United States v. Samuel Pena Columna

• Court: Court of Appeals for the Third Circuit
• Decided: September 13, 2024
• Docket: 23-1206
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 23-1206 ______________

UNITED STATES OF AMERICA

v.

SAMUEL ELIAS PENA COLUMNA, Appellant ______________

On Appeal from the United States District Court of the Virgin Islands (No. 3-19-cr-00065-001) U.S. Chief District Judge: Honorable Robert A. Molloy ______________

Argued May 16, 2024 ______________

Before: JORDAN, SHWARTZ, and BIBAS, Circuit Judges.

(Filed: September 13, 2024 ) ______________

Joseph A. DiRuzzo, III [ARGUED] Daniel M. Lader Margulis Gelfand DiRuzzo & Lambson 401 E Las Olas Boulevard Suite 1400 Ft. Lauderdale, FL 33301

Michael L. Sheesley Condo Torre Del Mar 1477 Ashford Ave. Apt. 2201 San Juan, PR 00907

Counsel for Appellant Samuel Elias Pena Columna

Adam Sleeper [ARGUED] Delia L. Smith Office of United States Attorney 5500 Veterans Drive United States Courthouse, Suite 260 St. Thomas, VI 00802

Counsel for Appellee United States of America ______________

OPINION * ______________

SHWARTZ, Circuit Judge

Defendant Samuel Pena Columna appeals the District Court’s order denying his

motion to suppress his statements to law enforcement and granting the Government’s

request to admit Rule 404(b) evidence. For the reasons set forth below, we will affirm.

I

A

On September 25, 2019, Defendant drove Juan Nolasco, Rammer Morales, and

two other men in his jeep to a trailhead on St. John. The jeep contained over $1 million,

which Defendant retrieved from St. Thomas earlier that day, and two weapons: a Glock

with an extended magazine and a “long weapon,” App. 836. The plan was to exchange

the “long weapon” and money for 100 kilograms of cocaine. App. 836.

* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

2 United States Customs and Border Protection (“CBP”) Agents were monitoring

the trail, which was known for drug smuggling. After the jeep arrived, Morales and

Nolasco walked down the trail with the weapons to confirm that the drugs arrived.

When two of the Agents attempted to stop them, the men shot one of the Agents. The

Agents shot back, injuring Morales. Nolasco fled on foot and Defendant drove away

with the two other men.

The next day, DEA Special Agents Brett Ashley and Evan Martinez, and FBI Task

Force Officer Richard Dominguez, interviewed sources on St. John, beginning with

Defendant. Defendant had been an FBI and DEA informant since May 2017. To ensure

that they could meet with Defendant alone, the Agents created a ruse, asking him to go to

a specific location, and once they saw him alone in his car, they called and asked him to

pull over. After Defendant pulled over, Dominguez and Ashley entered Defendant’s car

and instructed him to drive to a nearby grocery store parking lot. The Agents had met

with Defendant in the same way in the past to obtain information.

Once they arrived, Martinez sat in the front seat, with Ashley and Dominguez in

the rear. The Agents wore plain clothes and carried concealed firearms. They spoke with

Defendant in his car for approximately forty-five minutes to one hour, with Dominguez

serving as an interpreter because Defendant speaks only Spanish. Defendant remained in

the driver’s seat and was not handcuffed at any point.

The Agents asked if Defendant knew anything about the shooting, and he initially

said that he heard about it from third parties. The Agents, who knew that a jeep was used

in the crime and that Defendant both owned a jeep and was familiar with the trail (having

3 previously provided them information about it), asked Defendant where his jeep was and

whether he lent it to anyone. Defendant became nervous talking about the jeep and stated

that he lent it to the individuals involved in the shooting. The Agents suspected that he

was more involved. Defendant eventually told them that (1) Nolasco approached him the

day of the shooting with a job as a driver, (2) Nolasco and Morales had guns, and (3)

after hearing gunfire, he drove away with the money and the two other men. 1

The Agents then exited Defendant’s vehicle, leaving him alone in the driver’s seat

with his car keys, and called the United States Attorney’s Office to discuss whether they

had enough evidence to arrest him. Approximately ten to fifteen minutes later,

Dominguez and Ashley reentered Defendant’s car and directed him to drive to a different

parking lot but did not place him under arrest. The group then boarded a CBP boat to go

to the FBI’s St. Thomas office. Before boarding, Defendant was searched, but not placed

in restraints or told that he was under arrest.

At the St. Thomas FBI office, Defendant was brought to an interview room where

Ashley and Dominguez began an audio and video recording and advised him of his rights

orally and in writing. 2 In response, Defendant asked whether he was working for the

Agents or under arrest, and Dominguez responded that he was not under arrest.

1 During this discussion, Defendant allowed the Agents to look at Defendant’s phone, which they never returned to him. 2 The video of the interview was offered into evidence at the hearing and the parties used a transcript that had both the Spanish words spoken and their English translation as a guide. On appeal, both parties cite and neither challenge the English translation of the transcript that was admitted at trial. Accordingly, we rely on that version of the transcript. In addition, we have reviewed the video, which conveys the intonation and cadence in which the statements were made.

4 Defendant then said that he had made a mistake and continued, “but . . . no, I think that if

I am under arrest, I have the right to an attorney, right? If I’m under arrest.” App. 206.

Dominguez told him that he was not under arrest but that if he wanted to answer

questions, he could do so with or without an attorney, and asked whether he wanted an

attorney. Defendant then said that he “got in deeper” and “did it wrong,” App. 206-07,

and Dominguez interrupted him, saying that if he wanted to talk to the Agents, he needed

to tell the Agents, “[y]es, I am going to talk to you without an attorney,” and reminded

him that “if you want an attorney, you can have an attorney,” App. 207.

Defendant paused and eventually responded:

No, [U/I],[3] that if I’m under arrest, I need an attorney, I mean, even if afterwards, you know, the family can get me another one to . . . a main one, no? Because I’m already under arrest, and I used to work for you, right?

App. 208. The Agents then left the room for a few minutes and, upon returning,

informed Defendant that he was under arrest for trafficking cocaine and re-read him his

rights. When asked if he understood his rights, Defendant nodded. Dominguez then said

that had the Agents not contacted Defendant, he would not have told them about the

incident, and when Defendant said, “I never knew [the individuals shot] were feds,”

Dominguez said:

But better . . . hold on . . . hold on. If you want . . . if you want to talk to us, if you want to talk to us that’s something else, but I already read you . . . I read you your rights, you have your . . . your rights and if . . . if you understand them, I want to talk to you, but that’s if you want to.”

3 [U/I] means that the word was unintelligible to the transcriber.

5 App. 211. Defendant continued to speak and further incriminated himself. 4

B

A grand jury returned a seven-count indictment against Defendant, Nolasco,

Morales, and others, 5 and Defendant moved to suppress the statements he made in the

vehicle on St. John and at the FBI office in St. Thomas. The District Court denied the

motion. As to the St. John statements, the Court found that Defendant was not in custody

when he spoke with the Agents in his car, though it acknowledged that “[a]t a certain

point the information certainly became incriminating,” and that when they went from

“generally incriminating” to “very incriminating,” Defendant “arguabl[y]” “may not have

been” free to leave. App. 198. As to the St. Thomas statements, the Court reasoned that

although Defendant was in custody, there was “arguabl[y]” not a clear invocation of the

right to counsel, and even if there was, Defendant subsequently waived his rights by

insisting on continuing to talk. App. 199. The case proceeded to trial.

Before trial, Nolasco agreed to cooperate and informed the Government that he

and Defendant had been dealing drugs together long before the September incident.

Before calling Nolasco as a witness, the Government informed the Court that it planned

4 The video revealed that Defendant was calmly speaking with the Agents throughout the interrogation and sought to get them to agree that he participated as their informant. 5 Defendant was charged with conspiracy to possess with intent to distribute cocaine (Count One), attempt to possess with intent to distribute cocaine (Count Two), possession of firearms in furtherance of a drug trafficking crime (Counts Three and Four), possession and discharge of firearms during and in relation to a crime of violence (Count 5), and assaults of Marine Interdiction Agents while they were engaged in their official duties (Counts Six and Seven).

6 to ask him about transactions that preceded September 25, 2019, to provide context about

Defendant’s involvement in the underlying offense. Defense counsel objected based on

the Government’s failure to provide Rule 404(b) notice. The Government countered that

Nolasco’s testimony was intrinsic evidence of the charged conspiracy but offered to limit

the evidence to the September events (which included testimony about a test run on the

trail the week before the September events) subject to the opportunity for rebuttal if

Defendant opened the door to testimony about earlier events. The Court agreed and

admitted the September events as evidence intrinsic to the charged offense.

The jury then heard testimony about, among other things, (1) the events on and

surrounding September 25, 2019; (2) Defendant’s informant agreement, including

instructions he was given not to engage in criminal conduct without approval and

payments he received; and (3) the statements he made on St. John and St. Thomas.

Based on cross-examination of several witnesses, the Government asked the Court for

permission to recall Nolasco to testify about his long-time drug partnership with

Defendant to show that Defendant was a knowing participant in the charged offenses.

In support of its request, the Government filed written notice of the proposed

testimony, which Defendant opposed. The District Court held that the evidence of

Defendant’s history of drug trafficking with Nolasco since September 2017 was

admissible because: (1) Defendant “put at issue the good faith belief [] that he was

working as a [c]onfidential informant at this time, and . . . didn’t have the mens rea to

knowingly enter into this conspiracy,” App. 1212; and (2) Nolasco’s proposed testimony

“is relevant to show [Defendant’s] knowledge . . . and to rebut the good faith belief that

7 he was doing this to gather information for law enforcement,” App. 1212. The Court,

however, precluded testimony about past firearms use, reasoning that it would be

“unfairly prejudicial . . . without a more precise defense[] argument that [Defendant]

didn’t know guns would have been involved in this transaction.” App. 1214.

Nolasco then testified that: (1) before September 2017, he and Defendant engaged

in drug-trafficking with another individual until that individual cut them out; (2) around

September 2017, the pair agreed to start their own drug-trafficking business; and (3)

Defendant’s role in their business included bringing money from St. Thomas to St. John

and driving Nolasco (usually with the other men involved in the September events) to

buy drugs. Both before this testimony was presented and during its final instructions, the

Court instructed the jury about the testimony’s limited purpose.

Defendant was convicted on all counts 6 and sentenced to 368 months’

imprisonment. Defendant appeals the suppression and Rule 404(b) rulings. We address

each in turn.

6 This excludes Counts Two and Four, which the Government moved to dismiss with prejudice after jury selection.

8 II 7

A8

“In reviewing a motion to suppress, we review a district court’s factual findings

for clear error, and we exercise de novo review over its application of the law to those

factual findings.” United States v. Goldstein, 914 F.3d 200, 203 n.15 (3d Cir. 2019)

(internal quotation marks omitted) (quoting United States v. Katzin, 769 F.3d 163, 169

n.4 (3d Cir. 2014)). Applying the clear-error standard when reviewing a motion to

suppress, “we accept the District Court’s findings unless we are ‘left with the definite and

firm conviction that a mistake has been committed.’” United States v. Ludwikowski, 944

F.3d 123, 130 (3d Cir. 2019) (quoting United States v. Howe, 543 F.3d 128, 133 (3d Cir.

2008)).

Under this standard, the District Court did not err in denying Defendant’s motion

to suppress the St. John statements. The Court had a factual basis to conclude that

Defendant was not in custody at that time and thus was not entitled to warnings pursuant

to Miranda v. Arizona, 384 U.S. 436 (1966). To determine whether a defendant is in

custody when being questioned by police we (1) identify the “circumstances surrounding

the interrogation”; and (2) ask whether “a reasonable person [would] have felt that he . . .

was not at liberty to terminate the interrogation and leave.” Ludwikowski, 944 F.3d at

7 The District Court had subject matter jurisdiction pursuant to 48 U.S.C. § 1612(a) and 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291. 8 Because we conclude that the District Court did not clearly err in any of its fact finding, we depart from our dissenting colleague’s gloss on the facts.

9 131 (internal quotation marks and citations omitted)). Several non-exhaustive factors

help with this determination, including:

[(1)] the interview's location, physical surroundings, and duration; [(2)] whether he voluntarily participated; [(3)] whether he was physically restrained; [(4)] whether other coercive tactics were used, such as hostile tones of voice or the display of weapons; [(5)] [] whether the interviewee was released when the questioning was over[;] [(6)] whether the questioner believed the interviewee was guilty; [(7)] whether the interviewee was specifically told he was not under arrest; and [(8)] whether he agreed to meet knowing that he would be questioned about a criminal offense.

Id. at 132 (citations omitted). We then “must ask the additional question [of] whether the

relevant environment presents the same inherently coercive pressures as the type of

station house questioning at issue in Miranda.” Id. (quotation marks and citation

omitted). If so, then the defendant was in custody. Id.

Here, several factors indicate that a reasonable person in Defendant’s position

would not have felt that he could not terminate the encounter and leave. Defendant spoke

with the Agents voluntarily for approximately forty-five to sixty minutes in his car while

parked in a public grocery store lot. When the Agents initiated the meeting, Defendant

was not a suspect, 9 and throughout the discussion, he remained in the driver’s seat,

retained the car keys, was unrestrained, and the Agents did not display their weapons.

Indeed, during Defendant’s prior dealings with the Agents while serving as an informant,

9 Even absent this impression, Miranda would not be triggered because the duty to provide Miranda warnings “arise[s] not because the defendant has become the focus of a potential indictment but because the government has in some meaningful way imposed restraint on his freedom of action.” United States v. Jaskiewicz, 433 F.2d 415, 419 (3d Cir. 1970); see also id. (“Miranda deals with governmental conduct toward persons whom the government has subjected to restraint.”).

10 the Agents were armed and there is nothing in the record about their voice or demeanor

that would have signaled a break from that course of dealing. To the contrary, the

circumstances under which the conversation took place were like the many others he

voluntarily had with law enforcement when they spoke to him for information gathering

purposes. 10

For this reason, among others, this case is unlike United States v. Jacobs, 431 F.3d

99 (3d Cir. 2005), where we concluded that an informant was in custody when she made

incriminating statements and affirmed the district court’s order granting the motion to

suppress. Specifically, the defendant in Jacobs had been an informant for more than ten

years. Id. at 102. When the defendant contacted law enforcement to report on “the

biggest” dealer in the area, her handler began to suspect her involvement, given the level

of detail she provided. Id. at 103. On the day the other participants were arrested, the

FBI (1) “closed” her as an informant without telling her, id. at 103-04; (2) summoned her

to the FBI and believed that she was guilty; (3) questioned her without telling her that she

was under arrest and did so in an intimidating and confrontational way, including placing

evidence of the scheme in her view; and (4) told her that they thought she was guilty. Id.

at 107-08. Moreover, she felt obligated to appear because she incorrectly believed she

was still an informant. Id. at 107. Here, in contrast, (1) the questioning took place in

Moreover, after Defendant made his incriminating statements, the Agents left 10

him alone in the driver’s seat of his own car with his keys for ten to fifteen minutes. Although Defendant may have raised suspicion had he sped off, being left alone in one’s own car with the keys is not the sort of treatment that someone in custody would receive. Cf. Ludwikowski, 944 F.3d at 132.

11 Defendant’s car; (2) Defendant was contacted for information-gathering purposes

because he was an active informant familiar with the area and not a suspect when the

questioning began; (3) there is no evidence that the questioning was confrontational or

intimidating or that specific interrogation tactics were used; and (4) while it is possible

that Defendant felt obligated to meet and speak with the Agents, the record reflects that

the meeting was voluntary. Thus, Jacobs differs from this case in material ways and so it

does not govern.

For all of these reasons, we are not “left with the definite and firm conviction,”

Ludwikowski, 944 F.3d at 130 (internal quotation marks and citation omitted), that the

District Court committed a mistake in concluding that Defendant was not in custody

when he made the St. John statements and denied his motion to suppress them.

The District Court also properly denied Defendant’s motion to suppress the St.

Thomas statements because he did not unambiguously invoke his right to counsel. To

invoke the right to counsel, a suspect must do so “unambiguously.” Davis v. United

States, 512 U.S. 452, 459 (1994). If “an accused makes a statement concerning the right

to counsel ‘that is ambiguous or equivocal[,]’ . . . the police are not required to end the

interrogation or ask questions to clarify whether the accused wants to invoke his or her

Miranda rights.” Berghuis v. Thompkins, 560 U.S. 370, 381 (2010) (quoting Davis, 512

12 U.S. at 461-62). 11 However, once a defendant unambiguously invokes his right to

counsel, questioning must stop “until counsel has been made available to him, unless the

accused himself initiates further communication, exchanges, or conversations with the

police.” Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).

Here, neither of the two statements that Defendant identifies unambiguously

invoked his right to counsel. First, his statement, “I think that if I am under arrest I have

the right to an attorney, right?[,]” App. 206, followed a statement from Dominguez that

Defendant was not under arrest. Thus, Defendant’s comment appears to be an effort to

clarify his right to counsel rather than an assertion of that right.

The same is true of his second statement:

No, [U/I] that if I’m under arrest, I need an attorney, I mean, even if afterwards, you know, the family can get me another one to . . . a main one, no? Because I’m already under arrest, and I used to work for you, right?

App. 208. Defendant made this statement after Dominguez told him that he was not

under arrest and that if he wanted to answer questions he could do so with or without an

attorney. Thus, in this second statement, Defendant sought to clarify his rights,

expressing no more than his belief that if he was under arrest, he would need an

11 See also Davis, 512 U.S. at 459-60 (explaining that if a suspect makes a reference that, “a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning” because “a statement either is such an assertion of the right to counsel or it is not,” and such an extension of Edwards v. Arizona, 451 U.S. 477 (1981) would result in “irrational obstacles to legitimate investigative activity.” (internal quotation marks and citations omitted)).

13 attorney. 12 Thereafter, the Agents left the room for a few minutes and when they

returned, informed Defendant that he was under arrest, gave reasons why, and re-read his

rights, thereby eliminating any possible confusion on Defendant’s part about whether he

was under arrest or had a right to counsel. 13

Because the two challenged statements, at best, indicate that Defendant “might be

invoking the right to counsel,” as opposed to clarifying his rights, the Agents were not

required to cease questioning. Davis, 512 U.S. at 459 (citation omitted). Accordingly,

the District Court did not clearly err in finding that Defendant did not unambiguously

12 In the dissent’s view, this statement amounts to an invocation of the right to counsel because it “can reasonably be construed to be an expression of a desire for the assistance of an attorney.” Dissent at 23-24 (quoting Davis, 512 U.S. at 459). However, under Davis, if a reasonable officer, given the circumstances, would only understand that the suspect “might be invoking the right to counsel,” Davis, 512 U.S. at 459, the questioning need not cease. Thus, we can ignore neither Dominguez’s exchange with Columna, which provides context for Columna’s questions about his rights, nor that throughout the interview, Defendant continued to offer information to the Agents despite their lack of probing and frequent reminders about his rights. See, e.g., App. 206-07 (Dominguez interrupting Defendant after he said he “got in deeper,” and “did it wrong,” to say that if he wanted to talk, he needed to tell Agents, “[y]es, I am going to talk to you without an attorney,” and remind him that “if you want an attorney, you can have an attorney”); App. 211 (Dominguez interrupting Defendant after he was placed under arrest and indicated that he understood his rights, stating “[h]old on. . . hold on. If you want . . . if you want to talk to us, if you want to talk to us that’s something else, but I already read you . . . I read you your rights, you have your . . . your rights and if . . . if you understand them, I want to talk to you, but that’s if you want to.”). See Davis, 512 U.S. at 461-62 (recommending but not requiring clarification if it is unclear whether an individual invoked his right to counsel). The District Court therefore had good reason to view Defendant’s continued statements as manifesting a waiver of his rights. 13 Because, in our view, Defendant did not unambiguously invoke his right to counsel, it is not error to consider these actions.

14 invoke his right to counsel, 14 and thus it properly denied the motion to suppress the St.

Thomas statements. 15

B 16

The District Court also acted within its discretion to admit Defendant’s history of

drug dealing with Nolasco under Rule 404(b). Rule 404(b) prohibits admission of certain

other-acts evidence, such as evidence offered to show a person’s propensity to engage in

certain conduct. See Fed. R. Evid. 404(b)(1). 17 “Other act” evidence, however, is

admissible when offered for a proper purpose, “such as proving . . . intent . . . [or]

knowledge.” Fed. R. Evid. 404(b)(2).

Because Rule 404(b) is a rule of general exclusion, the proponent of the other-acts

evidence must demonstrate that it (1) is “proffered for a non-propensity purpose”; (2) is

“relevant to the identified non-propensity purpose”; (3) has probative value that is not

14 Cf. United States v. Wysinger, 683 F.3d 784, 794-95 (7th Cir. 2012) (concluding that the statement “[d]o I need a lawyer before we start talking?” is not an unambiguous invocation); Diaz v. Senkowski, 76 F.3d 61, 63-64 (2d Cir. 1996) (“I think I want a lawyer” and “Do you think I need a lawyer?” are not clear invocations of the right to counsel); Mueller v. Angelone, 181 F.3d 557, 573-74 (4th Cir. 1999) (same). 15 Any argument based on Missouri v. Seibert, 542 U.S. 600 (2004) (prohibiting agents from deliberately soliciting un-Mirandized statements and then seeking to re-elicit the same statements after providing Miranda warnings), is waived. 16 Evidentiary rulings are reviewed for an abuse of discretion. United States v. Caldwell, 760 F.3d 267, 274 (3d Cir. 2014). 17 Rule 404(b) does not apply to intrinsic evidence, i.e., evidence that (1) “directly proves the charged offense,” or (2) demonstrates “uncharged acts performed contemporaneously with the charged crime [that] . . . facilitate the commission of the charged crime.” See United States v. Green, 617 F.3d 233, 248-49 (3d Cir. 2010) (internal quotation marks and citation omitted). At oral argument, Defendant stated that he was not objecting to evidence about his September 2019 interactions with Nolasco. Oral Argument at 15:20-52, United States v. Columna, No. 23-1206 (3d Cir. May 16, 2024).

15 “substantially outweighed by its potential” to cause unfair prejudice under Rule 403; and

(4) is “accompanied by a limiting instruction,” if requested. United States v. Repak, 852

F.3d 230, 241 (3d Cir. 2017) (citations omitted). Likewise, the proponent must provide

written pre-trial notice of the evidence. The notice requirement can be excused upon a

showing of good cause. Fed. R. Evid. 404(b) advisory committee’s note to 2020

amendment.

Here, Nolasco’s testimony about his history of drug-dealing with Defendant was

proffered for, and relevant to, a non-propensity purpose: to rebut Defendant’s attempt to

establish that he (1) was surprised by Nolasco’s request to serve as the driver on

September 25, 2019 and (2) reasonably believed that he was authorized by the

Government to do so and lacked the mens rea to enter the September conspiracy. The

District Court properly identified this purpose and articulated the chain of inferences

linking the evidence to this purpose. The Court also engaged in Rule 403 balancing by

(1) noting that Defendant “questioned law enforcement witnesses on [Defendant’s] the

course of conduct . . . with the DEA and FBI,” and that there is testimony that Defendant

was “warned at least on two occasions[] that engaging in any criminal activity could lead

to prosecution,” App. 1213; and (2) excluding the Government’s proposed testimony

concerning firearms, reasoning that such evidence “would be unfairly prejudicial to the

defense based on the nature of these charges” in the absence of an “argument that

16 [Defendant] didn’t know guns would have been involved in this transaction,” App. 1213-

14. 18

Likewise, the District Court did not abuse its discretion in finding good cause to

excuse the timing of the mid-trial notice because Defendant opened the door to the other-

acts evidence when he elicited responses from the Government’s witnesses that could

allow “the jury [to] infer that his activities were pursuant to agreements with DEA or the

FBI” dating back to May 2017, App. 1191; cf. Fed. R. Evid. 404(b) advisory committee’s

note to 2020 amendments (explaining that “[a] good cause exception for the timing . . . is

necessary because” a “permissible purpose for the evidence may not become clear until

just before, or even during, trial”). Furthermore, Defendant had adequate opportunity to

assess the evidence and why it was being offered during the numerous side bars that

occurred before the Court admitted it.

For these reasons, the Rule 404(b) evidence was admissible.

III

For the foregoing reasons, we will affirm.

The Court also provided limiting instructions, which minimized any unfair 18

prejudice, and which the jury is presumed to follow, Richardson v. Marsh, 481 U.S. 200, 211 (1987), both before Nolasco was recalled to the stand and as part of its final jury instructions.

17 United States v. Pena Columna, No. 23-1206 ______________

JORDAN, Circuit Judge, concurring in part, dissenting in part.

I agree with my colleagues’ well-reasoned rejection of Pena Columna’s argument

that Federal Rule of Evidence 404(b) should have prevented admission of certain

evidence in his case. I strongly disagree, however, with their conclusion that Columna’s

Fifth Amendment rights and associated protections under Miranda v. Arizona, 384 U.S.

436 (1966), were not violated. Hence this lengthy separate opinion in a non-precedential

case. Columna’s rights were violated in ways that were far from harmless, as I will

endeavor to explain.

I. FACTUAL BACKGROUND

On the evening of September 25, 2019, Columna, who had been a DEA

confidential informant and thought he still was, drove a jeep to the top of a trailhead on

the east side of the island of St. John in the U.S. Virgin Islands. In the car were four

other men, along with guns and duffle bags filled with over $1 million in cash. When

two of the men – Rammer Morales and Juan Nolasco – went down the trail to execute a

drug transaction, gunfire erupted and two people were shot, one of whom was a federal

agent.

The next day, two DEA agents, Evan Martinez and Brett Ashley, went to St. John

with Virgin Islands police officer Richard Dominguez, who was working as an FBI Task

Force Officer, (collectively, the “law enforcement agents” or “agents”) to ask Columna

whether he had any information about the shooting. Columna had been a confidential

1 informant for the FBI and DEA since 2017 and had previously been paid by Dominguez

for information. In fact, Columna’s status as a confidential informant was formalized in a

series of written agreements, and he had been paid by the government for information

just days before the shooting. When Columna met with the agents, they did not tell him

that his information-sharing agreement with the government was no longer in effect, nor

was he officially “deactivat[ed]” as an informant until after his arrest. In order to get

Columna alone, without letting him know they were then on St. John, the agents came up

with a ruse. They called him and told him they needed him to go to a bar as their

informant and look for a certain individual.

Once the agents spotted Columna driving to the bar, they called him again, this

time ordering him to pull over so they could speak with him. He complied, and Ashley

and Dominguez then got into his car and directed him to drive to a parking lot “where

there [was] some privacy.” 1 Martinez followed in the agents’ car. Once Columna was

parked, Martinez joined the others in Columna’s car. The agents wore plain clothes but

all three were carrying concealed firearms, which Columna was likely aware of because,

as one of their informants, he had met them before. Ashley also carried handcuffs on his

belt. The agents told Columna to give them his cell phone and his passcode, which he

did. They thus gained access to his phone and text messages, and they never returned the

phone to him.

1 Dominguez testified that “we told [Columna] to drive up behind [the] [m]arket. There is an upper parking lot up there where there is some privacy, so we told him to drive up into that parking lot so we [could] talk.” (J.A. at 925.) 2 While in the car, the agents questioned Columna for approximately an hour. He

does not speak English, so Dominguez, a Spanish speaker, served as translator. Columna

was never told that he was free to leave, nor did he ask. He was not formally placed

under arrest while in the car, and the agents later testified that he was not a suspect at the

time the questioning began. They did not give him Miranda warnings.

At the outset of the questioning, Columna acknowledged that he had heard about

the shooting, but only from third parties. The agents knew that a Jeep was used as a

getaway car, that Columna owned a Jeep, and that he was familiar with the area involved

in the drug deal. When the agents asked him where his Jeep was the night of the

attempted drug transaction, Columna became nervous. Fifteen minutes into the

conversation, he said that he had lent his Jeep to the people involved in the crime, but, as

he became visibly more nervous, the agents suspected he had some involvement himself.

They continued to question him, without reading him his rights, until he admitted his

participation in the attempted drug deal.

After hearing the confession, the agents left his car and called the U.S. Attorney’s

office because, as one of the agents put it, they wanted to confer with a prosecutor “in

order to make an arrest.” (J.A. at 85.) When they were told they did have probable cause

to arrest Columna, they determined they would eventually take that step. But they kept

that bit of crucial information from him. Instead, Dominguez had Columna drive to

another parking lot, where Dominguez parked the vehicle and kept the keys. The agents

removed Columna from the car, searched him, and put him on a Customs and Border

Patrol (“CBP”) boat to the island of St. Thomas. Once on St. Thomas, they put Columna

3 in a government vehicle, and he was taken to the FBI’s offices and put in an interview

room.

Ashley and Dominguez eventually joined him in the room. They turned on video

and audio recording equipment, 2 and Dominguez read Columna his rights in Spanish and

presented him a form to sign to waive his rights. Columna declined to sign it. Instead,

when Dominguez said, “Now that you understand your rights, do you still want to talk to

us?”, Columna responded by asking, “So, I’m under arrest?” (J.A. at 205.) Given all that

had transpired, Dominguez’s response is remarkable. “No,” he said, “not yet.” (J.A. at

205.) Columna again asked, “[A]m I still working for you guys or am I under arrest?”

(J.A. at 205.) Despite having seized Columna’s phone and car keys, having ushered him

onto a government boat and then into a government car and then into an interview room

in a government office, and having finally read him his Miranda rights, Dominguez kept

up the pretense that there had been no arrest, telling Columna, “Presently you are not

under … arrest.” (J.A. at 206.) Columna then said, “I made a mistake … but … no, I

think that if I am under arrest, I have the right to an attorney, right? If I’m under arrest.”

(J.A. at 206 (emphasis added).)

Instead of stopping him there, the agents let the conversation roll. Columna

repeated that he thought he was working for the agents. He started to describe getting in

deeper with drug trafficking, but Dominguez cut in, saying: “[I]f you want to talk to us,

The recording was admitted into evidence at the suppression hearing and trial. 2

The transcript and Spanish-to-English translation were also entered into evidence. All quotes come from the translated transcript. 4 we need you to say, ‘Yes, I am going to talk to you without an attorney.’ If you want an

attorney, you can have an attorney.” (J.A. at 207.) Then, in a comment that shows the

agents understood exactly what they were trying to do – namely, to rinse the taint of

unconstitutional acquisition from the incriminating information they’d already elicited

from Columna – Dominguez said, “The conversation we’re going to have is the same as

the one we already had.” (J.A. at 207.) Dominguez took a moment to translate the

conversation for Ashley while Columna sat in silence. After a long pause, Columna said,

“No, [unintelligible] that if I’m under arrest, I need an attorney, I mean even if

afterwards, you know, the family can get me another one to … a main one, no? Because

I’m already under arrest, and I used to work for you, right?” (J.A. at 208 (emphasis

added).)

At that point, Dominguez left the room, with Ashley following shortly thereafter.

Eight minutes passed before they reentered the room. Columna was silent while the

agents were out. Upon reentry, Dominguez told Columna, “So this is where we are …

now you’re under arrest, OK?”, and Dominguez reread him his rights. (J.A. at 209-10.)

Columna nodded that he understood, and Dominguez continued talking, telling Columna

that the crime happened because of choices Columna had made, choices unrelated to his

role as an informant. Dominguez then asked a series of questions, such as “what was

your job? To deal drugs?” (J.A. at 212.) Columna proceeded to speak to the agents

about his belief that he was acting as an informant and, in the course of his response,

corroborated his involvement in the events of September 25. The interview thus ended

with a recorded confession, verifying the confession made on St. John. Columna was

5 indicted for seven crimes related to the events the day before. He pled not guilty to all

counts, and filed a motion to suppress the statements he made to the law enforcement

agents.

At the suppression hearing that was held later, Dominguez insisted that, when on

St. John, Columna “was not under arrest[,]” which was why they did not advise him of

his Miranda rights. 3 (J.A. at 128.) He also acknowledged that Columna was told he was

not under arrest when given his Miranda rights the first time on St. Thomas. Dominguez

admitted that he continued to ask Columna questions after Columna asked for a lawyer.

Later in the hearing, Columna’s defense counsel obtained a bit of candor from

Dominguez. Referring to when Columna had said, “I think if I’m under arrest I need a

lawyer[,]” counsel asked, “there is no question at that point that he is asking for a lawyer,

correct?” (J.A. at 161.) Dominguez replied simply, “That’s correct.” (J.A. at 161.) And

yet, when asked if the agents “permit[ted] [Columna] to contact a lawyer[,]” Dominguez

said, “Yes, he was permitted to. He didn’t ask to contact a lawyer. … I didn’t have one

in my pocket. But we would have gotten a lawyer if he needed one.” (J.A. at 162.)

Columna’s counsel then asked what occurred when the agents left the room for eight

minutes and, once more admitting there had been an invocation of counsel, Dominguez

responded that Columna “had asked for a lawyer and we were done talking to him. The

next step for us was we were going to place him under arrest” to “work the case from

3 Ashley also testified for the government, but, because Columna only speaks Spanish and Dominguez translated on both St. Thomas and St. John, Ashley’s testimony was truncated by the Court because Ashley did not understand the conversation, only Dominguez’s translations. 6 another angle.” (J.A. at 164, 166 (emphasis added).) Perhaps thinking better of those

admissions, Dominguez later contradicted himself again and said Columna “never asked

for a lawyer.” (J.A. at 174.)

Following Dominguez’s testimony, the government conceded that, once Columna

had been put on the CBP boat and taken to St. Thomas, he was in custody. As a result,

the District Court stated that “[Columna wa]s under arrest when he [wa]s in St. Thomas.”

(J.A. at 184.)

Nevertheless, the District Court denied Columna’s motion to suppress the

September 26 statements, holding that he was not under custodial interrogation when on

St. John. The Court said it was “arguable” that Columna was not free to leave “when he

first uttered the very incriminating statement[s]” about his involvement, 4 and it was

“objectively reasonable to conclude that he wasn’t free to leave after the agents … had

consulted” the U.S. Attorney. (J.A. at 198-99 (“[S]aying you’re not under arrest [does

not] mean[] that you’re free to leave. It’s an objective decision.”).) And yet the Court

decided against suppressing the St. John confession.

It then turned to the St. Thomas part of the controversy and held that Columna had

not invoked his right to counsel, because it was “arguable that [the invocation of counsel]

was not [clear] [t]here[,]” and, even if it had been clear, he waived it by continuing to

4 More specifically, the Court noted that Columna’s statement, “‘I took these individuals after the shots and I took them to Cruz Bay,’ or wherever he took them, [was] more incriminating than anything that was uttered before.” (J.A. at 193 (paraphrasing Columna’s confession).) 7 speak to the officers. (J.A. at 199-200.) So, with the government having the two

confessions in its pocket, the case proceeded to trial.

During opening statements, the government told the jury of Columna’s

confessions on St. John and St. Thomas. Dominguez and Ashley specifically testified

about Columna’s admissions that he was involved in the September 25 attempted drug

transaction. And again during closing arguments, the government highlighted Columna’s

confession on St. John and his corroboration of that confession once he was on St.

Thomas.

The jury found Columna guilty of several crimes, 5 and the Court sentenced him to

368 months’ imprisonment, with a term of supervised release and a fine. That brings us

to this appeal.

II. DISCUSSION 6

A. Columna’s St. John Statements

In Miranda, the Supreme Court declared that the Fifth Amendment’s prohibition

against self-incrimination requires that, before custodial interrogation can proceed, an

accused must be informed that he has the right to remain silent and the right to an

attorney. 384 U.S. at 479. Should a defendant invoke either right, any interrogation has

to stop. Id. at 474. The rule is firm, and, unfortunately, it was violated in this case. To

5 Columna was charged with seven counts, two of which were dropped. 6 We review the court’s denial of a motion to suppress for clear error as to facts and give de novo review to the application of law to facts. United States v. Davis, 726 F.3d 434, 439 (3d Cir. 2013). “[H]armless-error analysis [i]s applicable to the admission of involuntary confessions[.]” Arizona v. Fulminante, 499 U.S. 279, 312 (1991). 8 begin with, although my colleagues correctly state the law we are to apply to determine

whether a defendant is in custody, they misapply it to conclude that, while on St. John,

“[Columna] was not in custody … and thus was not entitled to warnings pursuant to

Miranda v. Arizona[.]” (Maj. Op. at 9.)

1. Custody

To determine whether an individual was in custody and therefore entitled to

Miranda warnings before interrogation, the Supreme Court has prescribed “‘[t]wo

discrete inquiries … first, what were the circumstances surrounding the interrogation; and

second, given those circumstances, would a reasonable person have felt that he or she

was not at liberty to terminate the interrogation and leave.’” Yarborough v. Alvarado,

541 U.S. 652, 663 (2004) (quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995)).

“[T]he court must apply an objective test to resolve the ultimate inquiry: was there a …

restraint on freedom of movement of the degree associated with a formal arrest.” Id. The

question of custody is tightly connected to the question of interrogation, since whether

one feels free to walk away from a police officer is very often influenced by whether one

is being questioned by the officer. “[T]he term ‘interrogation’ under Miranda refers not

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

(other than those normally attendant to arrest and custody) that the police should know

are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island

v. Innis, 446 U.S. 291, 301 (1980).

My colleagues in the majority write that “a reasonable person in Defendant’s

position would not have felt that he could not terminate the encounter [on St. John] and

9 leave.” (Maj. Op. at 10.) I have a very different view of what a reasonable person in

Columna’s position would have felt. As I understand this record, nothing “indicates that

the[ agents] would [] have heeded a request to depart or to allow the suspect to do so.”

United States v. Willaman, 437 F.3d 354, 359 (3d Cir. 2006). The “[n]umerous factors”

laid out in our decision in United States v. Ludwikowski, 944 F.3d 123, 132 (3d Cir.

2019), support my view. Those nondispositive and nonexhaustive factors include:

the interview’s location, physical surroundings, and duration; whether [the defendant] voluntarily participated; whether he was physically restrained; whether other coercive tactics were used, such as hostile tones of voice or the display of weapons; and whether the interviewee was released when the questioning was over. We also consider whether the questioner believed the interviewee was guilty; whether the interviewee was specifically told he was not under arrest; [] whether he agreed to meet knowing that he would be questioned about a criminal offense. … [and] whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.

Id.

Those factors do not justify the outcome endorsed by the majority here, especially

in light of another of our precedents, United States v. Jacobs, 431 F.3d 99 (3d Cir. 2005),

the case from which we drew the Ludwikowski factors, 944 F.3d at 132. In Jacobs, we

considered nine of the factors later stated in Ludwikowski. The question we faced was

whether a former FBI informant was in custody when questioned by her case handler

about her part in a series of drug offenses. Jacobs, 431 F.3d at 102. We concluded she

was in custody because (1) the questioning took place at the FBI office; (2) her handler

believed she was guilty; (3) she was summoned without explanation; (4) the questions

were “confrontational and intimidating”; (5) interrogation tactics were used (such as

10 keeping her away from her son); (6) her handler told her that he thought she was guilty;

(7) she was reasonably under the impression that she was still an informant; (8) she was

not specifically told she was not under arrest before questioning; and (9) she did not

agree to meet “with knowledge of the fact that questioning about a criminal offense

would take place.” Id. at 107. After considering each of those factors, we determined

that she was in custody, despite the fact that she “left the interview without hindrance.”

Id. at 106. We emphasized that her handler did not inform her of the reason they needed

to meet and that she was “led to believe she was still an informant and thus likely felt an

obligation to follow the directions of her handler, particularly because [he] had paid her

before[.]” Id.

The pertinent facts in Jacobs closely track the facts here and compel me to say that

Columna was in custody when he was questioned in his car on St. John. Perhaps the

most important factor here, which was also of high importance in Jacobs, is evidence that

the defendant “likely felt an obligation to follow the directions of [his] handler[s.]” Id.

Columna was under the impression that he was still an informant and was being

questioned by agents of a government that had paid him for information just days before.

Indeed, the law enforcement agents reinforced that impression, as the entire interaction

began with their directing him to go in his capacity as an informant and look for someone

at a bar. 7 Therefore, “while [Columna] was not physically forced to [park his car in the

7 My colleagues in the majority state that Columna had met with the agents “in the same way in the past to obtain information.” (Maj. Op. at 3.) That is not so. Ashley testified that they “had met [Columna] kind of in a similar location, in a parking lot at times,” “[i]n vehicles[,]” and in “a similar circumstance[.]” (J.A. at 113-14.) There is no 11 parking lot], h[is] decision to go cannot fairly be said to have been ‘voluntary,’” despite

the majority’s best efforts to say otherwise. Id.

The need for Miranda warnings is even greater when, as here, there is a previous

relationship of trust. We have held that an “acquaintanceship” between an officer and

suspect “increased rather than decreased the importance of Miranda warnings. … No

suspect needs Miranda warnings more than one questioned by a law enforcement officer

that the suspect assumes is a quasi-confidante.” United States v. Brownlee, 454 F.3d 131,

147 (3d Cir. 2006). Columna had an informant relationship with the DEA and with

Dominguez for two years. He felt comfortable speaking with them, and the agents

testified to their belief that Columna was still under the impression he was an informant

at the time they were questioning him.

Also, as in Jacobs, the agents here believed that the defendant was involved in the

crimes they were investigating. Due to his knowledge of the trail and because a Jeep that

looked like his was at the scene, the agents very quickly suspected Columna knew a lot

more about the attempted drug deal and related shooting than he initially admitted.

Again, consistent with Jacobs, Columna was “summoned … without explanation[.]”

Jacobs, 431 F.3d at 105. While he believed he was going to a bar to gather information

the agents wanted, he was instead being deliberately isolated for questioning. It is a

painful stretch to say that Columna voluntarily agreed to meet with the agents to discuss

evidence in the record, however, that Columna had been previously deceived by the agents in order to isolate him and effectuate a meeting. Nor is there evidence that Columna had met with all three armed officers, together, in a car before. 12 his criminal activity. The agents fooled him into an interview and at no point indicated

that he was free to leave.

Once they had him alone in a secluded parking lot, they began their questioning.

And make no mistake: interrogation tactics were used. Columna was forced to sit in the

vehicle for an hour with three armed agents. When “law enforcement personnel far

outnumber the suspect, [he] may reasonably believe that, should he attempt to leave, he

will be stopped[.] … In short, the presence of a large number of visibly armed law

enforcement officers goes a long way towards making the suspect’s home [or vehicle] a

police-dominated atmosphere.” United States v. Craighead, 539 F.3d 1073, 1084-85 (9th

Cir. 2008). The seizure of the cell phone and its passcode also was significant because it

communicated to Columna that he might as well talk since they now held key evidence

about him. Cf. id. at 106 n.8 (acknowledging that “displaying evidence to a suspect is an

interrogation technique” used “in the hopes that [the suspect] w[ill] … tell [officers]

everything that [he or she] knew” (internal quotation marks omitted)). And, of course, it

is hard to imagine that Columna felt that he could have asked for his phone back and for

the agents to leave his car without jeopardizing his status as an informant and being

arrested. In the circumstances in which Columna was placed by the agents, a reasonable

person would not have felt free to terminate the interaction and leave.

I acknowledge that Columna was not questioned at a station house, that there is no

evidence of a hostile tone of voice in the agents’ questioning, and that the agents may not

have suspected him, initially. But none of that makes Jacobs inapposite, despite the

majority’s attempt to wave it away. Even if Jacobs could be partially distinguished on

13 some facts, the rest sustain the analogy, as do several other Ludwikowski factors. 944

F.3d at 132.

For example, while Columna was in his own car, the agents directed him to park

in a specific area in a secluded parking lot and questioned him in close quarter for almost

an hour. The majority repeatedly lists Columna being in his own car as a factor

demonstrating that he was not in custody. But “one can be ‘in custody’ so as to require

Miranda warnings even in one’s own home.” United States v. Scott, 590 F.2d 531, 533

(3d Cir. 1979). “More important than the familiarity of the surroundings where

[Columna] was being held is the degree to which the police dominated the scene.”

Sprosty v. Buchler, 79 F.3d 635, 641 (7th Cir. 1996); see also United States v. Griffin,

922 F.2d 1343, 1354-55 (8th Cir. 1990) (“Questioning which occurs in the suspect’s own

home may provide a margin of comfort, but … the setting of the interrogation is not so

important to the inquiry as the question of police domination of that setting.”). Columna

was surrounded, in a small, enclosed space, by three armed law enforcement officers and,

while under suspicion, closely questioned at length. That certainly looks like custodial

interrogation.

The majority opinion tries to avoid that conclusion by saying that “the Agents left

[Columna] alone in the driver’s seat of his own car with his keys for ten to fifteen

minutes.” (Maj. Op. at 11 n.10.) While admitting that Columna “may have raised

suspicion had he sped off,” my colleagues assert that the agents’ huddling to the side of

his car is somehow different than “the sort of treatment that someone in custody would

receive.” (Maj. Op. at 11 n.10.) I can’t agree with that rosy interpretation. It ignores that

14 a reasonable person will rightly feel he is not permitted to leave when he knows that the

law enforcement officers who have secluded him want him to stay put. See United States

v. Jones, 846 F.2d 358, 361 (6th Cir. 1988) (holding that defendant was in custody after

driving himself, while being escorted by two police cars, home and told to stay in his car

alone while they searched his apartment). As the Supreme Court has observed,

“[c]ertainly few motorists would feel free either to disobey a directive … or to leave the

scene … without being told they might do so.” Berkemer v. McCarty, 468 U.S. 420, 436

(1984).

The tether holding Columna in place here was further strengthened by the seizure

of his phone. “Modern cell phones are not just another technological convenience.

… According to one [2013] poll, nearly three-quarters of smart phone users report being

within five feet of their phones most of the time[.]” Riley v. California, 573 U.S. 373,

395, 403 (2014). How many people would feel free to drive away from an encounter

with law enforcement, leaving their phone with the government agents who took it along

with its pass code? Very, very few. Contrary to the majority’s assertions, a reasonable

person in Columna’s position would not have felt free to leave. (Contra Maj. Op. at 10);

cf. Ludwikowski, 944 F.3d at 133 (finding no custody when “unlike a suspect, [the

defendant] had his phone, which he perused and used to make a call”).

The majority also states that Columna “was unrestrained[.]” (Maj. Op. at 10.) I

disagree and think that, from the moment the agents entered his car, Columna was very

effectively restrained. Black’s Law Dictionary defines “restraint” as “[c]onfinement,

abridgement, or limitation[.]” Restraint (def. 1), Black’s Law Dictionary (11th ed. 2019).

15 Columna was confined to his vehicle and limited by the agents directing his movements

and location. That restraint does not change just because, at first, he was the one

operating the vehicle.

Restraint became custody at least from the moment he became the object of high

suspicion and more aggressive questioning on St. John. That is evident from what

happened. The agents proceeded to question him more closely and elicit more

incriminating information, and they then called the U.S. Attorney to get confirmation that

they could make an arrest. He was definitely not free to leave once that began, and the

reality of custody became more obvious over time, as the agents’ own actions amply

demonstrate. They directed Columna to drive his car to the docks; Dominguez then

parked Columna’s car and kept his keys and phone; Columna was searched and placed on

a CBP boat; he was brought to St. Thomas, where he was driven in a police car to FBI

headquarters; once there, he was placed in an interview room and formally interrogated

and eventually told he was under arrest. Therefore, even if we were to conclude that the

initial questioning in the car was mere “information gathering” (J.A. at 198), shortly into

the conversation in the parked car, when the agents decided that Columna was a suspect

and they sought to obtain incriminating evidence from his own mouth, the Fifth

Amendment was in play. No reasonable person would have felt free to leave. Columna

was, in short, in custody for Miranda purposes.

The majority opinion, however, concludes that the District Court “did not clearly

err in any of its fact finding,” and thus, they say, it correctly “found that Defendant was

not in custody when he spoke with the [a]gents in his car[.]” (Maj. Op. at 9 n.8, 12.)

16 Yet, “[w]hether a person was ‘in custody’ for the purposes of Miranda [is a] conclusion[]

reviewed de novo.” Jacobs, 431 F.3d at 104 (reviewing the underlying factual findings

for clear error); cf. (Maj. Op. at 9 (discussing the district court’s “factual basis to

conclude” that Columna was not in custody (emphasis added)). Applying that standard, I

would hold that Columna was in custody.

And, regardless, to the extent the District Court’s decision rested on fact finding,

which we review for clear error, I am also “left with the definite and firm conviction,”

Ludwikowski, 944 F.3d at 130, that the Court “committed a mistake in concluding that

[Columna] was not in custody when he made the St. John statements[.]” (Maj. Op. at

12.)

2. Interrogation

Because my colleagues hold that Columna was not in custody, they do not ask

whether the agents interrogated him such that Miranda warnings were required. There is,

however, no need for assumption. It is plain that Columna was interrogated.

“The interrogation necessary to trigger the need for Miranda warnings is not

limited to the quintessential station-house police interrogation.” Saranchak v. Beard, 616

F.3d 292, 302 (3d Cir. 2010). We must look to whether the agents intended to “actually

elicit[] statements” and whether the meeting “‘contain[ed] inherently compelling

pressures which work[ed] to undermine [Columna’s] will to resist and to compel him to

speak where he would not otherwise do so freely.’” Id. at 303, 305 (some alterations in

original) (quoting Miranda, 384 U.S. at 467). And “[a]ny knowledge the police [have]

concerning the unusual susceptibility of a defendant … might be an important factor in

17 determining whether the police should have known that their words or actions were

reasonably likely to elicit an incriminating response[.]” Innis, 446 U.S. at 301 n.8.

The agents’ questions to Columna in the car were designed to elicit incriminating

responses. There is no plausible denial of that. While they may have begun by asking

routine questions about the shooting because (they claim) they did not initially believe

Columna was a suspect, when they began to ask him about his Jeep’s location the night

before, the questions were aimed at gaining a confession. We don’t have to guess about

their intent; they owned up to it. They testified at the suppression hearing that, due to his

nervousness, they suspected Columna was involved in the crimes and began to press him

for admissions. 8 We have observed that, “[t]he more cause for believing the suspect

committed the crime, the greater the tendency to bear down in interrogation and to create

the kind of atmosphere of significant restraint that triggers Miranda[.]” Steigler v.

Anderson, 496 F.2d 793, 799 (3d Cir. 1974). That occurred here, and the agents got what

they were after: enough of a confession to formally arrest and charge Columna.

Despite that, the District Court held that the meeting was merely “information

gathering[,]” and the majority endorses that conclusion. (J.A. at 198.) To me, it seems a

long way from what actually happened and the protection that Miranda is meant to

afford. See In re Gault, 387 U.S. 1, 49 (1967) (protection of Miranda turns “upon the

nature of the statement or admission and the exposure which it invites”). Even if we

8 For example, Dominguez testified that, at that point, he “began asking [Columna] questions with the intention of getting more information from him related to his involvement in the events on September 25[.]” (J.A. at 144); see also infra note 8. 18 were to ignore all the circumstances that show the agents had shifted from gathering

information from an informant to interrogating a suspect, we cannot ignore their own

statements showing they were trying to get Columna to incriminate himself. Under oath

at the suppression hearing, Dominguez said, “Eventually, we got down to the fact that

there was a jeep that was used in the commission of this crime and we know that

[Columna] owns a jeep. And we asked him specifically, … where was your jeep? Did

you lend it to anybody?” (J.A. at 123.) Dominguez continued, “[W]e asked [him] more

questions about the jeep[.] … We suspected that there was more involvement. And

eventually, he tells us, okay, he actually drove them to the shooting in his own jeep.”

(J.A. at 123.) The agents “continued to talk to him” after that admission for about 45

minutes until they learned the full story. (J.A. at 124-25, 175.) At that point, Dominguez

testified that they “wanted to move the interview … to [the FBI] office … to make sure

[they] got all the details correct, knowing that [they] would have the ability to audio and

video record at that point.” (J.A. at 129.) As Dominguez put it, they “continued the

interview in the [FBI office’s] interview room.” (J.A. at 129 (emphasis added); see also

J.A. at 131 (Dominguez testified that he “want[ed] to advise [Columna] of [his] right [to

counsel] so [they] c[ould] continue the interview”).) On cross, Dominguez also testified

that he “suspected [Columna] had more information … to do with the shooting that …

occurred … [a]and so, [he] continued to ask him questions[.]” (J.A. at 143.)

In short, Dominguez conceded that, while still on St. John, he “ask[ed] [Columna]

questions with the intention of getting more information from him related to his

involvement in the events on September 25[.]” (J.A. at 144.) And, referring to the

19 interrogation on St. Thomas, Dominguez testified that “[Columna] basically just went

over the same details he had given us already.” (J.A. at 130.) That confirms the

statement he made to Columna during the St. Thomas interrogation: “The conversation

we’re going to have is the same as the one we already had [on St. John].” 9 (J.A. at 207.)

Those statements are plain admissions that, during the interrogation on St. John, the

agents used “words or actions” they “kn[ew] [were] reasonably likely to elicit an

incriminating response[.]” Innis, 446 U.S. at 300-01. In other words, they subjected

Columna to custodial interrogation.

Putting it all together, the agents’ actions on St. John exemplify why Miranda’s

prophylactic rule exists and how it protects citizens’ Fifth Amendment rights against self-

incrimination. The District Court should have suppressed the statements Columna made

on St. John. Oregon v. Elstad, 470 U.S. 298, 307 n.1 (1985) (requiring suppression of

unwarned statements).

B. Columna’s St. Thomas Statements

Once a suspect invokes his right to counsel, Miranda declares he “has a … right to

have counsel present during custodial interrogation.” Edwards v. Arizona, 451 U.S. 477,

9 See also Ashley’s suppression hearing testimony, (J.A. at 84-85 (“Based on … what the defendant had said [in the car] we had enough, we felt like, that he incriminated himself and was involved in the incident. … At that point we felt like we had enough to make an arrest.”), 106 (testifying to the fact that “as we spoke to him longer we started getting more and more information” until “we thought that … we needed to confer with the U.S. Attorney and let them know what we had gathered”)), and Dominguez’s other statements during Columna’s interrogation on St. Thomas referring to the agents’ questioning on St. John, (J.A. at 204 (“We had to move you for various reasons … [including that] it’s too much information and it’s very important that we have everything clear[.]”).) 20 482 (1981). Even the government admits that Columna was subject to custodial

interrogation in the interview room at the FBI office on St. Thomas. Unlike my

colleagues in the majority, I believe that Columna clearly invoked his right to counsel at

that time, and the agents failed to honor it.

1. Invocation of Right to Counsel

“Invocation of the Miranda right to counsel ‘requires … some statement that can

reasonably be construed to be an expression of a desire for the assistance of an

attorney.’” Davis v. United States, 512 U.S. 452, 459 (1994) (quoting McNeil v.

Wisconsin, 501 U.S. 171, 178 (1991)). The bar is not as high as the majority here makes

it out to be. Despite my colleagues’ insistence on great clarity, the Supreme Court has

never required that a suspect “‘speak with the discrimination of an Oxford don.’” Id.

(quoting id. at 476 (Souter, J., concurring)). True, “he must articulate his desire to have

counsel present sufficiently clearly that a reasonable police officer in the circumstances

would understand … [the] request for an attorney.” Id. But that amounts to a standard of

reasonable clarity, not perfect clarity. In determining whether there has been an

invocation of the right to counsel, we must look only to “the request for counsel or the

circumstances leading up to the request” to determine whether it was ambiguous; “an

accused’s postrequest responses to further interrogation may not be used to cast

retrospective doubt on the clarity of the initial request itself.” Smith v. Illinois, 469 U.S.

91, 98, 100 (1984).

The majority might be right – and I emphasize “might” – that Columna’s first

attempt to invoke his right to counsel – “I think that if I am under arrest, I have the right

21 to an attorney, right? If I’m under arrest.” – was insufficient. Cf. United States v.

Wysinger, 683 F.3d 784, 795 (7th Cir. 2012) (“‘Do I need a lawyer?’ … indicates that the

asker is contemplating whether he is in need of the services of a lawyer[.]”). But we

don’t need to decide whether, on its own, 10 that first request was enough to put the agents

on notice because Columna’s second request surely was sufficient, especially in light of

the full circumstances of the conversation.

Following Columna’s first mention of his right to counsel, Dominguez said: “[I]f

you want to talk to us, we need you to say, ‘Yes, I am going to talk to you without an

attorney.’” (J.A. at 207.) Columna answered, “No, [unintelligible] that if I am under

arrest, I need an attorney, I mean, even if afterwards, you know the family can get me

another one to … a main one, no? Because I am already under arrest, and I used to work

for you, right?” (J.A. at 208.) The English translation indicates Columna’s grammar was

less than perfect, but his statement was not less than clear. Dominguez said, “we need

you to say, ‘Yes,’” and Columna’s immediate response was “No,” followed by a sensible

explanation of why it was “no[.]” (J.A. at 207-08.) What is unclear about that? His

10 Columna’s second invocation is further strengthened by the fact that he attempted to ask for an attorney the first time. If insufficient on its own, the first statement would color a reasonable law enforcement officer’s interpretation of the second. See Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir. 1999), as amended (Sept. 2, 1999) (holding that the suspect’s “thrice-repeated questions [asking for an attorney], when considered together, constituted an unequivocal request for an attorney.” (emphasis added)); cf. United States v. Kelsey, 951 F.2d 1196, 1198 (10th Cir. 1991) (holding that defendant “invoked his right to deal with the police through an attorney” when he “asked to see his lawyer three or four times”). 22 words “can reasonably be construed to be an expression of a desire for the assistance of

an attorney.” Davis, 512 U.S. at 459. That should be the end of the analysis.

The words, “I need an attorney,” are particularly clear. Less clear invocations

have been held to be unequivocal invocations of the right. See, e.g., United States v. Lee,

413 F.3d 622, 626 (7th Cir. 2005) (“Can I have a lawyer?” is an unequivocal request for

an attorney, requiring that police officers halt the interrogation; “I think I should call my

lawyer,” “Can I talk to a lawyer?” and “I have to get me a good lawyer, man. Can I make

a phone call?” are also all unequivocal invocations of the right to counsel.). Again, we

do not require exacting words to request counsel, 11 Davis, 512 U.S. at 459, but if we did,

the statement “[I]f I am under arrest, I need a lawyer” would be a good candidate for the

suggested language.

And after Columna declared, “I need an attorney,” he added, “even if afterwards,

you know the family can get me another one to … a main one, no?” (J.A. at 207.) I

understand that statement as an effort to emphasize that he wanted counsel right then, in

11 See, e.g., Shedelbower v. Estelle, 885 F.2d 570, 573 (9th Cir. 1989), (“You know, I’m scared now. I think I should call an attorney[.]” was an invocation of defendant’s right to counsel); Owen v. Alabama, 849 F.2d 536, 538–39 (11th Cir. 1988) (defendant’s response to Miranda warning concerning right to counsel, “I think I’ll let y’all appoint me one,” was arguably a clear invocation of right to counsel which should be interpreted broadly); United States v. Gotay, 844 F.2d 971, 976 (2d Cir. 1988) (accused’s statement that she could not afford a lawyer and was concerned about obtaining a lawyer was arguably a clear request for counsel, requiring that questioning cease); White v. Finkbeiner, 611 F.2d 186, 190 (7th Cir. 1979) (defendant’s statement “I’d rather see an attorney” when asked if he wanted to talk constituted a request for counsel), aff’d 752 F.2d 540, 545 (7th Cir. 1985); United States v. Clark, 499 F.2d 802, 806 (4th Cir. 1974) (suspect’s remark “I had better talk to a lawyer” constituted a request for counsel).

23 the moment, even if later he wanted to proceed with a different lawyer. Despite the

Spanish-to-English language barrier, there is nothing hard to understand here. His

requests and references to wanting a lawyer should have been enough to overcome any

possible confusion about his desire for the assistance of counsel. Cf. United States v.

Wysinger, 683 F.3d 784, 795 (7th Cir. 2012) (holding that while “[i]n and of itself,

[suspect’s question] d[id] not constitute an unequivocal request for counsel. … [his] very

next sentence clarified the request and removed all doubt as to his meaning”).

Columna’s prefatory clause – “if I am under arrest” – does not undermine his

statement, “I need an attorney.” (J.A. at 208.) The final proof of that is what the agents

in fact understood from his words. As Dominguez testified, Columna “had asked for a

lawyer and we were done talking to him.” (J.A. at 164.) Although Dominguez did a bit

of flip-flopping, he was straightforward on cross examination when he agreed that

Columna had asked for a lawyer. Indeed, he agreed that Columna had unquestionably

done so. 12 (J.A. at 161; see also J.A. at 166 (“[A]t that time …, based upon what he was

telling us, and the fact that he was not going to speak to us anymore, we figured that our

only course of action was to place him under arrest and then go work the case from

another angle.”).)

12 To reiterate, at the suppression hearing, Columna’s counsel asked, “So there is no question at th[e] point [that Columna said, ‘I think that if I’m under arrest I need a lawyer’] that he is asking for a lawyer, correct?” To which, Dominguez replied, “That’s correct.” (J.A. at 161.)

24 But, even if the prefatory clause made his request for an attorney conditional,

Columna was under arrest at that point, satisfying the supposed condition. See Arrest,

Black’s Law Dictionary (11th ed. 2019) (defining “arrest” as “[a] seizure or forcible

restraint, esp. by legal authority[,]” or “[t]he taking or keeping of a person in custody by

legal authority, esp. in response to a criminal charge”). As the District Court stated at the

suppression hearing, “[the government] concedes [that Columna was] under arrest when

he [wa]s in St. Thomas.” 13 (J.A. at 184.)

And yet to demonstrate that “any possible confusion on [Columna]’s part about

whether he was under arrest or had a right to counsel” was “eliminated[,]” the majority

erroneously considers statements and actions that occurred after Columna’s request for

an attorney. (Maj. Op. at 14 (noting that “[t]hereafter, the [a]gents left the room for a

few minutes and when they returned, informed [Columna] that he was under arrest, gave

reasons why, and re-read his rights”).) My colleagues say “[b]ecause, in [their] view,

[Columna] did not unambiguously invoke his right to counsel, it is not error to consider

these actions.” (Maj. Op. at 14 n.13.) They are mistaken. Supreme Court precedent

expressly precludes analyzing post-request responses to determine whether a suspect has

invoked his right to counsel: “[S]ubsequent statements are relevant only to the question

whether the accused waived the right he had invoked.” Smith, 469 U.S. at 98. “Using an

13 The majority characterizes Columna’s invocations as merely seeking to “clarify his rights, expressing … his belief that if he was under arrest, he would need an attorney.” (Maj. Op. at 13-14.) But as discussed above, Columna was effectively under arrest – which the agents knew, even if he did not.

25 accused’s subsequent responses to cast doubt on the adequacy of the initial request itself

is … intolerable.” Id. at 98-99. “Whether in the same interrogating session or in

subsequent sessions, the so-called ‘flavor’ of an accused’s request for counsel cannot be

dissipated by continued police questioning.” Id. at 98 n.7. That makes sense. It is

circular to use words uttered after the statement in question to decide whether the

statement itself was an invocation, when the determination that there was an invocation

would preclude consideration of those same subsequent statements. 14 “Invocation and

waiver are entirely distinct inquiries, and the two must not be blurred by merging them

together. The importance of keeping the two inquiries distinct is manifest. Edwards set

forth a ‘bright-line rule’ that all questioning must cease after an accused requests

counsel.” Id. at 98.

In Smith v. Endell, the Ninth Circuit held that a defendant invoked his right to

counsel when he asked, “Can I talk to a lawyer? At this point, I think maybe you’re

looking at me as a suspect, and I should talk to a lawyer. Are you looking at me as a

suspect?” 860 F.2d 1528, 1529 (9th Cir. 1988) (The defendant continued, “Because if

you are, it’s … a serious charge and I think I should have counsel, if that’s where …

you’re coming from, just tell me if you are.”). The Endell Court held that the defendant’s

14 The majority’s own language further emphasizes why their conclusion is erroneous. They state, “in our view, [Columna] did not unambiguously invoke his right to counsel[.]” (Maj. Op. at 14 n.13.) The Supreme Court expressly prohibits consideration of post-request statements in determining whether the request constituted an invocation. Smith v. Illinois, 469 U.S. 91, 98-99 (1984). Their later attempts to color this decision as a factual finding does not change the Court’s prohibition on examination of subsequent statements. Cf. Edwards v. Arizona, 451 U.S. 477, 487 (1981) (discussing a determination of waiver as a legal holding, not a factual finding). 26 “initial request for counsel was not equivocal or ambiguous. It was conditional, but the

investigators knew the condition to be satisfied[,]” thus, “[c]ommunication … should

have ceased until an attorney was present.” Id. at 1531.

Just so here. If the agents effectively had him under arrest – and they did – then

he wanted an attorney. The agents testified at the suppression hearing that nothing

“changed between the end of [their] discussion with [Columna] and [their] decision to

say you’re under arrest. … [T]here was [no] new information.” (J.A. at 165-66.) Instead,

Dominguez confirmed to Columna what was already obvious, at least to the agents: he

was under arrest. The agents therefore “could not have mistaken [Columna’s] meaning.

Since they knew him to be [under arrest], questioning should have stopped until an

attorney was present[.]” Endell, 860 F.2d at 1531-32.

But even if there were some legal distinction between custody and arrest in a

context like this, it makes no difference here because Columna had sufficiently invoked

his right to counsel. We know that because the agents understood that he was requesting

an attorney. Unless the government is prepared to stipulate that the agents here are not

reasonable law enforcement officers, we don’t have to figure out what “a reasonable

officer in light of the circumstances would have understood[;]” the agents here did

understand that Columna was invoking his right to counsel. Davis, 512 U.S. at 459.

Accordingly, the agents’ interrogation should have stopped. That is not what

happened.

27 2. No Waiver

Under Miranda, once the right to counsel is invoked, all questioning must cease

until an attorney is present, 384 U.S. at 474, unless the right is waived, North Carolina v.

Butler, 441 U.S. 369, 372-76 (1979). “[A] valid waiver of that right cannot be

established by showing only that he responded to further police-initiated custodial

interrogation[. 15]… [He] is not subject to further interrogation … until counsel has been

made available to him, unless the accused himself initiates further communication,

exchanges, or conversations with the police.” Edwards, 451 U.S. at 484-85.

The police are not permitted to reinitiate a conversation. In Edwards v. Arizona,

the Supreme Court held that, the day after invoking his right to counsel, the suspect was

subjected to custodial interrogation “at the instance of the authorities” when the police

again advised him of his Miranda rights and requestioned him. 451 U.S. at 487. Thus,

the suspect’s “statement[] made without having had access to counsel[] did not amount to

a valid waiver and hence was inadmissible.” Id.; see also Arizona v. Roberson, 486 U.S.

675, 686 (1988) (holding that there was a “serious risk that the mere repetition of the

15 “[W]aivers … must … be voluntary, …[and] constitute a knowing and intelligent relinquishment … of a known right[,]” Edwards, 451 U.S. at 482, which depends “upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Id. And, “once a suspect has asked for the assistance of counsel, ‘it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the inherently compelling pressures [of custodial interrogation] and not the purely voluntary choice of the suspect.” Alston v. Redman, 34 F.3d 1237, 1243 (3d Cir. 1994) (quoting Arizona v. Roberson, 486 U.S. 675, 681 (1988)). Because Columna did not waive his right to counsel, we need not decide whether it was knowing or voluntary. 28 Miranda warnings would not overcome the presumption of coercion[,]” despite three

days elapsing between the “unsatisfied request for counsel and [] interrogation”).

The sequence of events matters. In Missouri v. Seibert, the Supreme Court noted

that, “[u]pon hearing warnings only in the aftermath of interrogation and just after

making a confession, a suspect would hardly think he had [] genuine [Miranda] right[s.]”

542 U.S. 600, 613 (2004). Thus, “when Miranda warnings are inserted in the midst of

coordinated and continuing interrogation, they are likely to mislead and depriv[e] a

defendant of knowledge essential to his ability to understand the nature of his rights and

the consequences of abandoning them.” Id. at 613-14. The Court has looked to factors

such as whether the post-Miranda questioning “proceeded after a pause of only 15 to 20

minutes, in the same place[,]” whether the same officer conducted both the pre- and post-

Miranda questioning, and whether the officer referred to previous conversation topics

from before the warning. Id. at 616.

Here, there is no dispute that both times that Dominguez gave Miranda warnings

to Columna, Columna declined to sign the waiver form. 16 There is also no dispute that

Columna answered questions after the second warnings, which followed what

Dominguez admitted was an invocation of the right to counsel. 17 Columna only spoke

16 That is not dispositive. See Berghuis v. Thompkins, 560 U.S. 370, 383-84 (2010) (“[W]aivers can be established even absent formal or express statements of waiver” and “can include waiver implied from all the circumstances.”). But it is informative. See Minnick v. Mississippi, 498 U.S. 146, 148 (1990) (considering a signed waiver form as a factor in whether the re-initiation was coerced). 17 The interaction proceeded as follows:

29 again after Dominguez said, “O.K. [Unintelligible] So, this is where we are[,] now

you’re under arrest? O.K.? Just so you know and it’s because you participated in the []

trafficking of cocaine. That was, that’s really why you’re in this problem now, so I am

going to read you your rights again.” (J.A. at 209.) The same law enforcement agent,

after an eight-minute break, re-initiated the conversation with Columna by referring to his

earlier statements and then re-reading the Miranda warnings to him. It is hard to imagine

a more blatant violation of the instructions laid out in Seibert, 542 U.S. at 613-14, which

are really only a reiteration of long-standing doctrine under Miranda, 384 U.S. at 474.

Because Columna invoked and did not waive his right to counsel, any statements

made on St. Thomas should have been suppressed.

Dominguez. [I]f you want to talk to us, we need you to say, “Yes, I am going to talk to you without an attorney.” If you want an attorney, you can have an attorney. The conversation we’re going to have is the same as the one we already had. … [officers speak in English to each other] Columna. No, [unintelligible] if I’m under arrest, I need an attorney, I mean, even if afterwards, you know, the family can get me another one to … a main one, no? Because I am already under arrest, and I used to work for you, right? Dominguez. O.K. now another minute. …. [eight minutes go by] Dominguez. O.K. [Unintelligible] So this is where we are … now you’re under arrest. … [continues speaking]. (J.A. at 207-209.)

30 C. The District Court’s erroneous rulings were not harmless.

As the statements should have been suppressed, we must reverse the District

Court’s ruling unless the error “was harmless beyond a reasonable doubt, i.e., [the

government] proves beyond a reasonable doubt that the inculpatory statements did not

contribute to [Columna’s] conviction.” Brownlee, 454 F.3d at 148 (internal quotation

marks omitted) (applying the test to a Miranda violation). The government itself

concedes that if we hold that the District Court erroneously admitted both statements, the

error is not harmless.

That concession is wise because the Supreme Court recognized in Arizona v.

Fulminante that “[a] confession is like no other evidence. Indeed, the defendant’s own

confession is probably the most probative and damaging evidence that can be admitted

against him.” 499 U.S. 279, 296 (1991). “Moreover, it is difficult for the [g]overnment

to argue with effect that the admission of the confession did not contribute to

[Columna’s] conviction when it submitted just the opposite view to the jury during the

trial.” Brownlee, 454 F.3d at 148. The government referred to Columna’s St. Thomas

and St. John confessions during its opening statement and closing argument; it introduced

testimony regarding the St. John confession three times through Dominguez, Martinez,

and Ashley; and it played the videotaped interrogation of Columna at FBI headquarters

(for 20-30 minutes), which – along with the translated transcript for the jurors – was

introduced into evidence. “[I]t is clear that the jury might have believed that the two

confessions reinforced and corroborated each other. For this reason, one confession was

31 not merely cumulative of the other.” Fulminante, 499 U.S. at 299. Their admission into

evidence was not harmless error.

Even if only one confession had been admitted, that admission would not have

been harmless error. “[A] full confession in which the defendant discloses the motive for

and means of the crime may tempt the jury to rely upon that evidence alone in reaching

its decision.” Id. at 296. The government, thus, cannot prove that the verdict “was surely

unattributable to the error[.]” Sullivan v. Louisiana, 508 U.S. 275, 279 (1993).

III. CONCLUSION

“A Miranda violation … affords a bright-line, legal presumption of coercion,

requiring suppression of all unwarned statements.” Elstad, 470 U.S. at 306 n.1. Because

Columna made the statements under custodial interrogation without properly being

advised of his Fifth Amendment rights, and because, even after invoking his right to

counsel, he was further engaged in conversation by the agents, the District Court erred in

denying his motion to suppress. I therefore respectfully dissent as to the portion of the

majority opinion addressing the right to remain silent and the right to counsel. I would

reverse the suppression ruling, vacate the conviction and sentence, and remand for further

proceedings.