Monday, June 11, 2007

Court Applies Seibert for First Time; Remands for Sentencing Findings

United States v. Bearam, Docket No. 05-2823-cr (2d Cir. June 8, 2007) (Cardamone, Straub, Wallace C.JJ.) Here, the Court applies Missouri v. Seibert, 542 U.S. 600 (2004), for the first time, joining the parade of courts that have limited Seibert to cases involving a deliberate "two-step" interrogations. The Court also vacates a sentence where the district court made inadequate findings as to narcotics quantity and the defendant's role.

Facts: Agents executed a search warrant at a Brooklyn restaurant that Bearam managed. They found crack and powder cocaine, heroin and marijuana. Bearam was seated at a table near a closet where some of the drugs were found. When an agent asked Bearam about some of the drugs, Bearam said it was "bad coke." Bearam was not read his Miranda rights before this questioning; the agent testified that he had asked Bearam whether he had been read his rights and Bearam replied: "I don't know." The agent also asked other agents, who gave the same reply. About an hour later, agents brought Bearam to their headquarters, read him his rights, which he waived, and obtained a confession.

The district court suppressed the first statement, but allowed the post-Miranda statement to be used at trial.

Bearam was convicted after a jury trial. The initial PSR contained estimates of certain drug quantitites, and did not recommend a role adjustment; it identified the guideline range as 188 to 235 months' imprisonment. The government filed an objection, arguing that the drug quantity should be increased and that Bearam should receive a four-level role enhancement. In an addendum to the PSR, the Probation Department agreed with the government, changing its recommendation so that the range was 360 to life.

At sentencing, the district court did not make specific findings as to the drug quantity or Bearam's role, but adopted the new, higher range recommended by Probation. It sentenced Bearam to 360 months' imprisonment, without mentioning 18 U.S.C. ยง 3553(a), although the court did indicate that this sentence was "sufficient for that crime that was committed."

Ruling: For the Miranda issue, the Court took its first opportunity to untangle the meaning of Seibert; not an easy task, given the confusing line-up of opinions in that case. In the end, the Court took the easy way out, joining the host of other circuits that have limited Seibert to those cases where law enforcement officers deliberately attempted to circumvent Miranda by using a two-step interrogation process. Here, the Court had little trouble finding that there was no deliberate Miranda violation. The unwarned interrogation involved only one question, and did not overlap to a large degree with the full confession. The two interrogations were conducted by different agents, at different locations, and more than one hour elapsed between them. Moreover, here, the second agent did not even know about the first statement at the time he questioned Bearam.

On these facts, the Court held that this case was governed by Oregon v. Elstad, 470 U.S. 298 (1985), and not Seibert. Under Elstad, the only question is whether the second statement was voluntary. Here, the Court concluded that the second statement was preceed by proper Miranda warnings, which were validly waved, and was accordingly voluntary.

Bearam fared a bit better on his sentencing claims, even though he had not objected to his sentence (which is curious, given that he received a sentence nearly twice as long as that recommended by the PSR before the government started meddling with it). The Court first held that it was plain error for the district court to fail to make any factual findings as to drug quantity other than to find that the informant was a credible witness.

As for Bearm's role, the district court likewise failed to make the necessary specific findings, holding only that the role guideline "covers this defendant." In some cases, a role adjustment wil be upheld if the district court adopts the findings of fact contained in the PSR. But here, the judge did not even do that. He said nothing in open court, and adopted the PSR only in the "Statement of Reasons" section of the written Judgment. The Court found this to be plain error because the factual findings in the PSR were inadequate. It simply made reference to the informant's testimony about the number of dealers that Bearam supplied, but did not contain any of the specific information that the role guideline requires.

Comment: There are several interesting things about this case. First is something curious about the Miranda issue. At least as described in the opinion, Bearm was not in custody when he was first questioned - he was sitting at a table in his restaurant. If that is right, then he was not entitled to warnings, and the whole Seibert issue would seem to evaporate. There are also a few curiosities about the sentencing issues. First, as noted above, if the opinion is accurate, Bearam's counsel did not object to the 360-month sentence, or apparently even ask for a lower one. Let's hope that his counsel at rensentencing is a little bit more together. One other item: here, the district court did not mention 3553(a) or any of its factors (except for the guideline range, of course) at all when it sentenced Bearam. The Court of Appeals did not have a problem with this; it relied on a presumption that the judge "faithfully discharged" his statutory duty. It is easy to see how this presumption might apply in a case where the judge mentions the statute but does not specifically indicate his or her thinking about each and every factor in the statute. But it seems kind of a stretch to conclude that a judge has considered the statute where he has not mentioned it at all.


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