United States v. Michelle Lyn Michaud

268 F.3d 728, 2001 Daily Journal DAR 10346, 2001 Cal. Daily Op. Serv. 8381, 2001 U.S. App. LEXIS 20884

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 25, 2001
• Docket: 99-10440
• Status: Published

Opinions

Opinion by Judge FISHER; Dissent by Judge REINHARDT

FISHER, Circuit Judge:

Appellant Michelle Michaud entered a conditional guilty plea to a charge of violating 18 U.S.C. § 1201(a)(1), kidnapping and transporting a victim across state lines. On appeal she challenges her conviction, contending that her incriminating statements should have been suppressed and her sentence was improperly enhanced. For the reasons detailed below, we affirm.

I.

After a joint investigation by the FBI and the Placer County, California Sheriffs Department into a kidnapping and sexual assault, law enforcement officials isolated Michaud and her boyfriend, James Daveg-gio, as suspects and located them at a motel in Stateline, Nevada. The Placer County police secured warrants for their arrest on December 2, 1997. Aware of the existence of the state warrants, FBI Agent Lynn Ferrin led a group of agents to Michaud’s hotel the following day. Another agent knocked on Michaud’s door, claimed to be the assistant manager of the hotel and told her that her boyfriend was sick and needed her assistance. In reality, Daveggio had already been apprehended. When Michaud opened the door, the agents placed her under arrest, took her to another hotel room and handcuffed her to a chair. Ferrin secured Michaud’s signature on consent forms to search her room and her vehicle. He then advised her of her Miranda rights, and she signed another form indicating she understood and waived those rights.

FBI agents and Placer County detectives then proceeded to interview Michaud. When she indicated she wanted to speak to a lawyer, the interview was terminated and Michaud was booked into the Douglas County, Nevada jail on the state warrant and for possession of controlled substances.

The federal agents’ search of Michaud’s van revealed more evidence. Based on this material, a magistrate judge issued a federal arrest warrant for Michaud on December 5, 1997 on charges of kidnapping and aiding and abetting.

Also on December 5, Michaud and her cellmate, Teresa Agoroastos, learned that Michaud and her boyfriend had been featured on a television news report in connection with a murder. Michaud became distraught, and began telling Agoroastos, “I’m scared. I’m in a lot of trouble.” Agoroastos contacted Deputy Douglas Conrad over the intercom and said that Michaud needed to talk to somebody. Conrad told the women to meet him at the gate in front of their dorm. Agoroastos led Michaud by the arm to the gate. At this point, both women were crying. Ago-roastos told Conrad that Michaud had information about a murder and needed to talk to someone; Michaud remained silent, neither confirming nor denying the statement. Conrad told the women to return to their cellblock and contacted his supervisor, Sergeant Arnie Digerud, who in turn informed detectives of the request. Dige-rud then instructed Conrad to place Mi-chaud in a holding cell.

Approximately one hour later, Douglas County Sergeant Timothy Minister took Michaud to an interview room, where they met with FBI Agent Christopher Cam-pion. After turning on a tape recorder, Campion said:

Michelle, we just started talking and uh, I just want to ask you just to make sure that I’m under, I’m clear that you want to talk to us, to me, and to Detective Minister here, Tim, um, about something that’s obviously bothering you. You’re obviously emotional right now and it’s something that you, you need to get off your chest. Is that true?

Michaud answered, “I have some information about the young lady who was killed, a couple of days ago. Yes.” Minister and Campion then informed Michaud of her Miranda rights, including her right to have an attorney present during questioning. Once she indicated that she understood these rights and signed a waiver, they began to interview her. The interview lasted roughly nine hours. Campion and Placer County Detective Desiree Car-rington interviewed Michaud again on December 6. The following day Michaud was hospitalized after collapsing in her cell. She was interviewed at the hospital for approximately an hour. The officers spoke to her again on December 8.

Also on December 8, Placer County yielded priority of-their prosecution to the federal government. Michaud was taken into federal custody the next day, brought before a federal magistrate in Reno and had counsel appointed for her. She was subsequently indicted on charges of kidnapping and transportation across state lines and conspiracy to commit the same, in violation of 18 U.S.C. § 1201(a)(1) and (c). On October 27, 1998, Michaud moved to suppress the statements she made during her interviews with law enforcement officials. The district court denied this motion November 13, 1998, after which Michaud entered a conditional guilty plea on the kidnapping charge. On August 12, 1999 the court sentenced Michaud to 152 months in prison. This appeal followed.

II.

Michaud argues that the court erred in denying her motion to suppress her incriminating statements because her arrest was unlawful, state and federal officials colluded to deprive her of her right to a timely appearance before a federal magistrate judge and she was interrogated after invoking her right to counsel. We review motions to suppress de novo, but we review the trial court’s factual findings for clear error. United States v. Kemmish, 120 F.3d 937, 939 (9th Cir.1997).

A. Lawfulness of the Arrest

Michaud contends that the ruse the officers used to persuade her to open the door of her hotel room violated her Fourth Amendment rights, and that the inculpato-ry statements she subsequently made to them should be suppressed as the fruits of the unlawful arrest. She acknowledges that a valid warrant for her arrest existed at the time of the ruse, but contends that “the Placer County warrant was itself used as a ruse by the FBI to create an opportunity for interrogation.”

Michaud’s objection to the use of trickery to encourage her to open her hotel room door is unavailing, given the existence of a valid warrant. We have held that “[tjhere is no constitutional mandate forbidding the use of deception in executing a valid arrest warrant.” Leahy v. United States, 272 F.2d 487, 490 (9th Cir.1960); see also United States v. Contreras-Ceballos, 999 F.2d 432, 435 (9th Cir.1993) (holding that an officer was justified in claiming to be a Federal Express agent when executing a warrant). Because the warrant was valid, we cannot accept her argument that the FBI’s use of the warrant was somehow improper. We affirm the district court’s denial of Michaud’s motion to suppress based on the unlawfulness of her arrest.

B. State and Federal Collusion

Michaud argues that the Placer County officers colluded with the FBI agents to deprive her of her Sixth Amendment right to counsel and her rights under Fed.R.Crim.P. 5(a) and 18 U.S.C. § 3501(c). Under Rule 5(a), an arrested individual must be taken without unnecessary delay before a federal magistrate. We look to § 3501(c) to determine whether an otherwise voluntary confession made during a period of unnecessary delay must be excluded.¹ United States v. Van Poyck, 77 F.3d 285, 288 (9th Cir.1996). Under that provision:

In any criminal prosecution by the United States ... a confession made or given by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law-enforcement officer or law-enforcement agency, shall not be inadmissible solely because of delay in bringing such person before a magistrate ... if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following his arrest or other detention: Provided, That the time limitation contained in this subseetion shall not apply in any case in which the delay in bringing such person before such magistrate or other officer beyond such six-hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate or other officer.

18 U.S.C. § 3501(c). 'Thus, the provision creates a six-hour “safe harbor” between the commencement of detention on a federal charge and appearance before a magistrate judge during which a voluntary confession is admissible. Voluntary confessions occurring after the safe harbor period may still be admissible if the court determines that the delay was reasonable or if public policy favors admission. Van Poyck, 77 F.3d at 288-89.

Michaud was taken into federal custody on December 9 and promptly taken before a federal magistrate. She argues, however, that her state custody was the result of collusion between state and federal authorities; as such, the relevant delay should be the period between her initial state arrest and her appearance before the federal magistrate judge, some six days later. The relevant delay may indeed be calculated from the time of arrest by state or local authorities on state charges “if state or local authorities, acting in collusion with federal officers, were to arrest and detain someone in order to allow the federal agents to interrogate [her] in violation of [her] right to a prompt federal presentment.” United States v. Alvarez-Sanchez, 511 U.S. 350, 359, 114 S.Ct. 1599, 128 L.Ed.2d 319 (1994). The defendant has the burden to prove the existence of such actual collaboration; “[a] bare suspicion that there was cooperation between the two agencies designed to deny fundamental rights is not sufficient.” United States v. Doe, 155 F.3d 1070, 1078 (9th Cir.1998) (en banc) (quoting United States v. Leeds, 505 F.2d 161, 163 (10th Cir.1974)).

Placer County police and the FBI had been jointly investigating Michaud and Daveggio. Michaud was arrested under a California state warrant for kidnap and sexual assault and later booked by Nevada authorities on drug charges.² The FBI participated, in her arrest and questioned her after she was in custody. Interviews of persons in state custody by federal authorities are permissible, and statements obtained during such questioning are generally admissible. United States v. Halbert, 436 F.2d 1226, 1229 (9th Cir.1970); see also Alvarez-Sanchez, 511 U.S. at 360, 114 S.Ct. 1599. The agents obtained a federal warrant for Michaud’s arrest on December 5, obtained priority of prosecution from state officials on December 8 and executed the warrant for her arrest December 9. The cooperation between the state police and the FBI, both in conducting interviews and in taking Michaud into federal custody, appears on its face to have been unobjectionable. As soon as the federal agents gathered sufficient evidence against Michaud from the search of her van, they obtained an arrest warrant and took the steps necessary to prosecute her in federal court.

A finding of collusion requires proof of a deliberate intent to deprive a defendant of her federal procedural rights. Doe, 155 F.3d at 1078. The mere suspicion of collusion that Michaud describes is insufficient. See id. Michaud offers no evidence of actual collusion between the state authorities and the FBI to deny her her federal right to appear before a magistrate judge. The district court found that Michaud’s allegations of collusion amounted to “no more than unsupported suspicion,” and determined that the exchange of information between federal and state investigators was sparse. On appeal, Michaud has not shown these factual determinations to be clearly erroneous. See Kemmish, 120 F.3d at 939. We therefore affirm the district court’s holding that Michaud’s rights were not infringed by impermissible collusion between federal and state authorities.

C. Custodial Interrogation

Once an accused has invoked her right to counsel during interrogation, she may not be subjected to further police interrogation “unless the accused [her]self initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). During an interview with police on December 3, Michaud indicated her desire to speak to an attorney, and the interview was immediately terminated. She was not interviewed again until December 5, when Agoroastos, leading her by the arm to the gate outside Michaud’s dorm, told Deputy Conrad that Michaud wanted to speak to someone “about a murder” and Michaud subsequently confirmed to Sergeant Minister from the Douglas County Sheriffs Department and FBI Agent Campion that this was true. We must therefore decide whether, under the facts of this case, Mi-chaud may be said to have initiated communication with the police after having previously invoked her right to counsel.

The relevant facts, in all material respects undisputed, are as follows. Conrad testified that Agoroastos summoned him on the intercom and told him that Michaud “needed to talk to somebody.” When Conrad approached Michaud and Agoroas-tos at the gate, Agoroastos told him that Michaud “needed to talk to somebody about a murder that had happened in Alpine County.” In context, “somebody” was reasonably understood to refer to the police authorities. Michaud stood next to Agoroastos, crying, and said nothing. She testified that at this point she was shaken up, upset and scared. She heard Agoroas-tos tell Conrad she had information about a murder and should talk to somebody; she stayed silent, neither confirming nor denying the statement.

Conrad told the women to return to their cellblock and informed Digerud of the incident. Digerud had Michaud taken into an isolation cell, where she stayed, free from anyone’s influence, for roughly an hour. During that time, Michaud had the opportunity to change her mind about talking to the officers, and was not questioned.

In response to a Douglas County detective’s call informing them about Michaud’s situation, Sergeant Minister and Agent Campion came to speak to her. After hearing that Michaud and Agoroastos had approached Conrad, the officers had the right to inquire whether she was re-initiating communication. Oregon v. Bradshaw, 462 U.S. 1039, 1045-46, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) (no Edwards violation where defendant appeared to initiate further communication by asking an ambiguous question, a police officer reminded him he did not need to talk and defendant said he understood). Campion testified that, prior to learning Michaud wanted to talk, he had no plans to interview her.

Upon arriving at the interview room, Campion introduced himself and told Mi-chaud he understood she wanted to speak to someone about something she needed to get off her chest, and asked if that was true. She responded, “I have some information about the young lady who was killed a couple of days ago. Yes.” Cam-pion then showed Michaud her Miranda rights on a written form and read them to her, explaining that she had a right to consult with a lawyer for advice before questioning, a right to have a lawyer present during questioning and a right to stop answering the detectives’ questions at any time. Only after Michaud indicated that she had something she wanted to say, that she understood her rights and signed a waiver did Minister and Campion begin to interview her.

From the testimony of Conrad and Mi-chaud, we accept that Michaud was upset, frightened and crying when Agoroastos suggested speaking to somebody about the murder. Although Michaud herself may not have initiated the conversation with Conrad, she went to the gate with Ago-roastos, did not resist speaking to authorities and did not contradict what Agoroas-tos said at any time. Michaud testified about her recollection of the event as follows:

Q: Did Theresa tell you to go see the deputy?

A: No.

Q: Did Theresa tell you that she was going to take you up to see the deputy?

A: No.

Why did you go up to see the deputy? &

I didn’t go to see the deputy. <1

Did Theresa grab you by the arm and pull you up to see the deputy? &

A. She had me by the arm. When the door opened, we went out, and she brought me up to the gate, and she told the officer.

That you wanted to talk to the police? <©

A. No, she said — I’m trying to remember how she said it. I believe she said she had some information about a murder.

And you didn’t tell the deputy that you didn’t, did you? &

A. I didn’t say anything to the deputy at all.

You just stood there? ¿O

Yeah, I was upset. i>

You didn’t go back to your cell? e©

No. !>

You just stayed there? <©

With Theresa, yes. 1>

And you didn’t tell the deputy that you didn’t want to go with him, did you? <©

The deputy didn’t ask me. <1

You never told the deputy you didn’t want to go with him, did you? ff

No, I don’t think so. <1

And you never told the deputy that you didn’t want to - speak to the police, did you? &

A. I didn’t say anything. I didn’t know.

Well, you were standing right there, you heard precisely what Theresa said because you’re able to repeat it now, right? &

A. Yes.

Q: And you never told the deputy, “No, I don’t want to talk to the police,” or, “No, I don’t have any information about a homicide,” did you?

A: No, I didn’t.

In sum, it is clear that Campion’s inquiry about Michaud’s desire to “get something off her chest” and his and Minister’s subsequent questioning of her were triggered by Agoroastos’ statements in Michaud’s presence that Michaud had information about a murder she needed to talk about. The question then is: can Michaud’s behavior, under the totality of the circumstances, fairly be construed as an initiation by her of further communication with the police, such that the officers’ reactions thereafter did not amount to “police-initiated custodial interrogation”? As the Supreme Court explained in Edwards:

[W]hen an accused has invoked [her] right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that [she] responded to further police-initiated custodial interrogation even if [she] has been advised of [her] rights.... [A]n accused ..., having expressed [her] desire to deal with the police only through counsel, is not subject to further interrogation by the authorities ... unless the accused [herself] initiates further communication, exchanges, or conversations with the police.

451 U.S. at 484-85, 101 S.Ct. 1880. Taken together, Michaud’s going with Agoroastos to the gate as Agoroastos initiated communication with Deputy Conrad, her apparent agreement with Agoroastos’ assertion that Michaud had “information about a murder” she wanted to talk about and Mi-chaud’s subsequent behavior and response to Campion’s initial inquiry all indicate that she wanted to talk to the authorities.³ We therefore hold that the questioning of Michaud was initiated by her, not by the police.

We accept that Edwards and its progeny establish a clear line preventing police initiation. By the same token, however, these cases recognize that the accused may change her mind and initiate communication. It is a factual question whether that is what occurred. On these facts, we conclude Michaud initiated, and the police merely reacted to her. They did not seek to speak with her until they were approached with the information that Michaud wished to speak about a murder. The Supreme Court has explained that the rule established in Edwards was “designed to prevent police from badgering a defendant into waiving [her] previously asserted Miranda rights.” Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990). At no point did the law enforcement officials unconstitutionally attempt to coerce Michaud into speaking with them. No allegation has been made, nor does any evidence in the record suggest, that Agoroastos was acting on behalf of the police, or complicitly with them, when she spoke to Conrad. Michaud was present when Agoroastos represented that Michaud had “information about a murder” she wanted to convey. If Michaud did not want to subject herself to questioning, she could have easily said so. Conrad, confronted with Agoroastos’ information and Michaud’s apparent tacit approval of her cellmate’s statements, acted appropriately by ceasing his own communication with her and contacting his supervisor. Sergeant Digerud properly informed the investigating officers of the request. Minister and Campion correctly confirmed that Michaud was not being coerced, and that the initiative was hers, by asking her at the start of the taped conversation whether it was true that she wished to speak to them. They began questioning her only after receiving her affirmative response and informing her of her Miranda rights. Given the propriety of the officers’ behavior, we hold that the resumption of interrogation did not violate Michaud’s constitutional rights, and was fully consistent with the requirements of Edwards.

Our holding is not at odds with United States v. Rodriguez, 993 F.2d 1170 (5th Cir.1993). In Rodriguez, Gary Shaw, one of a group of co-defendants, called an FBI agent and informed him that the group wanted to speak to him. Id. at 1173. The agent then took a statement from Rodriguez, one of Shaw’s co-defendants, outside of the presence of his attorney. The court held that Rodriguez had not initiated contact with the authorities, so his subsequent statements were inadmissible. Unlike the circumstances here, there was no indication that Rodriguez assented to Shaw’s contention that the group wished to speak to the authorities. Indeed, Shaw told the FBI agent only that “they” wished to speak to him, not specifying whether Rodriguez was among those expressing this desire. Here, in contrast, Agoroastos purported to speak on behalf of Michaud in Michaud’s presence, and Michaud never indicated that she disagreed with Agoroas-tos’ representations.

In light of Michaud’s acquiescence in Agoroastos’ characterization of her wishes, creating the appearance of Michaud’s desire to provide information to the police, Michaud’s confirmation in response to Campion’s inquiry and the absence of official coercion, we hold that no constitutional violation occurred and thus affirm the district court’s denial of Michaud’s motion to suppress.

III.

Michaud also contends that the district court erred in its application of the Sentencing Guidelines. U.S.S.G. § 2A4.1, the section applicable to kidnapping, abduction and unlawful restraint, establishes a base offense level of 24. One subsection, § 2A4.1(b)(7)(A), states that another offense committed during the kidnapping requires the court to apply “the offense level from the Chapter Two offense guideline applicable to that other offense if such offense guideline includes an adjustment for kidnapping, abduction, or unlawful restraint, or otherwise takes such conduct into account.” This subsection is to apply if the cross-referenced section would result in a higher offense level than the sentence resulting from application of § 2A4.1. U.S.S.G. § 2A3.1 applies to criminal sexual abuse of the type at issue in this case, and contains a specific enhancement for instances of abuse where the victim was abducted. In keeping with § 2A4.1(b)(7)(A) the court cross-referenced § 2A3.1 to determine the correct offense level. The base offense level of 27 under that section, adjusted upward by four levels because the offense was committed by the means set forth in 18 U.S.C. § 2241(a) (aggravated sexual abuse by force or threat) and an additional four levels due to the abduction, resulted in an offense level of 35.⁴

Michaud, however, notes that § 2A4.1 contains a separate provision for kidnapping involving the sexual exploitation of the victim. See U.S.S.G. § 2A4.1(b)(5). If the court applied this subsection, the resulting offense level would be a base level of 24 for the kidnapping, increased by three levels for the sexual exploitation, resulting in an offense level of 27. A contrary interpretation, she argues, would render § 2A4.1(b)(5) superfluous.

Section 2A4.1(b)(7) states unambiguously that the offense level calculation from the other offense committed during a kidnapping is to apply “if the resulting offense level is greater than that determined” using § 2A4.1. Here, the cross-referenced section resulted in a higher offense level — indeed, that is the sine qua non of this portion of the appeal. We therefore hold that the district court did not err in its application of the Sentencing Guidelines.

CONCLUSION

The law enforcement officers’ use of a ruse to arrest Michaud was proper; she failed to prove the existence of collusion between state and federal officials that rendered the delay between her arrest on state charges and her appearance before a federal magistrate violative of her rights under 18 U.S.C. § 3501(c); and the police did not initiate questioning after she had invoked her right to counsel. Accordingly, we affirm the district court’s denial of Michaud’s suppression motion. We also hold that the district court properly applied the Sentencing Guidelines.

AFFIRMED.

1 . The other provisions of § 3501 specify that a confession may be admissible if voluntarily given and delineate factors to be taken into account in determining voluntariness. 18 U.S.C. § 3501(a), (b). We note that, aside from her § 3501(c) argument, Michaud does not challenge the voluntariness of her confession. We therefore do not address the impact of this delay on the voluntariness of her confession, see Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir.1993) ("We review only issues which are argued specifically and distinctly in a party's opening brief. We will not manufacture arguments for an appellant ....”), although we find the state officials’ delay in bringing Michaud before a magistrate extremely troublesome.

2 . Under Nevada law, a person arrested on an out-of-state warrant must be brought before a magistrate for a probable cause determination “without unnecessary delay.” NRS §§ 171.158, 171.178 (1999). Although the state police did not comply with their constitutional duty to bring Michaud before a magistrate within 48 hours of her arrest, see County of Riverside v. McLaughlin, 500 U.S. 44, 57, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) ("A jurisdiction that chooses to offer combined [probable cause determination and arraignment] proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours after arrest.”), this delay cannot be attributed to the federal agents and considered for purposes of § 3501(c) absent evidence of collusion. See United States v. Halbert, 436 F.2d 1226, 1229 (9th Cir.1970).

3 . We believe Michaud's behavior under these circumstances is sufficient to constitute what the dissent characterizes as "a statement that reasonably leads the police to believe that she may desire to talk.” Dissent at 741.

4 . The court applied a three-level reduction for acceptance of responsibility, arriving at a final offense level of 32.