New cases of interest

Here is a link to a few cases of interest that were provided me last week at the 49th VACLE Criminal Law seminar.

Virginia is in the Fourth Circuit which, I believe, has a reputation as slightly conservative leaning.

United States v. Abdallah, ___ F.3d___ (4th Cir. 18 December 2018).  Code 45 Alumni and friend Jim Wynn is one of the panel members.  This case involves two issues: invocation of the right to silence and the all-important Brady issue.


To invoke the right to remain silent or the right to counsel and thereby cut off questioning, the suspect’s invocation must be “unambiguous.” Berghuis v. Thompkins, 560 U.S. 370, 381-82 (2010) (request to remain silent); Davis v. United States, 512 U.S. 452, 459 (1994) (request for counsel). An invocation is unambiguous when a “reasonable police officer under the circumstances would have understood” the suspect intended to invoke his Fifth Amendment rights. Tice v. Johnson, 647 F.3d 87, 107 (4th Cir. 2011); Davis, 512 U.S. at 459. Accordingly, “a suspect need not speak with the discrimination of an Oxford don” to invoke his Fifth Amendment rights. Davis, 512 U.S. at 459; see also Emspak v. United States, 349 U.S. 190, 194 (1955) (explaining that “no ritualistic formula or talismanic phrase is essential in order to invoke” Fifth Amendment rights). This objective inquiry “‘avoids difficulties of proof and . . . provide[s] guidance to officers’ on how to proceed in the face of ambiguity.” Thompkins, 560 U.S. at 381-82 (citing Davis, 512 U.S. at 458-59).

In its suppression memorandum, the district court found that “Defendant interrupted Agent [Lewis’s Miranda warnings] and stated that he ‘wasn’t going to say anything at all.'” Abdallah, 196 F.Supp.3d at 600 (emphasis added). Numerous courts—including this Court—have held that materially indistinguishable statements amount to an unambiguous invocation of Fifth Amendment rights. For example, in Tice v. Johnson, this Court took the position, in a habeas case, that when a defendant told interrogators, “I have decided not to say any more,” he unambiguously invoked his right to remain silent. Tice, 647 F.3d at 107 (“I have decided not to say any more.”); see also Jones v. Harrington, 829 F.3d 1128, 1140 (9th Cir. 2016) (“I don’t want to talk no more”); United States v. McCarthy, 382 F. App’x 789, 791-92 (10th Cir. 2010) (“I don’t want nothing to say to anyone.”); McGraw v. Holland, 257 F.3d 513, 515, 518 (6th Cir. 2001) (“I don’t wanna talk about it.”); Arnold v. Runnels, 421 F.3d 859, 865 (9th Cir. 2005) (“[T]he Supreme Court [never] has required that a suspect seeking to invoke his right to silence to provide any statement more explicit or more technically-worded than ‘I have nothing to say.'”); United States v. Reid, 211 F.Supp.2d 366, 372 (D. Mass. 2002) (cited favorably in Tice, 647 F.3d at 107) (“I have nothing else to say.”).


Under Brady v. Maryland, Defendants are entitled to the disclosure of evidence that is “both favorable to the accused and material to guilt or punishment.” Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987); see also Brady v. Maryland, 373 U.S. at 87. Evidence is favorable “not only when it tends substantively to negate guilt but also when it tends to impeach the credibility of a key witness for the prosecution.” Love v. Johnson, 57 F.3d 1305, 1313 (4th Cir. 1995). Evidence is material if there is a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995).

In a typical Brady case, a defendant has discovered exculpatory evidence after trial, which the defendant alleges the government unconstitutionally suppressed. King, 628 F.3d at 702. In these cases, the defendant establishes a Brady violation proving the materiality and favorability of the withheld evidence. Id. (citing Kyles, 514 U.S. at 433). But in some cases, like Defendant’s case, the government “may possess potential Brady material that it deems privileged or that is otherwise confidential.” United States v. Trevino, 89 F.3d 187, 189 (4th Cir. 1996). Because the defendant does not have access to the confidential material, the defendant “cannot possibly know, but may only suspect, that particular information exists which meets [Brady’s] requirements.” Love, 57 F.3d at 1313. In such cases, “a defendant need only make ‘some plausible showing’ that exculpatory material exists.” King, 628 F.3d at 703. To make this showing, the defendant must “identify the requested confidential material with some degree of specificity.” Id. Specificity ensures that the government’s Brady obligations do not become “unduly burdensome,” Monroe v. Angelone, 323 F.3d 286, 316 (4th Cir. 2003), and that the defendant does not conscript the court for “a groundless fishing expedition,” King, 628 F.3d at 703.

Once the defendant identifies specific evidence that could plausibly be favorable to his defense, the defendant “does not become entitled to direct access to the information to determine for himself its materiality and favorability.” Love, 57 F.3d at 1313. Rather, the defendant is “entitled, in order to secure the basic right, to have the information he has sufficiently identified submitted to the trial court for in camera inspection and a properly reviewable judicial determination made whether any portions meet the [Brady] requirements for compulsory disclosure.” Id. Because the defendant is entitled to in camera review, the district court cannot solely “rely on the government’s good faith” as a basis to avoid review. King, 628 F.3d at 702.

*Note, Davis was on appeal from CAAF.

United States v. Burfoot, 899 F.3d 329 (4th Cir. 2018).  Duplicitous pleadings.

United States v. Bell, 901 F.3d 455 (4th Cir. 2018).

The “informer’s privilege,” which protects a confidential informant’s identity, “is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information [about crimes]” to law enforcement. Roviaro v. United States , 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). In Roviaro , the Court declined to adopt a bright-line rule for determining when a defendant may pierce the privilege, stating that the issue instead calls for case-by-case “balancing [of] the public interest in protecting the flow of information [to law enforcement] against the individual’s right to prepare his defense.” Id. at 62, 77 S.Ct. 623. Whether disclosure should be ordered therefore depends “on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” Id. And in applying Roviaro , we have held more particularly that “the government is privileged to withhold the identity of [an] informant when [he] was a ‘mere tipster,’ or was used only for obtaining a search warrant, but that failing todisclose the informant’s identity more likely amounts to error when the informant was an active participant in the events leading to the arrest of the accused.” United States v. Gray, 47 F.3d 1359, 1365 (4th Cir. 1995) (emphasis added) (citations omitted).

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