate, threatening to communicate any lack of co-
operation to the prosecutor and repeatedly accusing Lee
of being a liar.
The voluntariness of a confession is a question of fact
for the district court, not a legal determination for this
Court. United States v. Murdock, 491 F.3d 694, 699 (7th Cir.
2007). We have held that a confession is voluntary if,
under all the circumstances, it is the “product of a
rational intellect and free will and not the result of
physical abuse, psychological intimidation, or deceptive
No. 09-2698 19
interrogation tactics that have overcome the defendant’s
free will.” United States v. Carson, 582 F.3d 827, 833 (7th
Cir. 2009) (quoting United States v. Dillon, 150 F.3d 754,
757 (7th Cir. 1998)).1
Although the district judge noted with some disap-
proval one officer’s statements that Lee “had a lot at
stake” and that he had three young children to think
about, the judge did not believe that Lee had been “brow-
beaten” in any way throughout the duration of the re-
corded interview. The judge noted that there were even
several occasions when Lee was unwilling to agree
with the officers, such as his refusal to admit that he
has been convicted of a previous felony, his refusal to
admit to selling drugs to a particular person and his
refusal to allow the officers to search his phone without
a search warrant. The district judge correctly charac-
terized such resistance as being inconsistent with Lee’s
having been pressured to the point where his statements
were no longer “the product of a rational intellect and
free will.” Carson, 582 F.3d at 833 (quoting Dillon, 150
F.3d at 757). Additionally, Lee himself stated that he
had already decided that he would cooperate with the
1
Relevant factors to consider when determining whether a
confession is coerced include, but are not limited to, whether
the defendant received Miranda warnings; the defendant’s
age, intelligence level, education and mental state; the condi-
tions under which the defendant was interrogated (i.e., duration,
environment and access to restroom facilities and food);
and whether the defendant was physically punished. See
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).
20 No. 09-2698
officers while he was waiting in his jail cell before the
interview. Thus, we agree with the district court that
Lee was not coerced into providing incriminating state-
ments during his interrogation.
Last, Lee argues that his constitutional rights were
violated by the officers’ using a two-step interrogation
procedure that rendered his Miranda warning ineffec-
tive. Specifically, he alleges that because the officers
asked Lee questions on various “incriminating topics,”
read him his Miranda rights and then continued to
question him without informing him that the statements
he made before his Miranda rights were read could not
be used against him, they had used an illegal, two-part
interrogation procedure. However, the procedure em-
ployed by the officers was not a two-step procedure
because the questions asked before the Miranda rights
were read to Lee may not permissibly be considered
part of the interrogation.
A district court’s ultimate decision to admit a confes-
sion is ordinarily reviewed de novo, but the district
court’s underlying fact findings are reviewed for clear
error, especially when the suppression decision turns on
the credibility of witnesses. United States v. Stewart, 536
F.3d 714, 719 (7th Cir. 2008). The question whether
the interrogating officer deliberately withheld Miranda
warnings as part of a two-step interrogation process
will invariably turn on the credibility of the officer’s
testimony in light of the totality of the circumstances. Id.
at 719-20.
No. 09-2698 21
Miranda rights come into play when a person is in
custody and subject to express questioning, or its func-
tional equivalent. Rhode Island v. Innis, 446 U.S. 291, 300-01
(1980); see also id. at 301 (“The term ‘interrogation’ under
Miranda refers not only to express questioning, but also
to 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.”).
Thus, a Miranda violation does not occur when officers
question a defendant only to a limited extent for
personal data required as part of the processing
normally attendant to arrest and custody since these
types of questions would not reasonably be expected to
elicit incriminating responses. United States v. Kane,
726 F.2d 344, 349 (7th Cir. 1984).
In the present case, it is unclear from the record what
specific questions were asked to obtain personal-history
information. We do know that the entire first page of the
report was filled out, and that the entire second page,
except for biographical questions about Lee’s children,
appears to have been left blank. In addition, Sergeant
Gorsuch’s testimony indicates that the only potentially
incriminating question Lee was asked prior to his being
read his Miranda rights was a question related to his
drug associates, and even the answer to that was left
blank on the personal-history report. While this could be
problematic in light of its incriminatory potential, we
assume without deciding that such a question need not
always be impermissible pre-Miranda. See, e.g., United
States v. Washington, 462 F.3d 1124, 1132-33 (9th Cir. 2006)
22 No. 09-2698
(holding that, because agents routinely obtain gang-
moniker and gang-affiliation information in order to
ensure prisoner safety, such information is routinely
part of gathering background information, and not part
of the interrogation process). Regardless, and as we
proceed to explain, there is no evidence that Lee’s
answer to that question—assuming it were in fact asked
and answered—yielded incriminatory information that
was in fact used to garner incriminatory statements post-
Miranda warning.
Even if the officers did ask incriminating questions in
the first part of a two-step interrogation without
apprising Lee that those statements could not be used
against him, the facts of this case fail to meet the require-
ments of either of the two variants of the Seibert test,
which is used to determine when questioning that is
alleged to be part of a two-step interrogation is imper-
missible. Missouri v. Seibert, 542 U.S. 600 (2004). In
Seibert, a confession was obtained during a police inter-
rogation in which Miranda rights were not read until after
the defendant had already confessed. The Court was
divided in that case. As a result, two tests have emerged
from Seibert; this Court has yet to choose which test
should govern. See United States v. Heron, 564 F.3d 879, 884-
887 (7th Cir. 2009). We need not decide today which
test applies, since the facts of this case would not meet
the requirements of either test.
Under Justice Kennedy’s intent-based test, when an
interrogator uses a two-step interrogation strategy, which
is predicated upon deliberately withholding Miranda
No. 09-2698 23
warnings in order to get a confession, post-warning
statements that are related to the substance of pre-
warning statements must be excluded in the absence of
specific, curative steps. Seibert, 542 U.S. at 621 (Kennedy, J.
concurring). In the present case, there is no evidence
that the officers chose to use the alleged two-step proce-
dure in order to obtain a confession from Lee.
Under the plurality’s test, the question with respect to
a two-step interrogation procedure is whether “Miranda
warnings delivered midstream could be effective
enough to accomplish their object.” Id. at 615. Factors
that should be weighed in answering this question
include “the completeness and detail of the questions
and answers in the first round of interrogation, the over-
lapping content of the two statements, the timing and
setting of the first and the second, the continuity of
police personnel, and the degree to which the interroga-
tor’s questions treated the second round as continuous
with the first.” Id. Here, while the first and second
rounds of questions were asked consecutively without
a temporal break, there was a clear division between
the questions being answered for the personal-history
record and the ensuing interrogation. Not only were the
questions separated by the reading of Miranda rights,
but they were different in substance since the personal-
history report focused on background questions, while
the post-warning interrogation focused on the details of
Lee’s drug-related charges. While it is conceivable that
the officers asked questions that were not specifically
listed on the personal-history report, the record does not
24 No. 09-2698
support such a finding. Moreover, having been read his
Miranda rights, Lee signed the Miranda waiver, signifying
that he understood his rights and had no issues with
the previous questions.
Further, the Seibert plurality notes that the point of
employing a two-step interrogation process “is that
with one confession in hand before the warnings the
interrogator can count on getting its duplicate, with
trifling additional trouble.” Id. at 613. Here, the personal-
history report shows that the officers obtained only
preliminary background information on Lee. No con-
fessions were reported until after Lee’s Miranda rights
had been read. Although Lee argues that he felt as if the
cat had already been let out of the bag, absent evidence
that Lee made a confession before his rights were read
to him, this argument bears little weight. Additionally,
while the lack of responses on the second page of the
personal-history report is troublesome, the absence of
any evidence showing that Lee answered incriminating
questions before his Miranda rights were read is highly
persuasive.
CONCLUSION
Lee objects to the district court’s decision to deny
his motion to suppress his incriminating statements. He
contends that those statements were made in violation
of his constitutional rights, and, further, that failure to
suppress them was not harmless beyond a reasonable
No. 09-2698 25
doubt. As stated above, we do not find merit in these
contentions. The judgment of the district court is therefore
A FFIRMED.
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