Petition for Writ of Certiorari — Juan Manuel Contreras-Zamora, Petitioner v. United States

No. ___________

________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

________________________________________________________

October Term, 2021

________________________________________________________

JUAN MANUEL CONTRERASCONTRERAS-ZAMORA,

ZAMORA

Petitioner

v.

UNITED STATES OF AMERICA,

AMERICA

Respondent

________________________________________________________

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

________________________________________________________

________________________________________________________

PETITION FOR WRIT OF CERTIORARI

________________________________________________________

JOHN A. KUCHERA

210 N. 6th St.

Waco, Texas 76701

(254) 754-3075

(254) 756-2193 (facsimile)

johnkuchera@210law.com

SBN 00792137

Attorney for Petitioner

i

Question Presented

1. If, during a criminal interrogation, the suspect states, “Look man, I’m

going to tell you just like this; I need my lawyer,” must there be some

lapse of time before the suspect can be deemed to have re-initiated the

interrogation?

ii

Table of Contents

Page

Question Presented

ii

Table of Contents

iii-iv

Table of Authorities

v-x

Citation to Opinion Below

1

Jurisdiction

1-2

Constitutional Provision

3

Statement of the Case

4-7

First Reason for Granting the Writ: The Fifth Circuit’s decision 8-11

is contrary to Supreme Court precedent (the Edwards rule)

regarding what constitutes a suspect’s re-initiation of an

interrogation.

Writ:: In every published circuit 11-20

Second Reason for Granting the Writ

court opinion where a suspect has been deemed to have

re-initiated an interrogation, there has been an appreciable

lapse of time between invocation of counsel and the re-initiation.

Granting

Writ:: The Fifth Circuit’s decision 21-22

Third Reason for Gra

nting the Writ

is contrary to Supreme Court precedent in that, absent some

lapse of time after a suspect invokes his right to counsel, it is

impossible for a suspect to be deemed to have re-waived his

Miranda rights – an absolute necessity for re-initiation.

iii

Writ:: This Court should address 23-25

Fourth Reason for Granting the Writ

the distinction between a suspect’s re-initiation of an

interrogation and a suspect’s spontaneous inculpatory outburst.

Writ:: The Ninth and Eleventh

Fifth Reason for Granting the Writ

Circuits, in circumstances similar to this case, have held that

the suspect did not re-initiate interrogation, and that his

Miranda rights were violated.

25-30

Conclusion

30

Certificate of Service

31

Appendix A: Opinion of Fifth Circuit Court of Appeals

Appendix B: Fifth Circuit order denying petition for rehearing en banc

iv

Table of Authorities

Page(s)

Cases

Acosta v. Artuz,

575 F.3d 177 (2d Cir. 2009) ................................................................ 13

Bannister v. Armontrout,

4 F.3d 1434 (8th Cir. 1993) ................................................................. 17

Bobby v. Dixon,

565 U.S. 23 (2011) ............................................................................... 12

Bradford v. Davis,

923 F.3d 599 (9th Cir. 2019) ............................................................... 18

Edwards v. Arizona,

451 U.S. 477 (1981) ........................................ 8, 9, 11, 22, 26, 27, 29, 30

Fike v. James,

833 F.2d 1503 (11th Cir. 1987) ........................................................... 20

Ford v. Hall,

546 F.3d 1326 (11th Cir. 2008) ........................................................... 19

Henderson v. Singletary,

968 F.2d 1070 (11th Cir. 1992) ........................................................... 20

Henness v. Bagley,

644 F.3d 308 (6th Cir. 2011) ............................................................... 15

Hill v. Brigano,

199 F.3d 833 (6th Cir. 1999) ............................................................... 15

Holman v. Kemna,

212 F.3d 413 (8th Cir. 2000) ............................................................... 17

Howard v. Moore,

131 F.3d 399 (4th Cir. 1997) ............................................................... 13

v

Jackson v. Frank,

348 F.3d 658 (7th Cir. 2003) ............................................................... 16

Jacobs v. Singletary,

952 F.2d 1282 (11th Cir. 1992) ........................................................... 19

Lamb v. Peyton,

273 F. Supp. 242 (W.D. Va. 1967) ...................................................... 23

Martinez v. Cate,

903 F.3d 982 (9th Cir. 2018) ................................................... 25, 26, 27

Maryland v. Shatzer,

559 U.S. 98 (2010) ......................................................................... 11, 21

McCree v. Housewright,

689 F.2d 797 (8th Cir. 1982) ............................................................... 18

McKinney v. Hoffner,

830 F.3d 363 (6th Cir. 2016) ............................................................... 24

McKinney v. Ludwick,

649 F.3d 484 (6th Cir. 2011) ............................................................... 15

McNeil v. Wisconsin,

501 U.S. 171 (1991) ............................................................................. 23

Michigan v. Harvey,

494 U.S. 344 (1990) ............................................................................. 10

Minnick v. Mississippi,

498 U.S. 146 (1990) ............................................................................... 9

Miranda v. Arizona,

440 U.S. 436 (1966) ........................................ 7, 8, 10, 21, 22, 24, 25, 27

Montejo v. Louisiana,

556 U.S. 778 (2009) ............................................................................. 23

vi

Moran v. Burbine,

475 U.S. 412 (1986) ............................................................................. 22

North Carolina v. Butler,

441 U.S. 369 (1979) ............................................................................. 22

Obershaw v. Lanman,

453 F.3d 56 (1st Cir. 2006) ................................................................. 12

Oregon v. Bradshaw,

462 U.S. 1039 (1983) ............................................................... 10, 11, 21

Patterson v. Illinois,

487 U.S. 285 (1988) ............................................................................. 16

Pickens v. Gibson,

206 F.3d 988 (10th Cir. 2000) ............................................................. 19

Pittman v. Black,

764 F.2d 545 (8th Cir. 1985) ............................................................... 17

Rhode Island v. Innis,

446 U.S. 291 (1980) ................................................................... 8, 26, 29

Robinson v. Percy,

738 F.2d 214 (7th Cir. 1984) ............................................................... 16

Shaneberger v. Jones,

615 F.3d 448 (6th Cir. 2010) ............................................................... 16

Smith v. Illinois,

469 U.S. 91 (1984) ............................................................................... 21

Tolliver v. Sheets,

594 F.3d 900 (6th Cir. 2010) ............................................................... 24

United States v. Anthony,

474 F.2d 770 (5th Cir. 1973) ............................................................... 14

vii

United States v. Bentley,

726 F.2d 1124 (6th Cir. 1984) ............................................................... 9

United States v. Blake,

571 F.3d 331 (4th Cir. 2009) ............................................................... 13

United States v. Carrillo,

660 F.3d 914 (5th Cir. 2011) ............................................................... 15

United States v. Cavallino,

498 F.2d 1200 (5th Cir. 1974) ............................................................. 14

United States v. Colon,

835 F.2d 27 (2d Cir. 1987) .................................................................. 12

United States v. Dougall,

919 F.2d 932 (5th Cir. 1990) ............................................................... 14

United States v. Gomez,

927 F.2d 1530 (11th Cir. 1991) ............................................... 28, 29, 30

United States v. Gonzalez,

764 F.3d 159 (2d Cir. 2014) ................................................................ 13

United States v. Gordon,

655 F.2d 478 (2d Cir. 1981) ................................................................ 13

United States v. Hampton,

675 F.3d 720 (7th Cir. 2012) ............................................................... 16

United States v. Hodge,

487 F.2d 945 (5th Cir. 1973) ............................................................... 14

United States v. Hopkins,

433 F.2d 1041 (5th Cir. 1970) ............................................................. 14

United States v. Huerta,

239 F.3d 865 (7th Cir. 2001) ............................................................... 16

viii

United States v. Jackson,

189 F.3d 502 (7th Cir. 1999) ............................................................... 16

United States v. Jackson,

852 F.3d 764 (8th Cir. 2017) ............................................................... 24

United States v. Johnson,

812 F.2d 1329 (11th Cir. 1986) ........................................................... 24

United States v. Kroesser,

731 F.2d 1509 (11th Cir. 1984) ........................................................... 20

United States v. Lame,

716 F.2d 515 (8th Cir. 1983) ............................................................... 24

United States v. Mills,

1 F.3d 414 (6th Cir. 1993) ................................................................... 16

United States v. Morgan,

738 F.3d 1002 (9th Cir. 2013) ............................................................. 18

United States v. Most,

789 F.2d 1411 (9th Cir. 1986) ............................................................. 18

United States v. Obregon,

748 F.2d 1371 (10th Cir. 1984) ........................................................... 19

United States v. Palega,

556 F.3d 709 (8th Cir. 2009) ............................................................... 17

United States v. Perkins,

608 F.2d 1064 (5th Cir. 1979) ............................................................. 14

United States v. Sawyer,

588 F.3d 548 (8th Cir. 2009) ............................................................... 17

United States v. Straker,

800 F.3d 570 (D.C. Cir. 2015) ............................................................. 20

ix

United States v. Thierman,

678 F.2d 1331 (9th Cir. 1982) ............................................................. 18

United States v. Thongsophaporn,

503 F.3d 51 (1st Cir. 2007) ................................................................. 12

United States v. Valdez,

146 F.3d 547 (8th Cir. 1998) ............................................................... 17

United States v. Velasquez,

885 F.2d 1076 (3d Cir. 1989) .............................................................. 13

United States v. Williams,

612 F.3d 417 (6th Cir. 2010) ............................................................... 15

United States v. Willis,

826 F.3d 1265 (10th Cir. 2016) ........................................................... 19

Willie v. Maggio,

737 F.2d 1372 (5th Cir. 1984) ............................................................. 14

Witt v. Wainwright,

714 F.2d 1069 (11th Cir. 1983) ........................................................... 19

Other Authorities

U.S. Const. amend. V ................................................................................ 3

Webster’s New World Dictionary (2nd college ed. 1970) .................. 10, 23

x

PETITION FOR WRIT OF CERTIORARI

Petitioner Juan Manuel Contreras-Zamora (Contreras) respectfully

petitions for a writ of certiorari to review the judgment of the United

States Court of Appeals for the Fifth Circuit.

Citation to Opinion Below

The opinion of the United States Court of Appeals for the Fifth

Circuit affirming Contreras’ sentence is styled: United States v.

Contreras-Zamora, ___ F. App’x ___, 2022 U.S. App. LEXIS 12589 (5th

Cir. 2022).

Jurisdiction

The opinion of the United States Court of Appeals for the Fifth

Circuit affirming Contreras’ sentences and convictions was announced

May 10, 2022 and is attached hereto as Appendix A. The Fifth Circuit’s

denial of Contreras’ petition for rehearing en banc was issued May 31,

2022 and is attached hereto as Appendix B. Pursuant to Supreme Court

Rule 13.3, this Petition has been filed within 90 days of the date of the

1

order denying the petition for rehearing en banc. This Court’s jurisdiction

is invoked pursuant to 28 U.S.C. § 1254(1).

2

Constitutional Provision

U.S. Const. amend. V:

No person . . . shall be compelled in any criminal case to be a

witness against himself[.]

3

Statement of the Case

Contreras was charged and convicted (following a jury trial) of the

following three offenses:

• Conspiracy to distribute methamphetamine,

• Attempt to possess with intent to distribute methamphetamine,

and

• Possession of a firearm in furtherance of a drug trafficking crime.

The main issue on appeal was whether the trial court erred in denying

Contreras’ motion to suppress statements he made during a post-arrest

interrogation. The relevant facts were as follows.

Following a traffic stop, officers searched Contreras’ vehicle and

found a backpack containing (1) a glass pipe with methamphetamine

residue in it, (2) a small flip phone, (3) three rubber-banded stacks of

money, and (4) a firearm. Contreras was arrested and taken to jail. At

the jail, DEA Task Force Officers William Snow, Greg Jones and Special

Agent Evan Binkley read Contreras his Miranda rights and began

interrogating him. After approximately thirteen minutes, Officer Snow

4

told Contreras he was lying, Contreras immediately responding that he

wanted a lawyer:

Ofr. Snow: You know you’re probably lying to me, right?

Contreras : Look man. I’m going to tell you just like this. I need my

lawyer.

For the next fourteen seconds, Agent Snow, Agent Jones and

Contreras engaged in a heated exchange, with the agents talking over

Contreras:

Contreras: Look, man. I’m going to tell you just like this. I need my

lawyer.

Ofr. Snow: Okay.

Contreras: You know, you want to talk to me because you know –

Ofr. Snow: We were trying to give you an opportunity is what we’re

trying to do.

Contreras: No. I mean – I mean, you’re talking –

Ofr. Snow: We’re being cool.

Contreras: -- about notebook. You’re talking about phones

(indiscernible) –

Ofr. Snow: No. I’m just telling you what they found in the car.

Contreras: -- all kinds of shit when I – I know what I got. I know I

have $15,000. I have a fucking .25. That was it.

Ofr. Snow: Okay.

5

Ofr. Jones: Hey, listen – listen to this.

Contreras: And I (indiscernible) you know what I mean?

Ofr. Jones: Hey, I’m not going to ask you any questions. I just want

you to listen.

Agent Jones then took over the session and for the next three minutes

threatened Contreras with the amount of time Contreras would spend in

prison if he didn’t talk. For example:

But you're not messing with a little state case anymore. Okay?

We're with the DEA. So if we see in all our investigation that

you've been dealing dope through your phone and through

those ledgers, and we add it all up, we're going to charge you

with all that dope out of the book. Now, you want to play the

hard role because you've been down before and you think you

know the system, then you play the hard role. We're trying to

give you an opportunity to come clean. And we're being cool

about it. Now, if you want to be hard and I ain't going to be a

snitch and all that like a lot of these other motherfuckers try

to do, let me tell you, about 98 percent of them sit here and say

that to ya'll. But when they get in here with the room with us,

they talk.

Because you know what? If you've been down, you know you

don't want to do 30 years being down. Because from what I'm

hearing that's in those books, you going to be looking at close

to that.

6

Contreras did eventually make statements inculpating himself (which

were the basis for the Government’s case as to all three charged offenses).

Contreras moved to suppress the statements he made after

invoking his right to counsel, arguing that once he had invoked his right

to counsel, the interrogating officers had a duty under Miranda v.

Arizona to stop the conversation. The Government argued that Contreras

had reinitiated the interrogation and therefore the officers had no duty

to stop the conversation. The district court agreed with the Government’s

argument and denied the motion to suppress without an evidentiary

hearing.

7

First Reason for Granting the Writ: The Fifth Circuit’s decision is

contrary to Supreme Court precedent (the Edwards rule) regarding what

constitutes a suspect’s re-initiation of an interrogation.

Custodial

interrogation

is

“questioning initiated

by

law

enforcement officers after a person has been taken into custody or

otherwise deprived of his freedom of action in any significant way."

Miranda v. Arizona, 440 U.S. 436, 444 (1966). Interrogation refers not

only to express questioning but also to any words or actions on the part

of the police (other than those normally attended 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). This definition “focuses primarily upon the perceptions

of the suspect, rather than the intent of the police.” Id. at 301.

In Edwards v. Arizona, 451 U.S. 477 (1981), a murder suspect in

custody informed interrogating officers “I want an attorney before

making a deal,” at which time questioning ceased. Id. at 479. When

detectives arrived the next morning to speak with the suspect, he stated

he did not want to speak with them but was told by a guard that he had

to speak with them. Id. After listening to taped statement of an alleged

8

accomplice who had implicated him, the suspect stated “I’ll tell you

anything you want to know, but I don’t want it on tape,” at which time

he then implicated himself in the crime. Id. Evidence of the suspect’s

confession was admitted at his trial and he was convicted. Id. at 480. The

Supreme Court reversed. The following holding as come to be known as

the Edwards rule1:

[W]e now hold that when an accused has invoked his right to

have counsel present during custodial interrogation, a valid

waiver of that right cannot be established by showing only

that he responded to further police-initiated custodial

interrogation even if he has been advised of his rights. We

further hold that an accused, such as Edwards, having

expressed his desire to deal with the police only through

counsel, is not subject to further interrogation by the

authorities until counsel has been made available to him,

unless the accused himself initiates further communication,

exchanges, or conversations with the police. (Emphasis

added.)

Id. at 484-85. “The merit of the Edwards decision lies in the clarity of its

command and the certainty of its application.” Minnick v. Mississippi,

498 U.S. 146, 151 (1990). The Supreme Court later noted that this rule

is "designed to prevent police from badgering a defendant into waiving

1 See United States v. Bentley, 726 F.2d 1124, 1127 (6th Cir. 1984).

9

his previously asserted Miranda rights." Michigan v. Harvey, 494 U.S.

344, 350 (1990).

In Oregon v. Bradshaw, 462 U.S. 1039 (1983), this Court addressed

what constitutes a suspect’s re-initiating of an interrogation. The

petitioner – convicted of (among other things) manslaughter – had been

arrested and advised of his Miranda rights which he invoked, at which

time the interrogating officer terminated the conversation. Id. at 104142. Sometime later, while being transported from the police station to the

county jail, the petitioner inquired of a police officer “[w]ell, what is going

to happen to me now?” Id. at 1042. The next day he took a polygraph

examination, and upon being advised he had not been telling the truth,

admitted that he had been at the wheel of the vehicle that killed the

decedent. Id. The Supreme Court held that the question asked by the

petitioner constituted “initiating” further conversation:

There can be no doubt in this case that in asking, "Well, what

is going to happen to me now?", respondent "initiated" further

conversation in the ordinary dictionary2 sense of that word.

Id. at 1045.

2 “Initiate” means (among other things) to “introduce by first doing; start.” Webster’s

New World Dictionary 725 (2nd college ed. 1970).

10

Although ambiguous, the respondent's question in this case

as to what was going to happen to him evinced a

willingness and a desire for a generalized discussion about

the investigation. . . . On these facts we believe that there was

not a violation of the Edwards rule. (Emphasis added.)

Id. at 1045-46. “Initiating” can only occur if it is done “at the suspect’s

own instigation[.]” Maryland v. Shatzer, 559 U.S. 98, 104 (2010).

In this case, there was no break in the action. After the heated

exchange between Agents Snow, Agent Jones and Contreras, the Agents

immediately launched into lecture to Contreras about how he was going

to spend life in prison if he didn’t talk. “This was not at [Contreras’]

suggestion or request.” Edwards, 451 U.S. at 487.

Writ:: In every published circuit

Second Reason for Granting the Writ

court opinion where a suspect has been deemed to have re-initiated an

interrogation, there has been an appreciable lapse of time between

invocation of counsel and the re-initiation.

What follows is a nearly exhaustive list of forty-nine published

federal circuit court cases (and one Supreme Court case) wherein a

suspect in custody has invoked his or her right to counsel (or right to

remain silent) and been held to have subsequently re-initiated

11

communication with law officers. In each and every case, there was a

pause in the action, a lapse of time, between the invocation of right to

counsel and the suspect reaching out to initiate further conversation.

Supreme Court

Bobby v. Dixon, 565 U.S. 23, 25-26, 32 (2011) (Four hours between

end of interrogation and suspect’s unsolicited statement to police, “I want

to tell you what happened”).

First Circuit

United States v. Thongsophaporn, 503 F.3d 51, 56 (1st Cir. 2007)

(Five minutes after stating he did not wish to answer any questions,

suspect asked agent “what was going on.”); Obershaw v. Lanman, 453

F.3d 56, 58 (1st Cir. 2006) (After suspect spent “some time outside with

his dog,” suspect told officers “this wasn’t premeditated,” and “he didn’t

plan it.”).

Second Circuit

United States v. Colon, 835 F.2d 27, 29 (2d Cir. 1987) (More than

two days after invoking his right to counsel, while being transported to

the courthouse, suspect spontaneously stated that fellow arrestee “had

12

nothing to do with the theft of the checks.”); United States v. Gonzalez,

764 F.3d 159, 164 (2d Cir. 2014) (When officers began to leave, suspect

then said he want to speak to the agents and told them not to leave);

United States v. Gordon, 655 F.2d 478, 482 (2d Cir. 1981) (At FBI Field

Office, after being informed of the basis for his arrest, suspect wanted to

furnish information concerning “somebody else that should be arrested

for the same thing.”); Acosta v. Artuz, 575 F.3d 177, 181-82 (2d Cir. 2009)

(Two hours after invoking his right to counsel, suspect asked detective if

he could speak to prosecutor).

Third Circuit

United States v. Velasquez, 885 F.2d 1076, 1085-86 (3d Cir. 1989)

(Half hour after interview was terminated, suspect asked arresting

officer to get investigators so he could ask “[w]hat is going to happen?”).

Fourth Circuit

Howard v. Moore, 131 F.3d 399, 413 (4th Cir. 1997) (“[A] week and

a half or maybe two weeks” after being arrested, suspect confessed to

federal probation officer.); United States v. Blake, 571 F.3d 331, 336-37

13

(4th Cir. 2009) (“[A]bout one half hour” after detective spoke with

suspect, suspect inquired “I can still talk to you?”).

Fifth Circuit

United States v. Dougall, 919 F.2d 932, 936 (5th Cir. 1990) (“The

agents sat quietly” after suspect invoked his right to counsel.); Willie v.

Maggio, 737 F.2d 1372, 1384 (5th Cir. 1984) (Six days between invocation

of right to counsel and suspect’s statement to jailer that he wanted to

speak to FBI agent); United States v. Anthony, 474 F.2d 770, 772 n.4 (5th

Cir. 1973) (After suspect invoked his right to counsel, and after asking

(and being told) what he was charged with, suspect stated, among other

things, that he was a good thief.); United States v. Hopkins, 433 F.2d

1041, 1044 (5th Cir. 1970) (After suspect refused to sign waiver form, and

FBI agent got up to leave, suspect stated “I didn’t steal the car in the first

place.”); United States v. Hodge, 487 F.2d 945, 946 (5th Cir. 1973) (After

suspect requested an attorney, he changed his mind and volunteered to

make a statement); United States v. Cavallino, 498 F.2d 1200, 1203 (5th

Cir. 1974) (Suspect, after being returned to the “booking cell,” sent a

message to police sergeant that he wanted to speak with him); United

States v. Perkins, 608 F.2d 1064, 1066 (5th Cir. 1979) (As DEA agents

14

attempted to terminate discussion, suspect spent 45 minutes posing

hypothetical questions to agents, at which time the discussion was

terminated by agents because “nothing was getting resolved”; suspect

then asked “Well, what happens now?”); United States v. Carrillo, 660

F.3d 914, 919 (5th Cir. 2011) (The next day after Carrillo invoked his

right to counsel, the detective received a call from an officer at the jail,

stating that Carrillo wanted to talk to him.).3

Sixth Circuit

McKinney v. Ludwick, 649 F.3d 484, 491 (6th Cir. 2011) (Entire

night passed between detective’s death penalty comment and suspect’s

request to talk about his case); Henness v. Bagley, 644 F.3d 308, 319 (6th

Cir. 2011) (After interview was terminated, suspect told a friend by phone

that if the detectives would come see him, he would tell them about the

murder); Hill v. Brigano, 199 F.3d 833, 841-42 (6th Cir. 1999) (Two days

after invoking right to counsel, suspect asked to speak to sheriff); United

States v. Williams, 612 F.3d 417, 421 (6th Cir. 2010) (Six hours elapsed

between suspect’s invocation of right to counsel and suspect’s request to

3 Carillo was the case cited by the Government and relied upon by the district court

in denying Contreras’ motion to suppress.

15

speak to an investigator “about the case.”); United States v. Mills, 1 F.3d

414, 417 (6th Cir. 1993) (After arraignment, suspect approached ATF

agents and asked to speak to them); Shaneberger v. Jones, 615 F.3d 448,

454 (6th Cir. 2010) (Suspect “chose to speak to an entirely different officer

at a different location and time[.]”).

Seventh Circuit

United States v. Huerta, 239 F.3d 865, 868 (7th Cir. 2001) (After

detectives took suspect’s shoes as evidence and began to walk away,

suspect called to them to come back and informed them she wanted to

talk); Robinson v. Percy, 738 F.2d 214, 217-18 (7th Cir. 1984),

disapproved of on other grounds, Patterson v. Illinois, 487 U.S. 285 (1988)

(Suspect told police sergeant he had to “clear the air” or “get something

off his chest.”); United States v. Hampton, 675 F.3d 720, 728-29 (7th Cir.

2012) (“After a long pause . . . hemming for a few minutes,” suspect stated

unambiguously that he wanted to continue without a lawyer.); Jackson

v. Frank, 348 F.3d 658, 662 n.4 (7th Cir. 2003) (Detective was gathering

his material and preparing to leave the room when suspect confessed);

United States v. Jackson, 189 F.3d 502, 511 (7th Cir. 1999) (As detective

led suspect back to his cell, suspect stated “that he wished to speak with

16

the police to discuss his arrests for driving with a revoked license and

possessing a controlled substance.”).

Eighth Circuit

Holman v. Kemna, 212 F.3d 413, 419 (8th Cir. 2000) (Suspect

decided day after interview terminated, and after talking to his

stepfather, not to wait any longer in speaking to deputy); Bannister v.

Armontrout, 4 F.3d 1434, 1436 (8th Cir. 1993) (Upon entering jail,

suspect told officer “he would like to talk to the person in charge”); United

States v. Palega, 556 F.3d 709, 715 (8th Cir. 2009) (Thirty minutes

elapsed between suspect’s invocation of right to counsel and request to

speak to officer); Pittman v. Black, 764 F.2d 545, 546 (8th Cir. 1985) (As

officer “gathered his papers and prepared to leave the room” suspect

asked whether the other suspects were trying to put all the blame on

him.); United States v. Valdez, 146 F.3d 547, 551 (8th Cir. 1998) (Suspect

“initiated further conversation by telling agents as they were leaving the

room that he had changed his mind and wanted to answer questions.”);

United States v. Sawyer, 588 F.3d 548, 552 (8th Cir. 2009) (An hour and

a half after stating he had “nothing to say,” suspect, upon learning that

his shoe matched the print taken from the bank counter, began asking

17

questions about the case); McCree v. Housewright, 689 F.2d 797, 800 (8th

Cir. 1982) (Approximately six hours after invoking right to counsel,

suspect stated to officer “I want to tell you just exactly what happened.”).

Ninth Circuit

United States v. Thierman, 678 F.2d 1331, 1332-33 (9th Cir. 1982)

(When detectives ceased questioning and said “That’s it, let’s go talk to

the girl,” suspect stopped them and said he would turn over stolen money

orders if girl were left out of it); United States v. Most, 789 F.2d 1411,

1413-14 (9th Cir. 1986) (Suspect inquired as to (1) how his codefendant

girlfriend was, (2) what would happen to him, and (3) “What’s going on?”);

United States v. Morgan, 738 F.3d 1002, 1004 (9th Cir. 2013) (Suspect

gave a confession three hours after stating she did not need an attorney

and wanted to waive her right to counsel); Bradford v. Davis, 923 F.3d

599, 620-21 (9th Cir. 2019) (Approximately twenty-four hours elapsed

between suspect’s invocation and suspect’s call to detective that he

wanted to put a statement on the record.).

18

Tenth Circuit

Pickens v. Gibson, 206 F.3d 988, 993-94 (10th Cir. 2000) (After

being advised of the charges on which he was being booked, suspect

agreed to talk to officer.); United States v. Willis, 826 F.3d 1265, 1276

(10th Cir. 2016) (“As the agents prepared to leave, [suspect] asked if it

was too late to change his mind and to speak to them.”); United States v.

Obregon, 748 F.2d 1371, 1377-78 (10th Cir. 1984) (As Narcotics Agent

told suspect Agent was not going to ask suspect any questions, suspect

asked what would happen to him “if he helped me and told me what I

wanted to know.”).

Eleventh Circuit

Ford v. Hall, 546 F.3d 1326, 1338-39 (11th Cir. 2008) (After suspect

was advised he could call his attorney he began questioning Georgia

Bureau of Investigation agent about codefendant’s statement); Jacobs v.

Singletary, 952 F.2d 1282, 1293-94, 1295-96 (11th Cir. 1992) (Two hours

between suspect’s invocation of right to counsel and suspect’s question to

police officer as to why she was being detained at police station; seven

hours after invocation she told police lieutenant she wanted to talk to

him in private.); Witt v. Wainwright, 714 F.2d 1069, 1071 (11th Cir. 1983)

19

(After interrogation by FBI agent and assistant state prosecutor ceased,

suspect asked deputy “if all the sheriff’s murder cases were

solved[.]”);United States v. Kroesser, 731 F.2d 1509, 1514 (11th Cir.

1984) (During fingerprinting, suspect “broke down and tearfully voiced

his regrets at having gotten [codefendant] involved.”); Henderson v.

Singletary, 968 F.2d 1070, 1071-72 (11th Cir. 1992) (Suspect advised

deputy that he might talk later, and four months later while suspect was

being transported, he stated “[g]ive me a Pepsi and a pack of Winstons

and I’ll tell you about this shit[.]”);Fike v. James, 833 F.2d 1503, 1504-05

(11th Cir. 1987) (Suspect requested that sheriff’s officer speak with him,

was told to get some rest, and was then interviewed twelve hours later).

D.C. Circuit

United States v. Straker, 800 F.3d 570, 623 (D.C. Cir. 2015)

(suspect left a voicemail with agent asking agent to “call him back”

eighteen months after he was initially interrogated).

20

Writ:: The Fifth Circuit’s decision is

Third Reason for Granting the Writ

contrary to Supreme Court precedent in that, absent some lapse of time

after a suspect invokes his right to counsel, it is impossible for a suspect

to be deemed to have re-waived his Miranda rights – an absolute

necessity for re-initiation.

Even if a suspect is determined to have initiated further discussions

with the police, his responses to further questioning are still not

admissible absent a finding that the suspect “knowingly and intelligently

waived the right he invoked.” Smith v. Illinois, 469 U.S. 91, 94-95 (1984).

A Miranda waiver may be sufficient at the time of an initial attempted

interrogation, but it is not sufficient at the time of subsequent attempts

if the suspect requests the presence of counsel. Shatzer, 559 U.S. at 105.

The burden remains on the government to show that subsequent events

indicated a waiver of the right to counsel. Bradshaw, 462 U.S. at 1044.

In order to waive a previously-invoked right to counsel, the government

most demonstrate two things:

First, the relinquishment of the right must have been

voluntary in the sense that it was the product of a free and

deliberate choice rather than intimidation, coercion, or

deception. Second, the waiver must have been made with a

full awareness of both the nature of the right being abandoned

and the consequences of the decision to abandon it.

21

Moran v. Burbine, 475 U.S. 412, 421 (1986). “The courts must presume

that a defendant did not waive his rights[.]” North Carolina v. Butler,

441 U.S. 369, 373 (1979). The fact that a suspect responds to further

police questioning does not constitute a re-waiver of his Miranda rights:

[W]hen an accused has invoked his right to have counsel

present during custodial interrogation, a valid waiver of that

right cannot be established by showing only that he responded

to further police-initiated custodial interrogation even if he

has been advised of his rights.

Edwards, 451 U.S. at 484.

In this case, in part because the interrogating agents never stopped

talking, nothing remotely suggests that Contreras knowingly and

voluntarily re-waived his right to counsel. Therefore he could not have

re-initiated the interrogation.

22

Writ:: This Court should address

Fourth Reason for Granting the Writ

the distinction between a suspect’s re-initiation of an interrogation and a

suspect’s spontaneous inculpatory outburst.

The general rule is once a suspect invokes his right to counsel,

questioning must stop:

[O]nce . . . a defendant [internal quotation marks omitted] has

invoked his right to have counsel present, interrogation must

stop. . . . At that point, not only must the immediate contact

end, but "badgering"4 by later requests is prohibited.

Montejo v. Louisiana, 556 U.S. 778, 794-95 (2009). If police subsequently

initiate an encounter in the absence of counsel, the suspect’s statements

are presumed involuntary. McNeil v. Wisconsin, 501 U.S. 171, 177 (1991).

But what if the suspect makes a spontaneous outburst; i.e., he inculpates

himself at the same time he is invoking his right to counsel?

Spontaneous inculpatory outbursts are different from re-initiating

an interrogation in that the suspect makes inculpatory statements (not

asks a question) at the same time (or immediately thereafter) he is

invoking his right to counsel. See e.g. Lamb v. Peyton, 273 F. Supp. 242,

4 To “badger” means to “nag at.” Webster’s New World Dictionary 104 (2nd college ed.

1970).

23

245 (W.D. Va. 1967) (Before police chief had finished reading suspect his

Miranda rights, suspect stated “I took this truck and parked it in

Lynchburg”); United States v. Jackson, 852 F.3d 764, 770 (8th Cir. 2017)

(After suspect stated he would prefer to have an attorney present, he then

blurted out that he had been “slamming meth,” that he had been up for

several days and that the only sleep he had was in jail just prior to the

interview); Tolliver v. Sheets, 594 F.3d 900, 918 (6th Cir. 2010) (As officer

was preparing to go over Miranda rights with suspect, suspect broke in

and said “Let me tell you something . . . I am going to tell you right now,

okay?”); United States v. Lame, 716 F.2d 515, 520-21 (8th Cir. 1983)

(After suspect stated “maybe I should get a lawyer”, FBI agents remained

silent, at which time suspect quickly resumed his narrative without any

prompting from agents); United States v. Johnson, 812 F.2d 1329, 1330

(11th Cir. 1986) (Suspect requested that a lawyer be present during

questioning but “in the same breath” stated, “I know all about the checks

and where they came from.”); McKinney v. Hoffner, 830 F.3d 363, 373

(6th Cir. 2016) (Suspect’s statements, “only two seconds apart, said he

wanted an attorney and that he wanted to talk.”).

24

In this case, there was not a spontaneous outburst by Contreras

because he did not make any inculpatory statements during the backand-forth with the interrogating agents. He continued to deny that he

sold drugs.

Writ:: The Ninth and Eleventh

Fifth Reason for Granting the Writ

Circuits, in circumstances similar to this case, have held that the suspect

did not re-initiate interrogation, and that his Miranda rights were

violated.

In Martinez v. Cate, 903 F.3d 982 (9th Cir. 2018) the defendant

(Martinez) was arrested on a murder charge, had his Miranda rights read

to him, at which time he immediately asked “I can have an attorney?” Id.

at 988. Without a break, the detective then asked Martinez if he already

had an attorney (yes), the attorney’s name (Percy), whether Martinez had

spoken to his attorney (no), and whether Martinez would talk “but with

an attorney present?” Martinez replied: Yeah cuz I don’t know much

about the law” (cleaned up). Id. The following exchange then took place:

25

Detective: All I wanted was your side of the story. That's it. OK. So, I'm

pretty much done with you then. Um, I guess I don't know another

option but to go ahead and book you. OK. Because

Martinez: under? What am I being booked

Detective: You’re going to be booked for murder because I only got one

side of the story. OK.

Id. at 996. After additional back-and-forth about how Martinez was going

to get in touch with his attorney, Martinez eventually asked “what did

you want to talk to me about,” the detective stating that he just wanted

Martinez’s side of the story, and Martinez then agreeing to tell the truth

if that “helped him walk away.” (cleaned up). Id. at 989. The California

Court of Appeals ruled that Martinez’s statements were admissible. Id.

at 990. The Ninth Circuit disagreed:

We hold that the only reasonable interpretation of what

occurred between Navarro and Martinez is that Navarro

continued interrogating Martinez after the suspect had

clearly . . . invoked his right to counsel, and that Navarro

badgered Martinez into waiving that right.

Id. at 993.

Because [Detective] Navarro continued to interrogate

Martinez after Martinez had invoked his right to counsel,

Navarro violated the clearly-established rule from Edwards.

It was an unreasonable application of Innis and Edwards to

conclude otherwise.

Id. at 996.

26

The government argues that Martinez initiated further

conversation by asking, "[w]hat am I being booked under?" . .

. No fairminded jurist could interpret Martinez's statement as

a re-initiation of the conversation. For one, the conversation

between Navarro and Martinez never stopped. Initiate means

"to begin" and no reasonable jurist could review the transcript

of the interaction between Detective Navarro and conclude

that Martinez began the exchange about being booked for

murder.

Id. at 996.

In every other case where the Supreme Court has held that a

defendant initiated the communication with the police, there

was some break in questioning. (Emphasis added.)

Id. at 997.

The detective's statements linking Martinez's booking to his

invocation of the right to counsel, and the detective's

comments that Martinez would need to call his own attorney

from jail are exactly the type of badgering that Edwards was

crafted to prevent. (Emphasis added)

Id.

Second, even if Martinez did reinitiate, his statements are not

admissible because in light of the Edwards violation it is

presumed that Martinez's waiver of his right to counsel was

invalid. . . . No fairminded jurist could review this record,

conclude that the State overcame the Edwards presumption,

and hold that Martinez's waiver was voluntary.

Id.

[B]ecause custodial interrogation never stopped, the only

reasonable interpretation of Navarro's responses to

Martinez's invocation of the right to counsel is that the

detective was badgering the defendant into waiving his

previously asserted Miranda rights. (cleaned up)

Id. at 997-98.

27

In United States v. Gomez, 927 F.2d 1530 (11th Cir. 1991), after

Gomez was arrested and advised of his rights, he stated “he had been

sent to Tampa to pick up $7,000 in cash”; he refused to cooperate and

requested an attorney. Id. at 1532-33. The interviewing DEA agent

immediately told Gomez that he faced a sentence of from ten years to life

in prison and that the only way he could receive a lighter sentence was

by cooperating. Id. at 1533. Gomez then left the room and as he was being

returned to the holding cell, he asked another agent why he had been

arrested. Id. at 1533, 1536. When advised (incorrectly) as to what he was

charged with, Gomez “immediately expressed his desire to cooperate.” Id.

at 1536. The time between the DEA agent’s statement to Gomez that he

was in serious trouble and needed to cooperate and Gomez’s “cooperation”

was no more than a few minutes. Id. Gomez argued on appeal that the

statements made by the agents about possible sentences improperly

constituted further interrogation after he had requested counsel. Id. at

1537. The Eleventh Circuit agreed:

[T]he agents here continued to talk to Gomez after he

requested counsel, stressing the importance of cooperating. In

addition, Gomez's "initiation" of a conversation with [Agent]

Henley occurred almost immediately after the interrogation[.]

Id.

28

[T]he issue before us [is] whether the agents should have

known that agent Henley's statements to Gomez regarding

possible sentencing and the benefits of cooperation were

reasonably likely to illicit an incriminating response. In light

of the Supreme Court's opinion in Innis . . . these statements

clearly constituted further interrogation. [E]xplanations of

possible sentences and of the criminal justice system, though

seemingly innocent, are often designed to inform the accused

that cooperation may be beneficial[.]This type of helpfulness

is often used to indicate to the accused that the law

enforcement officers will "be good if the accused will be good,"

or infer "Why don't you be good and tell us about it?" . . . It

best serves all interests, especially law enforcement, to

remain close to the "bright line": interrogation must cease

when the accused in custody requests the presence of a lawyer

before further interrogation.

Id. at 1538.

The mere fact that agent Henley told Gomez that he need not

respond does not alleviate his duty to cease interrogation; that

would place the officer's artifice in interrogation over our

concern with the interrogatory environment. Once Gomez

requested an attorney, agent Henley should have respected

that request. Any information he had regarding cooperation

and sentencing could be addressed to the attorney.

Id.

The fact that Gomez began the conversation with agent

Hastings does not cure the infection of the further

interrogation.

Although Edwards permits

further

interrogation if the accused initiates the conversation, . . . the

validity of this waiver logically depends on the accused being

free from further interrogation. In other words, the

"initiation" must come prior to the further interrogation;

initiation only becomes an issue if the agents

follow Edwards and cease interrogation upon a request for

29

counsel. Once the agents have, as here, violated Edwards, no

claim that the accused "initiated" more conversation will be

heard. Indeed, Edwards would be rendered meaningless if

agents were permitted to continue interrogation after the

request for counsel, and then claim that the consequent

response by the accused represented initiation and permitted

a waiver of the asserted counsel right. (Emphasis added.)

Id. at 1538-39.

Conclusion

For the foregoing reasons, Petitioner Contreras respectfully urges

this Court to grant a writ of certiorari to review the opinion of the United

States Court of Appeals for the Fifth Circuit.

Respectfully submitted,

/s/ John A. Kuchera

JOHN A. KUCHERA

210 N. 6th St.

Waco, Texas 76701

(254) 754-3075

(254) 756-2193 (facsimile)

johnkuchera@210law.com

SBN. 00792137

Attorney for Petitioner

30

Certificate of Service

This is to certify that a true and correct copy of the above and

foregoing Petition for Writ of Certiorari has this day been mailed by the

U.S. Postal Service, First Class Mail, to the Solicitor General of the

United States, Room 5614, Department of Justice, 10th Street and

Constitution Avenue, N.W. Washington, D.C. 20530.

SIGNED this 10th day of June 2022.

/s/ John A. Kuchera

John A. Kuchera,

Attorney for Petitioner Juan Manuel Contreras-Zamora

31