United States v. James Rought

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 20-2667

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UNITED STATES OF AMERICA

v.

JAMES EUGENE ROUGHT,

Appellant

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal No. 3-18-cr-00353)

District Judge: Honorable Malachy E. Mannion

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Argued: June 24, 2021

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Before: CHAGARES, PORTER, and ROTH, Circuit Judges

(Filed: August 24, 2021)

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Ronald A. Krauss [ARGUED]

Quin M. Sorenson

Office of the Federal Public Defender

100 Chestnut Street

Suite 306

Harrisburg, PA 17101

Counsel for Appellant

Bruce D. Brandler, Acting United States Attorney

Stephen R. Cerutti II, Assistant United States Attorney

[ARGUED]

Office of United States Attorney

228 Walnut Street, P.O. Box 11754

Federal Building and Courthouse, Suite 220

Harrisburg, PA 17108

Michelle L. Olshefski, Assistant United States Attorney

Office of United States Attorney

235 North Washington Avenue

P.O. Box 309, Suite 311

Scranton, PA 18503

Counsel for Appellee

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OPINION OF THE COURT

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CHAGARES, Circuit Judge.

Defendant James Eugene Rought sold fentanyl to Dana

Carichner, who provided some to Cara Giberson. Both

overdosed. Giberson was revived with Narcan; Carichner

2

died. Rought was indicted for possession of fentanyl with

intent to distribute resulting in death and serious bodily injury.

A few days later, he was interrogated by the FBI. After being

advised of his rights verbally and in writing, he answered

questions about his drug use and his supplier, but said he did

not want to talk about Carichner’s death without a lawyer. The

interrogating agents respected his wishes and turned the

questioning to other subjects. In discussing those other

subjects, however, Rought quickly brought the conversation

back around to Carichner — and then made incriminating

statements. Rought moved to suppress the statements he made

to the FBI after he invoked his right to counsel. The District

Court denied the motion, the statements were used against

Rought at trial, and a jury convicted him. Rought now appeals,

arguing that the court erred in denying his suppression motion

and that he should receive a new trial in which the

incriminating statements would not be admissible.

We will affirm. In Connecticut v. Barrett, 479 U.S. 523

(1987), the Supreme Court held that invocations of the right to

counsel during custodial interrogations can be “limited.” Id. at

529-30. After a limited invocation, interrogation can continue

on topics not covered by the invocation. If the suspect, without

prompting from law enforcement, then voluntarily reinitiates

discussion of a covered topic and waives her previously

invoked rights, it “is quite consistent with the Fifth

Amendment” for the suspect’s statements about a covered

topic to be admissible at trial. Id. at 529. Because that is what

happened in this case, the District Court correctly denied

Rought’s suppression motion, and he is not entitled to a new

trial.

I.

3

Rought sold fentanyl to Carichner on August 13, 2018.

Giberson was there and witnessed the transaction. On August

15, Giberson asked Carichner to get her some fentanyl from his

source. Rought again sold fentanyl to Carichner on August 16,

and the two of them used drugs together. That evening,

Carichner delivered some of the fentanyl he acquired from

Rought to Giberson at the Blogg, the restaurant where she

worked, leaving it for her in her car. Carichner went home.

After midnight, Giberson overdosed on fentanyl in the

bathroom of the Blogg, but was revived with Narcan.

Carichner died of a fentanyl overdose at home and in bed

sometime after 2:00 a.m.

Law enforcement connected the overdoses to Rought.

He was charged on October 16, 2018, in a one count indictment

with distributing and possessing fentanyl with intent to

distribute resulting in serious bodily injury and death. Three

days later, Rought was interrogated for approximately one hour

by Special Agent Larry Whitehead and Task Force Officer

Shane Yelland of the FBI. The interrogation, which was

videotaped and is the focus of this appeal, took place in an FBI

interview room at the Scranton federal courthouse immediately

prior to Rought’s initial appearance on the federal charge.

Rought was already in custody for state parole violations at the

time of the interrogation.

At the outset, Whitehead confirmed that Rought had

been arrested in the past and informed him of his Miranda

rights. Whitehead also provided Rought with a written consent

form describing his rights and gave Rought an opportunity to

read it. Asked if he was willing to talk, Rought responded that

he was, “to a point.” Whitehead emphasized that Rought could

“stop at any time,” and that “those are the ground rules.”

4

Rought then signed the consent form, which among other

things provided that Rought was willing to answer questions

without a lawyer present.

For the next twenty-four minutes, Rought answered

questions about his drug use, his drug supplier, his criminal

history, and his relationship with Carichner, among other

topics. Rought insisted that he was not a drug dealer. He

believed that “the situation at hand is completely blown out of

proportion” and noted that he and Carichner worked together

and “got high together every day.” He insisted again that he

did not sell drugs to Carichner. Rought explained that

Carichner was his “best friend” and that they had grown up

together. Whitehead told Rought the interview was about

understanding “both sides” of what happened, because law

enforcement only had one side of the story so far. Rought

responded that “really you don’t know any side” because

Giberson (who claimed to have seen Rought sell drugs to

Carichner and whose name was “on the paperwork”) “wasn’t

even there” and Rought “couldn’t even tell you what this chick

looked like.” Whitehead commented that “a tragedy resulted

from your actions . . . and not just yours. . . . this is what’s

going on daily in the community.”

Whitehead told Rought that the federal criminal justice

system can be “unforgiving” for violent crimes, but that it

“rewards cooperation,” and that the FBI was interested in

Rought’s suppliers. Rought explained that his primary supplier

went by “L.B.” and that Rought would buy from him in

Wilkes-Barre. If L.B. was unavailable, Rought would connect

with other “random” suppliers in the area in order to meet the

needs of his addiction — three or four bundles of fentanyl per

day at that point. Rought explained that he would buy a brick

5

of fentanyl from L.B. in order to get bulk pricing, and then

“split it” with the people he got high with, including Carichner.

Because he worked with Carichner “every day . . . most days

we would split it.” Rought also said that the quality of the

drugs was “really good since somebody died.” Whitehead

asked Rought “why fentanyl?” Rought explained that it was

“what we wanted” because, at that time, state parole drug tests

did not test for fentanyl. Rought told Whitehead that L.B. was

always on the lookout for guns, and would trade drugs for guns.

One person who traded guns to L.B. was Stan Derby, a friend

of Rought’s that died of an overdose, “probably” from drugs

he acquired from L.B.

Rought and Whitehead discussed how Wilkes-Barre

was a “cesspool” of drug dealing and how society is “plagued”

by drugs and addiction. Whitehead emphasized his

understanding that addiction is a difficult lifestyle to escape

and brought up drug rehabilitation programs with Rought.

Rought said he was once able to stop using drugs for a week

after coming home from a five-day detox program, but began

using them again because many of the people around him were

using drugs, including Carichner.

About twenty-four minutes into the interrogation, after

Rought mentioned Carichner’s drug use, Whitehead asked, “So

let’s talk about Dana [Carichner]. What happened there?”

Rought replied, “I mean, I don’t really want to talk about that

aspect without my lawyer. . . . That’s a serious situation. I

mean, they’re trying to roof me.” 1 Whitehead immediately

responded that he understood and that “those are the ground

There is no dispute that, as used here, to “roof”

1

someone means to put that person in prison for a long time.

6

rules. . . . That’s your right, and I respect that.”

Whitehead then turned the conversation back to L.B.

and reiterated that he was interested in the people “above”

Rought. He explained that people “caught in a bad spot,” like

Rought, could help themselves and also help law enforcement

“clean up the community.” Whitehead then referenced

Rought’s previous comment that his friend Stan Derby had

overdosed. That prompted Rought to acknowledge the toll that

drug addiction had taken on those around him, including the

lives of several friends and acquaintances who died of

overdoses; Rought said “you’re not losing the effect on me.”

Whitehead responded that he understood that toll and reiterated

that he wanted Rought to share information that would help

law enforcement in “going up the ladder” after L.B. and

“whoever else there is.”

In response, and just a few minutes after invoking his

right to counsel, Rought stated that he did not like addiction

any more than Whitehead and that drug dealers are “killing my

friends just as much as, right now, you’re trying to say that I

killed my friend [Carichner].” Whitehead responded that he

was not saying that Rought killed Carichner but that Rought

“had a role and that’s unfortunate, it is.” He noted that Rought

must “feel like shit” about Carichner’s death, to which Rought

responded, “Absolutely.” Whitehead informed Rought that he

did not believe Rought had “intent or malice” and that

Carichner’s death was an “unfortunate tragedy.” Rought then

expressed anger about how he was being treated like a drug

dealer when he did not sell drugs. He asked “[j]ust because

somebody that I worked with also got high and we got high

together . . . how is that a crime? . . . [H]ow am I being charged

with serious bodily injury [and] death?” Rought expressed

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incredulity that “the same dope that he snorted a bag of and

died, I shot ten bags of right next to him.” He also explained

that he initially did not believe that Carichner had overdosed

because it did not make sense that Carichner “got high, drove

all the way home, 25-30 minutes, and then got into bed, and

then died.”

Whitehead commented that “we have to work through

this . . . . The three of us, the prosecutor, and your attorney. . .

. This is set in motion.” He acknowledged that Rought was in

a “shitty situation.” Rought said he recognized that fact as soon

as he learned “that I got . . . a fed case on Facebook.” Yelland

then steered the conversation back to L.B. by asking if L.B.

used Facebook. The remainder of the interrogation focused on

L.B. At one point, Whitehead offered to question Rought

about L.B. with a lawyer present. Rought did not express

interest in this suggestion, and continued answering questions

about L.B. until he was brought before the District Court for

his initial appearance.

In May 2019, Rought moved to suppress his post-

invocation statements on the ground that they were obtained in

violation of Miranda v. Arizona, 384 U.S. 436 (1966). The

Government filed a superseding indictment against Rought the

following month; it added one count of conspiracy to possess

fentanyl with intent to distribute and one count of aiding and

abetting the distribution of fentanyl. Rought pleaded not guilty

to all three counts. The District Court denied Rought’s

suppression motion, concluding that Rought’s invocation of

the right to counsel was limited to the circumstances of

Carichner’s death, that law enforcement “should [not] have

reasonably anticipated” that discussing L.B. and Derby’s

overdose would prompt Rought to “renew discussions about”

8

Carichner, and that Rought knowingly and voluntarily waived

his right not to speak about Carichner without a lawyer present.

Appendix (“App.”) 97-99.

At trial, the Government made frequent use of Rought’s

post-invocation statements. The Government, for instance,

told the jury in its opening statement that they would “actually

hear the defendant admitting to . . . drug dealing.” App. 190.

Among other uses, the video of the interrogation was played

during Agent Whitehead’s testimony, and the Government’s

closing arguments referred back to Rought’s statements. The

jury convicted Rought on all counts, and he was sentenced to

360 months in prison. Rought timely appealed.

II.

The District Court had jurisdiction under 18 U.S.C. §

3231, and we have appellate jurisdiction under 28 U.S.C. §

1291. We review the denial of a motion to suppress for clear

error as to the facts that the District Court found and exercise

plenary review over the application of law to those facts.

United States v. Davis, 726 F.3d 434, 439 (3d Cir. 2013).

III.

Rought argues that the District Court erred in denying

his motion to suppress for three reasons. First, Rought argues

that his invocation of the right to counsel was not limited to the

circumstances of Carichner’s death but was instead without

limitation and that law enforcement was therefore required to

cease interrogation entirely under Edwards v. Arizona, 451

U.S. 477 (1981). Second, Rought argues that after he invoked

his right to counsel, he did not initiate the post-invocation

9

discussion about Carichner. Third, Rought argues that any

post-invocation waiver of the right to counsel was not knowing

and intelligent because he was not “fully aware” of the

potential consequences, including the risk — which came to

pass — that he was opening himself up to conspiracy charges.

Rought Br. 26. We will below elucidate the relevant legal

principles, and then consider Rought’s arguments in light of

those principles.

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. To safeguard this right, the

Supreme Court in Miranda “imposed certain obligations on

police in custodial interrogations, in order to dissipate the

‘compelling pressures which work to undermine the

individual’s will to resist and to compel him to speak where he

would not otherwise do so freely.’” United States v.

Velasquez, 885 F.2d 1076, 1084 (3d Cir. 1989) (quoting

Miranda, 384 U.S. at 467). The familiar Miranda warnings

require police to “inform the suspect of his right to remain

silent and his right to have counsel present during

interrogation, as well as their intent to use his statements to

secure a conviction.” Id. Police must also “cease the

interrogation if at any point the suspect indicates that he wishes

to remain silent or that he wants an attorney.” Id.

In Edwards, the Supreme Court established a bright-line

rule for suspects who have invoked the right to counsel: “an

accused person in custody who has invoked his desire not to

speak until he has conferred with counsel ‘is not subject to

further interrogation . . . until counsel has been made available

10

to him, unless the accused himself initiates further

communication, exchanges, or conversations with the police.’”

Id. (quoting Edwards, 451 U.S. at 484-85). If a suspect who

has invoked the right to counsel but not yet met with counsel

initiates discussion with the authorities, further interrogation 2

can take place. Id. at 1084, 1087. Post-invocation statements

made during that interrogation may then be admissible against

the suspect at trial if the suspect knowingly and voluntarily

waives the right to counsel and the right to remain silent. Id.;

see also Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983)

(plurality opinion); Edwards, 451 U.S. at 486 n.9.

In Bradshaw, the Court split 4-4 on what it means for a

suspect to “initiate” discussion following an invocation of the

right to counsel. The plurality held that the suspect in the case

before it initiated discussion where his question — “Well, what

is going to happen to me now?” — “evinced a willingness and

a desire for a generalized discussion about the investigation.”

462 U.S. at 1045-46. The dissenters would have held that

initiation requires “communication or dialogue about the

subject matter of the criminal investigation.” Id. at 1053

(Marshall, J., dissenting) (emphasis omitted). In Velasquez,

this Court adopted the Bradshaw plurality’s test for initiation,

holding “that an initiation occurs when a suspect initiates a

conversation evincing a willingness and a desire for a

2

Under Miranda, “the term ‘interrogation’ . . . 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.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980)

(footnote omitted).

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generalized discussion about the investigation.” 885 F.2d at

1085 (cleaned up). Initiation and waiver are distinct analytical

steps; initiation by itself is not adequate to find a waiver. Id. at

1087.

A waiver of the Miranda rights must be voluntary,

knowing, and intelligent considering the totality of the

circumstances. Id. at 1086 (citing Miranda, 384 U.S. at 444).

A waiver is voluntary if “it was the product of a free and

deliberate choice rather than intimidation, coercion, or

deception.” Colorado v. Spring, 479 U.S. 564, 573 (1987)

(quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). In the

voluntariness inquiry, “[a] suspect’s background and

experience, including prior dealings with the criminal justice

system, should be taken into account.” United States v. Jacobs,

431 F.3d 99, 108 (3d Cir. 2005). A waiver is knowing and

intelligent if “made with a full awareness both of the nature of

the right being abandoned and the consequences of the decision

to abandon it.” Spring, 479 U.S. at 573 (quoting Burbine, 475

U.S. at 421); see also Berghuis v. Thompkins, 560 U.S. 370,

382-83 (2010). If the Government “shows that a Miranda

warning was given and that it was understood by the accused,

an accused’s uncoerced statement establishes an implied

waiver of the right to remain silent.” Berghuis, 560 U.S. at

384.

In sum, then, a suspect who has invoked the right to

counsel and has not yet met with counsel is generally not

subject to further interrogation unless the suspect initiates

discussion with law enforcement. Once there has been an

initiation, further interrogation can take place, and the

suspect’s statements may be admissible against him at trial if

he validly waives the right to remain silent and the right to

12

counsel. See Velasquez, 885 F.2d at 1084-89.

Or at least, these are the principles that generally apply

after a suspect invokes the right to counsel “for all purposes.”

Barrett, 479 U.S. at 530. A key premise of the decisions

discussed above is that a suspect’s invocation of the right to

counsel reflects a “desire to deal with the police only through

counsel.” Edwards, 451 U.S. at 484. The Supreme Court

recognized in Barrett, however, that not all invocations reflect

such a desire. The defendant in Barrett refused “to put

anything in writing until his attorney came,” but was willing to

offer an oral confession despite knowing that police planned to

record it on tape. 479 U.S. at 525-26. The Court held that

Barrett’s oral statements were admissible, reasoning that

nothing “requires authorities to ignore the tenor or sense of a

defendant’s response to [Miranda] warnings.” Id. at 528. If

police had obtained a written statement without complying

with Edwards, it would “clearly” have been inadmissible, but

it was “quite consistent with the Fifth Amendment” for law

enforcement to make use of “the opportunity provided by

Barrett to obtain an oral confession.” Id. at 529.

The invocation in Barrett was limited by the mode of

the suspect’s communications: written statements were within

the invocation while oral statements were not. But the Court’s

reasoning in Barrett is not limited to mode. It applies with

equal force to invocations limited by topic or subject matter,

and we now hold that suspects can limit their invocations of

the right to counsel in this manner. 3 Numerous federal and

3

We caution, however, that the Barrett decision creates

only a narrow exception to the Edwards rule, and that it is

appropriate to give ambiguous invocations of the right to

13

state courts have likewise relied on the Barrett decision to find

that an invocation was limited by topic or subject matter. See,

e.g., United States v. Oba, 978 F.2d 1123, 1130 (9th Cir. 1992)

(concluding that invocation was limited to advice of counsel

concerning effect of x-ray consent form on potential civil

action); United States v. Ivy, 929 F.2d 147, 152-53 (5th Cir.

1991) (determining that invocation was limited to questions

about where defendant obtained materials to make a bomb);

United States v. Conner, 946 F.2d 896, 1991 WL 213756, at

*1-2 (6th Cir. 1991) (affirming finding that invocation was

limited to “narcotics activity” and did not cover other

investigative topics); United States v. Mikelic, No. 3:10-cr-

132, 2011 WL 4368565, at *11 (D. Conn. Sept. 19, 2011)

(“Mikelic only stated that he wanted to speak with his lawyer

with respect to certain questions . . . . Thus, it did not violate

the Fifth Amendment for [law enforcement] to continue

questioning Mikelic following Mikelic’s limited invocation of

his right to counsel.”); People v. Adams, 627 N.W.2d 623, 628

(Mich. Ct. App. 2001) (“Because defendant only declined to

answer some questions regarding a few limited topics and only

asserted a need for counsel with respect to questions regarding

motive . . . the police detective was permitted to continue

interviewing defendant regarding other matters pertaining to

the . . . murder.”); State v. Brennan, 850 P.2d 202, 206 (Idaho

Ct. App. 1993) (affirming the trial court’s denial of a

suppression motion when the defendant refused to discuss “the

events of the night of June 19” with the police but agreed to

discuss “related background events”); see generally 2 Wayne

R. LaFave et al., Crim. Proc. § 6.9(g) (4th ed., Dec. 2020

update) (“It is possible that the defendant’s invocation of his

counsel “a broad, rather than a narrow, interpretation.” Barrett,

479 U.S. at 529.

14

right to counsel will be limited in some way, in which case

application of the Edwards rule is limited to the same extent,

as the Supreme Court concluded in Connecticut v. Barrett.”).

Rought’s brief acknowledges that invocations can be limited in

scope, as Rought’s counsel conceded at oral argument. 4

There is scant authority, however, addressing the

interaction between the Barrett and Bradshaw decisions — that

4

The dissent contends that Barrett does not justify

“holding that police may continue questioning a suspect after

he has invoked his right to counsel on a topic that is germane

to their investigation.” Dissenting Op. 9. This contention is

refuted by the Barrett decision itself: after the suspect there

invoked his right to counsel as to written statements, law

enforcement continued to question him about the very same

investigation and secured an oral confession, which the Court

held admissible. 479 U.S. at 525, 529.

The dissent counters that “Barrett’s invocation as to

written statements is not analogous to a topic-specific

invocation” because “Barrett’s invocation did not suggest that

he felt unable to handle the pressures of interrogation on any

topic.” Dissenting Op. 9–10. This account of Barrett is

implausible. The Court’s opinion offers no basis for

distinguishing between limited invocations that suggest an

inability to “handle the pressures of interrogation on any topic”

and those that do not. To the contrary, the Court distinguished

between invocations that are “limited” and those that are

“effective for all purposes,” with the scope of the former to be

discerned by the “tenor or sense of a defendant’s response” to

the Miranda warnings, and not some gestalt impression of a

suspect’s fortitude under questioning, as the dissent would

have it. 479 U.S. at 528-30.

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is, between limited invocations and post-invocation initiations.

It is clear that if law enforcement unilaterally seeks to obtain

statements from a suspect about matters within the scope of a

limited invocation, those statements would be inadmissible.

See Barrett, 479 U.S. at 529. But when can law enforcement

resume interrogation on a topic covered by a limited

invocation? And what qualifies as an “initiation” on a covered

topic following a limited invocation?

As an initial matter, it cannot be the case, as Rought

asserts, that a complete cessation of all interrogation is required

before law enforcement can resume interrogation on a covered

topic. That would be inconsistent with the Barrett decision,

which counsels that interrogation can continue as to matters

outside the scope of a limited invocation. Instead, it is

sufficient if law enforcement respects the suspect’s wishes and

ceases interrogation concerning any topic covered by a limited

invocation. This means no more questions not only about the

covered topic, but also about any topics “that the police should

know are reasonably likely to elicit an incriminating response

from the suspect” about the covered topic. Innis, 446 U.S. at

301 (footnote omitted).

Assuming that law enforcement has ceased

interrogation about the covered topic, we agree with the

Government that as a practical matter, a suspect’s post-

invocation “initiation” must mean something like bringing “the

subject back up.” Gov’t Br. 26; see also Oba, 978 F.2d at 1130

(concluding there was no Edwards violation where suspect

“initiated further discussion” concerning the topic covered by

his limited invocation). Following Bradshaw and Velasquez,

we hold that after a limited invocation, “an initiation occurs

when a suspect initiates a [line of discussion that] evinc[es] a

16

willingness and a desire for a generalized discussion about the

[covered topic].” Velasquez, 885 F.2d at 1085. And we agree

with the District Court that it is important for the suspect to

bring the covered topic back up without undue prompting from

law enforcement. See App. 97 (“[L]aw enforcement did not

prompt Rought’s return to the subject of Mr. Carichner”). As

noted above, then, there is no “initiation” on a covered topic if

the suspect is responding to “words or actions on the part of the

police . . . that the police should know are reasonably likely to

elicit an incriminating response from the suspect” concerning

the covered topic. Innis, 446 U.S. at 301 (footnoted omitted);

cf. Edwards, 451 U.S. at 484 (“[A] valid waiver of th[e] right

[to counsel] cannot be established by showing only that [a

suspect] responded to further police-initiated custodial

interrogation even if he has been advised of his rights.”). 5 That

is, there is no “initiation” by the suspect if the suspect is

responding to interrogation that law enforcement should know

is reasonably likely to elicit a response on the covered topic. 6

In sum, if a suspect makes a limited invocation of the

5

There may be other circumstances in which law

enforcement unduly prompts a suspect to initiate a post-

invocation discussion of a topic covered by a limited

invocation short of interrogation, but they are not before us,

and we need not consider them. Likewise, we need not

consider whether law enforcement must re-inform a suspect of

his Miranda rights before resuming interrogation on a covered

topic following an initiation — though doing so would likely

minimize doubt that a suspect’s waiver is voluntary, knowing,

and intelligent.

6

The dissent’s suggestion that today’s decision creates

a “gotcha game” because interrogators “can try to induce [a

17

right to counsel, the Edwards rule is limited to the same extent.

See 2 LaFave, supra, Crim. Proc. § 6.9(g). Law enforcement

must honor the suspect’s request and cease interrogation

concerning any topics covered by the invocation. If the suspect

then initiates discussion of covered topics without prompting

from law enforcement, interrogation can resume as to those

topics. If the suspect validly waives the right to silence and the

previously invoked right to counsel, then the suspect’s

statements on the covered topic may be admissible at trial.

B.

We now evaluate Rought’s arguments in light of these

legal principles.

1.

Rought first argues that his invocation of the right to

counsel was not limited to the circumstances of Carichner’s

death but was “for all purposes,” and that law enforcement was

therefore required to cease interrogation entirely under

Edwards. We disagree.

Whitehead properly informed Rought of his Miranda

rights at the outset of the interrogation. Rought said he was

willing to talk “to a point.” Rought proceeded to discuss a

variety of topics, including his addiction, his fentanyl source,

suspect] to talk about the very topic that he has said he does

not want to discuss,” see Dissenting Op. 1, is thus misplaced.

If interrogators do so, the suspect will not have re-initiated and

the Edwards rule will still be in effect as to any topics covered

by the invocation.

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his relationship with Carichner, and his criminal history. It was

only when Whitehead said, “So let’s talk about Dana. What

happened there?” that Rought responded, “I don’t really want

to talk about that aspect without my lawyer. . . . That’s a serious

situation. I mean, they’re trying to roof me.”

In context, it is plain that “that aspect” refers to the

circumstances of Carichner’s death. Rought had previous

experience with the criminal justice system, understood his

Miranda rights, and openly spoke about other facets of his own

criminal conduct. He had just been indicted for possession

with intent to distribute resulting in serious bodily injury and

death — a charge likely to result in a long prison sentence.

Given this context and the course of the interrogation up to the

point of Rought’s invocation, “that aspect” is most naturally

understood to refer to Carichner’s death — a “serious

situation” that could result in Rought getting “roofed,” and

distinct from the subjects Rought had been discussing up to

that point.

Rought argues that his invocation was not so limited,

and that “‘that aspect’ could mean only one thing: any matter

relating to the circumstances of Carichner’s death, including

Rought’s involvement in drug dealing in general.” Rought Br.

22. Alternatively, he argues that his invocation was ambiguous

and should be construed broadly. Again, we disagree, and the

District Court’s determinations to the contrary were not clearly

erroneous. It is not plausible that by refusing to discuss “that

aspect” of the case without a lawyer, Rought was actually

expressing “his desire to deal with the police only through

counsel.” Edwards, 451 U.S. at 484 (emphasis added). To

accept Rought’s argument would require “a disregard of the

ordinary meaning of [his] statement.” Barrett, 479 U.S. at 530.

19

In context, the limited nature of Rought’s invocation is not

ambiguous. Cf. In re Friedman’s Inc., 738 F.3d 547, 554 (3d

Cir. 2013) (noting that ambiguity must be evaluated in light of

overall context).

Rought further argues that it would “belie[] common

sense” to find that he “was sufficiently astute and calm” to

make only a limited invocation, and that it is “perverse” to

penalize a suspect who “happens to be too garrulous for his

own good” because his lawyer has not yet arrived. Rought Br.

22-23. These arguments are beside the point. The Supreme

Court has made clear that Miranda protects a suspect’s choice

to speak or not, and that if the warnings are understood, it is of

no moment “that some might find [Rought’s] decision

illogical.” Barrett, 479 U.S. at 529-30.

We therefore conclude that there was no clear error in

the District Court’s determination that Rought’s “invocation of

the right to counsel was limited and not broad in nature,” and

that he “left all other subjects open to questioning.” App. 97.

2.

Rought next argues that he did not initiate the post-

invocation discussion of Carichner’s death. He asserts initially

that there cannot be a post-invocation initiation if “the

interrogation never ceases.” Rought Br. 23. We reject this

argument for reasons already given — the teaching of Barrett

is that interrogation need not cease entirely following a limited

invocation, but can continue as to matters not covered by the

invocation.

After Rought’s invocation, Whitehead responded that

20

he respected Rought’s right, and refocused the interrogation on

Rought’s drug supplier, L.B. In an effort to persuade Rought

to cooperate in pursuing L.B., Whitehead emphasized the harm

that drug addiction and drug dealers visit on the community,

and mentioned the overdose of Rought’s friend Stan Derby,

another addict who bought from L.B. Whitehead asked for

information that would help in “going up the ladder” after L.B.

and others like him. Whitehead’s comments prompted Rought

to state that drug dealers are “killing my friends just as much

as, right now, you’re trying to say that I killed” Carichner. We

hold that when Rought made this statement, he initiated

discussion on Carichner’s death and thereby opened himself up

to further interrogation on that subject. His voluntary return to

the subject of his then-alleged role in Carichner’s death

evinced a willingness for a generalized discussion about the

issue. See Bradshaw, 462 U.S. at 1045-46 (plurality opinion)

(concluding that respondent initiated post-invocation by

asking, “Well, what is going to happen to me now?”);

Velasquez, 885 F.2d at 1085 (holding that defendant initiated

post-invocation by asking, “What is going to happen?”).

Rought argues that Whitehead’s comments following

Rought’s invocation about Derby’s overdose and going after

L.B. were intended “to elicit Rought’s verbal response” about

Carichner, in order “to create a record that might support a

finding of post-invocation initiating.” Rought Br. 24. As a

general matter, we acknowledge that it is not totally

unforeseeable that an appeal to Rought’s conscience and a

reference to Derby’s overdose could lead Rought to discuss

Carichner’s overdose.

But on this record, we agree with the District Court that

“[t]he question[s] about L.B. and Mr. Derby [concerned]

21

subjects distinct from . . . the circumstances surrounding Mr.

Carichner and [were] not ones that law enforcement should

have reasonably anticipated would prompt Rought to renew

discussions about Mr. Carichner.” App. 97. Much of the

interrogation up to that point was focused on gathering

information about L.B. and discussing the deleterious effects

of drug addiction and drug dealing. Rought had been willing

to discuss those issues, but then carved out Carichner’s death

as a forbidden topic. An agent in Whitehead’s position could

reasonably have expected that Rought would continue to

differentiate among the distinct issues in the interrogation,

notwithstanding some overlap in subject matter. 7 Likewise, an

agent in Whitehead’s position could reasonably have expected

that his request for Rought’s help in going after L.B. would not

prompt Rought to bring Carichner back up shortly after Rought

indicated that he did not want to discuss Carichner. We do not

think it justifiable, given this context, to charge Whitehead

with the knowledge that his comments may have elicited a

response from Rought about Carichner’s death. See Innis, 446

U.S. at 301 (holding that interrogation includes “words or

actions on the part of the police . . . that the police should know

7

The dissent’s argument that Carichner’s death,

Derby’s death, and the effects of drugs on the community were

all part of one big topic of conversation is belied by the record.

Rought and his interrogators differentiated between these

subjects, the District Court accordingly found that they were

“distinct,” and that finding was not clearly erroneous. App. 97.

22

are reasonably likely to elicit an incriminating response”). 8

3.

Lastly, Rought argues that any post-invocation waiver

was not effective because he was not “fully aware of the

consequences if he were to waive his right to counsel to any

extent.” Rought Br. 26. Rought argues in particular that he

“could not have been fully aware of the consequences

concerning involvement in a conspiracy, and how broadly such

charges would sweep.” Id. But he otherwise concedes that,

given “the totality of the circumstances, it might be reasonable

to infer that [he] was fully aware of the consequences of

waiving [the] right to counsel concerning legal issues arising

out of any involvement” in Carichner and Giberson’s

overdoses. Id.

Rought’s argument that his waiver was invalid because

he did not foresee all of its potential consequences is meritless.

It is beyond cavil that “[t]he Constitution does not require that

8

Rought also takes issue with Whitehead’s comments

that Rought “had a role” in Carichner’s death and that Rought

must “feel like shit” about it. By the time Whitehead made

these comments, however, Rought had already initiated

discussion about Carichner’s death, and was thus subject to

interrogation about that topic. Velasquez, 885 F.2d at 1087.

Accordingly, we do not reach the question whether these

comments by Whitehead amounted to interrogation under

Innis, as the answer does not affect our disposition of Rought’s

appeal. The dissent’s suggestion that these statements have

any bearing on whether Rought re-initiated discussion about

Carichner’s death is mistaken for the same reason.

23

a criminal suspect know and understand every possible

consequence of a waiver.” Spring, 479 U.S. at 574. A waiver

is generally held to be knowing and voluntary “if the defendant

fully understands the nature of the right and how it would likely

apply in general in the circumstances—even though the

defendant may not know the specific detailed consequences of

invoking it.” United States v. Ruiz, 536 U.S. 622, 629 (2002).

We long ago observed that “[i]t is not in the sense of

shrewdness that Miranda speaks of ‘intelligent’ waiver but

rather in the tenor that the individual must know of his

available options before deciding what he thinks best suits his

particular situation.” Collins v. Brierly, 492 F.2d 735, 739 (3d

Cir. 1974) (en banc). A similar principle applies to the

voluntariness inquiry. See Barrett, 479 U.S. at 530 (“The fact

that some might find Barrett’s decision illogical is irrelevant,

for we have never ‘embraced the theory that a defendant’s

ignorance of the full consequences of his decisions vitiates

their voluntariness.’” (footnoted omitted) (quoting Oregon v.

Elstad, 470 U.S. 298, 316 (1985))).

Rought makes only the above argument concerning

waiver; he has thus forfeited all others. See Barna v. Bd. of

Sch. Dirs., 877 F.3d 136, 145 (3d Cir. 2017). Even if Rought

had preserved additional arguments and not conceded the

point, we would readily conclude that his post-invocation

waiver was voluntary, knowing, and intelligent under the

totality of the circumstances. Rought was read his Miranda

rights, signed a form acknowledging that he understood them,

and consented to questioning. He had prior experience with

the criminal justice system and was surely aware that his

statements to law enforcement could be used against him.

There is also no basis in the record for finding involuntariness.

Neither Whitehead’s comment about Rought’s role in

24

Carichner’s death nor anything else he or Yelland said or did

approaches the kind of law enforcement overreach necessary

to render a statement involuntary. See Colorado v. Connelly,

479 U.S. 157, 163-65 (1986); Velasquez, 885 F.2d at 1087-89;

Miller v. Fenton, 796 F.2d 598, 603-13 (3d Cir. 1986); 2

LaFave, supra, Crim. Proc. § 6.2(c) nn.120-61 and

accompanying text. By choosing to speak in detail about the

circumstances of Carichner’s death after initiating discussion

on that topic, Rought knowingly, intelligently, and voluntarily

waived his right to remain silent and his limited invocation of

the right to counsel. See Berghuis, 560 U.S. at 384; Velasquez,

885 F.2d at 1087-89.

* * * * *

Rought made a limited invocation of his right to

counsel, cutting off questioning only about the death of Dana

Carichner. Shortly after that invocation, he initiated

conversation with law enforcement about Carichner’s death,

and waived his previously invoked right not to discuss

Carichner without counsel’s assistance. Rought’s post-

invocation statements were thus admissible against him at trial,

and the District Court correctly denied his motion to suppress.

IV.

For the foregoing reasons, we will affirm the judgment

of the District Court.

25

United States of America v. James Rought

No. 20-2667

_________________________________________________

ROTH, Circuit Judge, dissenting.

The right to counsel during an in-custody interrogation

should not be the target of a “gotcha game.” 1 The interrogator

shouldn’t consider a suspect’s invocation of the right to

counsel as an opportunity to trick the suspect into bringing up,

on his own, the protected subject matter. If the suspect does

so, “gotcha!” He has waived the right to counsel.

The Majority has created the perfect playing field for a

gotcha game. In permitting a “limited,” topic-specific

invocation of the right to counsel, the Majority leaves the

suspect in a morass of what topics are protected by the request

for counsel and what topics the interrogators can continue to

pursue. The interrogators not only can continue questioning

him about other topics, but they also can try to induce him to

talk about the very topic that he has said he does not want to

discuss. If the suspect is induced to say something about the

protected topic, he has waived the right to counsel. Gotcha!

For these reasons, I do not agree with the Majority’s decision.

I.

1

“Gotcha” is defined as “to exultingly point out a blunder, etc”.

Random House Webster’s College Dictionary, (2d ed. 1999).

1

Miranda 2 is based on the Court’s determination that “in-

custody interrogation . . . contains inherently compelling

pressures which work to undermine the individual’s will to

resist and to compel him to speak where he would not

otherwise do so freely.” 3 “Even without employing brutality,

the ‘third degree’ or . . . specific stratagems . . . the very fact of

custodial interrogation exacts a heavy toll on individual liberty

and trades on the weakness of individuals.” 4 Thus, “custodial

interrogation [must] be preceded by advice to the putative

defendant that he has the right to remain silent and also the

right to the presence of an attorney.” 5 If the suspect invokes

his right to counsel, it creates a presumption “that he considers

himself unable to deal with the pressures of custodial

interrogation without legal assistance.” 6 Police “must cease

the interrogation if at any point the suspect indicates that he

wishes to remain silent or that he wants an attorney.” 7

A.

The Majority seems oblivious to the coercive character

of custodial interrogation that motivated the Supreme Court in

Miranda 8 to protect the constitutional right against self-

incrimination. This inherently coercive pressure of custodial

2

Miranda v. Arizona, 384 U.S. 436 (1966).

3

Id.at 467

4

Id. at 455.

5

Edwards v. Arizona, 451 U.S. 477, 481–82 (1981).

6

Arizona v. Roberson, 486 U.S. 675, 683 (1988).

7

United States v. Velasquez, 885 F.2d 1076, 1084 (3d Cir.

1989) (citation omitted).

8

384 U.S. 436.

2

interrogation may affect the suspect in several significant

ways.

Of prime importance is the fact that a suspect’s decision

to talk about some topics, but not others, may be compromised

by the ongoing interrogation. When a suspect invokes his right

to counsel, he has indicated “that he considers himself unable

to deal with the pressures of custodial interrogation without

legal assistance.” 9 If a suspect explicitly states that

interrogation on some topics is too much for him, can we

assume that he can handle interrogation on similar topics? In

particular, if the suspect has come to this conclusion while the

coercive interrogation is still ongoing, how reliable is his

decision? As Rought argues, it “belies common sense” to

conclude that a suspect “[i]s sufficiently astute and calm”

during an FBI interrogation “to carve out a subset of . . .

discussion topics” 10 that he is able to handle. 11

Moreover, even if a suspect can “carve out a subset of

discussion topics,” the Majority ignores the difficult legal

landscape that the suspect now must navigate to avoid being

caught in a “gotcha game”:

9

Roberson, 486 U.S. at 683.

10

Opening Br. 23.

11

Indeed, even the suspect’s statements on other topics not

covered by the invocation are likely tainted by the coercive

nature of the custodial interrogation.: “[T]he presumption . . .

that [the suspect] considers himself unable to deal with the

pressures of custodial interrogation without legal assistance . .

. does not disappear simply because the police have

approached the suspect, still in custody, still without counsel,

about a separate investigation.” Roberson, 486 U.S. at 683.

3

• While in this coercive setting, the suspect must make

sure that his invocation of the right to counsel is

“unequivocal,” not just unequivocal from his own

perspective or even from a reasonable layperson’s

perspective, but from the perspective of a reasonable

police officer. 12 A request for an attorney, which is

ambiguous or equivocal, as understood by a reasonable

interrogator, does not invoke the right to counsel. 13

• Moreover, under the Majority’s holding, the suspect

must now make sure that an unequivocal invocation is

not construed (also from the perspective of an

interrogator 14) as being “limited” in some way. If the

suspect intended the invocation to be unlimited and the

interrogators misconstrue it as limited and continue to

ask him questions, what is the suspect to make of their

earlier promise to cease interrogation if he invoked his

rights? Does he clarify that his invocation was not

limited by invoking his rights again or does he simply

conclude that the interrogators have no intention of

12

Davis v. United States, 512 U.S. 452, 459 (1994); accord

Flamer v. Delaware, 68 F.3d 710, 725 (3d Cir. 1995).

13

Id.

14

Compare Burrell v. Commonwealth, 710 S.E.2d 509, 516

(Va. Ct. App. 2011) (“[T]he qualification must be one that a

reasonable police officer would understand as placing a

specific question outside the boundaries of the

interrogation[.]”), with People v. Firestine, 132 N.E.3d 886,

894–95 (Ill. App. Ct. 2019) (“We find that the better approach

is to hold that, if a qualification or limit is ambiguous, the

qualification or limit itself is ineffective.”).

4

respecting his rights and that re-invoking them would

be “futile”? 15

• If the suspect did intend his invocation to be limited, he

must determine what scope a reasonable interrogator

will give to the limitation. 16 If the police ask about

topics that the suspect believed were covered by his

invocation, will he realize that the police merely

misconstrued his invocation—rather than ignored it—

and clarify the invocation for them? If the suspect is

frightened or timid or has poor command of English,

will he be able to do so? Perhaps he will just conclude

that clarification would be futile.

• Even if the interrogators properly construe his

limitation, the suspect must make sure that he does not

inadvertently say something that will later be construed

by a court as his reinitiating on his own the discussion

of topics that he has said he is unable to handle without

counsel.

• Finally, the suspect must do all this while continuing to

respond to interrogation on other topics.

The number of landmines a suspect must avoid is mind-

boggling. I cannot accept a rule that treats a suspect like a law

15

Davis, 512 U.S. at 472–73 (Souter, J., concurring).

16

This situation is a prime example of how exceedingly

difficult it is to draw a line between what is and what is not

“covered” by a topic-specific invocation. Looking at the case

before us, did Rought’s invocation of counsel mean that he did

not want to talk about Carichner’s death without counsel

present or that he did not want to talk about his drug dealings

with Carichner, or both. The government claims the former,

but that is not clear from the record.

5

school student who is taking an exam on criminal procedure.

For suspects, the interrogation is not a hypothetical fact

pattern; it is something they must navigate in real time while

under extreme pressure—held alone and against their will,

beset by police interrogators, and fearful of conviction and

imprisonment. In the real world, the Majority’s labyrinthine

approach opens the door for the police to play “gotcha” by

enabling them to (1) grind down a suspect’s will and “badger[]

[him] into waiving his previously asserted Miranda rights,” 17

or (2) subtly subvert the limits imposed by his topic-specific

invocation.

The Majority’s approach will favor savvy suspects who

understand the rules of the game but it will leave unsavvy

suspects to fend for themselves. That is precisely the result

that Miranda forbids: Under Miranda, the interrogators must

state the rules, clearly and unequivocally, at the beginning of

the interrogation for the benefit of savvy and unsavvy suspects

alike.

A.

At one time, the Supreme Court jealously guarded

Miranda’s prophylactic rule. In Edwards, 18 the Court held that

once a suspect invokes his right to counsel, he cannot later

waive that invocation without counsel present 19 unless the

suspect, not the police, “initiate[s] further discussions” about

17

Id. at 485 (O’Connor, J.) (quotation marks and citation

omitted).

18

451 U.S. 477 (1981).

19

See Roberson, 486 U.S. at 681.

6

the investigation. 20 Otherwise, police could “badger[] the

defendant into waiving his previously asserted Miranda

rights.” 21 The Court has also held that “[t]he Edwards rule . .

. is not offense specific: Once a suspect invokes the Miranda

right to counsel for interrogation regarding one offense, he may

not be reapproached regarding any offense unless counsel is

present.” 22 “[T]he presumption raised by a suspect’s request

for counsel—that he considers himself unable to deal with the

pressures of custodial interrogation without legal assistance—

does not disappear simply because the police have approached

the suspect, still in custody, still without counsel, about a

separate investigation.” 23

Over time, however, the Court has taken some steps to

pare Miranda back. For example, in Davis v. United States,

the Court held that Edwards does not apply where “the

suspect’s statement is not an unambiguous or unequivocal

request for counsel.” 24 That holding drew forceful

disagreement from four Justices, who stated that it lacked

“coherence with nearly three decades of case law addressing

the relationship between police and criminal suspects in

custodial interrogation.” 25 Obviously, we are bound by Davis.

But unlike the Majority, I would not erode Miranda further.

Our precedents do not support the Majority’s narrow

20

Smith v. Illinois, 469 U.S. 91, 95 (1984) (citation omitted).

21

Davis, 512 U.S. at 458 (quotation marks and citation

omitted).

22

McNeil v. Wisconsin, 501 U.S. 171, 177 (1991) (citing

Roberson, 486 U.S. at 682).

23

Roberson, 486 U.S. at 683.

24

Davis, 512 U.S. at 461–62.

25

Id. at 467–68.

7

construction of topic-specific invocations of the right to

counsel. Rather, Edwards and its progeny convince me that,

once a suspect invokes the right to counsel as to one aspect of

the police’s investigation, the police may not continue to

question him, while still in custody and still without counsel,

about any aspect of their investigation.

B.

The Supreme Court has never held that topic-specific

invocations of the Fifth Amendment right to counsel are

“limited” to the identified topics. 26 Before today, neither had

we. Only one other circuit has done so in a published in

opinion, 27 relying (like the Majority) on Connecticut v.

Barrett. 28 A handful of district and state courts have done the

same.

None of these courts has explained, however, why

Barrett supports holding that police may continue questioning

a suspect after he has invoked his right to counsel on a topic

that is germane to their investigation. Simply put, it does not.

Barrett did not involve a topic-specific invocation. Rather,

Barrett told police “that he would not give a written statement

unless his attorney was present but had ‘no problem’ talking

about the incident.” 29 The Supreme Court held that Barrett’s

subsequent oral statements were admissible. 30

26

But see Roberson, 486 U.S. at 684 (alluding to the possibility

of topic-specific invocations in a counterfactual).

27

United States v. Ivy, 929 F.2d 147, 152–53 (5th Cir. 1991).

28

479 U.S. 523 (1987).

29

Barrett, 479 U.S. at 525.

30

Id. at 529.

8

Even if Barrett had not affirmatively stated his

willingness to undergo unlimited oral interrogation, 31

however, Barrett’s invocation as to written statements is not

analogous to a topic-specific invocation. Notwithstanding the

Barrett Court’s dictum that Barrett’s invocation would have

been effective to exclude written statements, Miranda

provided for the right to the presence of counsel for a specific

purpose—i.e., custodial interrogation. 32 Barrett’s invocation

did not suggest that he felt unable to handle the pressures of

interrogation on any topic. The act of writing down a statement

does not involve interrogation to any extent that providing an

oral statement does not already involve. It thus is not

surprising that asking for counsel as to only written statements

is not sufficient to force police to stop oral questioning

altogether. 33 By contrast, a topic-specific invocation relates

31

See United States v. Martin, 664 F.3d 684, 689 (7th Cir.

2011) (holding that lack of explicit consent to further

questioning was not dispositive).

32

See McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)

(explaining that Edwards applies only where the suspect asks

“for the particular sort of lawyerly assistance that is the subject

of Miranda”—“the assistance of an attorney in dealing with

custodial interrogation by the police”).

33

Some courts have similarly held that a suspect’s refusal to

sign a form or take a polygraph without counsel is a “limited”

invocation. See, e.g., United States v. Oba, 978 F.2d 1123,

1130 (9th Cir. 1992); Stumes v. Solem, 752 F.2d 317, 320–21

(8th Cir. 1985). Like Barrett’s refusal to make a written

statement, however, those refusals do not express an inability

to handle the specific type of pressures identified in Miranda.

To be clear, I do not suggest that these invocations (or Barrett’s

invocation) are completely unenforceable under Miranda.

9

directly to the suspect’s ability to deal with the pressures of

custodial interrogation without legal assistance.

Here, Rought indicated that he was unable to deal with

those pressures as to at least some topics. If a suspect

unequivocally states that he cannot handle an interrogation

topic without counsel, all interrogation should stop

immediately. We should not “adopt a regime in which

Edwards’ protection . . . could pass in and out of existence” 34

depending on the topic being discussed. “Vagaries of this sort

spread confusion through the justice system and lead to a

consequent loss of respect for the underlying constitutional

principle.” 35

Because Rought invoked his right to counsel as to at

least one topic of interrogation, Agent Whitehead should have

stopped all interrogation, including questions regarding drug

activity in Wilkes-Barre. Yet, Agent Whitehead immediately

continued questioning Rought.

I would reverse the District Court’s Order denying

Rought’s Motion to Suppress and hold that all of Rought’s

statements after his invocation are inadmissible.

Rather, I conclude that they are inapposite and likely do not

require police to stop all questioning because, unlike Rought’s

invocation, they do not suggest that the suspect was unable to

deal with custodial interrogation specifically.

34

Minnick v. Mississippi, 498 U.S. 146, 154 (1990).

35

Id. at 155.

10

II.

A.

Even assuming, however, that police can continue

questioning about other topics not mentioned in a request for

counsel, I tentatively agree that the District Court did not

clearly err in holding that Rought’s invocation was limited to

“the subject of Mr. Carichner,” 36 but only insofar as “the

subject of Mr. Carichner” includes anything about Carichner

and any drug sharing between Rought and Carichner. To the

extent that the District Court construed Rought’s invocation as

limited only to Carichner’s death, it clearly erred. Agent

Whitehead asked, “Let’s talk about Dana? What happened

there?” Rought responded, “I don’t really want to talk about

that aspect without my lawyer because, like, that’s a serious

situation. I mean, they’re trying to roof me . . . .” No

reasonable construction of that statement would allow the

District Court to find that it was limited to Carichner’s death.

Whitehead said, “Let’s talk about Dana,” not “Let’s talk about

Dana’s death”; he asked, “What happened there,” not “What

happened to Carichner.” These statements are not susceptible

36

Appx. 97. I note, however, that even this broader

construction survives only because of our generous standard of

review. The more reasonable construction of Rought’s

invocation is that it covered everything for which the

government is “trying to roof” him (i.e., send him to prison).

Thus, if we were reviewing the invocation de novo, I would

hold that a reasonable police officer would construe it as

covering every topic that could reasonably have led to

incriminating statements supporting the charge in the original

Indictment.

11

to such a narrow reading.

The Majority holds that “that aspect” was limited to “the

circumstances of Carichner’s death” in part because Rought

had already “openly spoke[n] about other facets of his own

criminal conduct.” But a suspect can invoke his rights even as

to topics about which he has previously spoken. Moreover, the

charges on which the government was trying to “roof” Rought

(send him to prison) required proof of drug distribution, not

merely that Rought caused Carichner’s death.

B.

The Majority holds that Rought reinitiated discussion

about Carichner when he said, “you’re trying to say that I killed

my friend.” Not so. Before Rought said anything, Whitehead

continued the interrogation by asking about Derby and drug

dealing’s effects on the “community.”

The District Court believed that “[t]he questioning

about L.B. and Mr. Derby, a person to whom L.B. sold drugs,

were subjects distinct from that of the circumstances

surrounding Mr. Carichner.” 37 Again, I disagree. Rought

allegedly provided Carichner with drugs obtained from L.B.,

causing his death. Derby similarly died because of L.B.’s

drugs. Inevitably, focusing on Derby’s death and the effects

on the “community” would lead back to Carichner’s similar

death and its similar effects on the community. Indeed, earlier

in the interrogation, Whitehead said that “a tragedy resulted

from your actions. And not just yours . . . . This is what’s going

on daily in the community.”

37

Appx. 97.

12

Nor did Whitehead try to turn the conversation back to

L.B. He said that he wanted to talk about L.B. because he was

“trying to make sense of it,” i.e., make sense of the overdoses.

Only then, when questioned about L.B. in that context, did

Rought say, “you’re trying to say that I killed my friend.”

Rought’s statement did not change the subject of the

conversation. At most, Rought made a passing reference to the

charges against him while talking about how other drug

dealers were “killing [his] friends”—the same topic Whitehead

had already brought up in his questions about Derby, the

“community,” and “wanting to understand” the overdoses.

This passing reference does not show a “desire for a

generalized discussion” about topics Rought explicitly said he

would not discuss without counsel—at least not any more than

Whitehead’s questioning had already brought up those topics.

Yet, Whitehead took this as an invitation: “[W]e’re not saying

you killed him, James, but what we’re saying is that, um, you

had a role. . . . and I’m sure you feel like shit. . . . [N]one of us

are going to say that you went there with intent and malice.”

Whitehead’s questions and statements were directed at

Rought. His question about Derby was made in connection

with his statements about being “caught in a bad spot,”

“help[ing] the community,” and a slew of others. They were

provocative: “I’m sure you feel like shit.” And at this point,

Whitehead could clearly see that Rought was distraught over

the loss of his friends. Goading a defendant with comments

about the loss of his friends and hurling accusations at him in

an FBI interrogation room is custodial interrogation. 38

38

Cf. United States v. Lafferty, 503 F.3d 293, 302 (3d Cir.

2007) (holding that police did not “scrupulously honor”

13

Accordingly, the interrogation was reinitiated by Whitehead,

not Rought.

III.

In conclusion, this case is a prime example of why

topic-specific invocations should not be “limited.”

Interrogations are too messy, and the pressures they exert too

subtle and susceptible to police exploitation. Because I

disagree with the Majority’s new rule and its application of that

rule to the facts of this case, I respectfully dissent. I would

suppress all of Rought’s statements after his invocation of the

right to counsel. In the alternative, if we were to allow limited

invocation of the right to counsel, I would hold that Rought did

not waive his request for counsel and similarly that Rought’s

statements after the invocation of the right to counsel should

be suppressed.

invocation of right to remain silent by placing defendant in

interrogation room with codefendant while they interrogated

the codefendant).

14