United States v. Carpentino

United States Court of Appeals For the First Circuit

No. 18-1969

UNITED STATES OF AMERICA,

Appellee,

v.

KURT CARPENTINO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Lynch, Selya, and Lipez, Circuit Judges.

Robert F. Hennessy, with whom Schnipper Hennessy, PC was on brief, for appellant. Seth R. Aframe, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief, for appellee.

January 17, 2020

SELYA, Circuit Judge. Suspecting that defendant-

appellant Kurt Carpentino had transported an underage girl across

state lines for immoral purposes, a Vermont state trooper took him

into custody. An interview at a Vermont State Police (VSP)

barracks later that day ended abruptly when the defendant asked to

call a lawyer and was immediately returned to a holding cell.

Forty minutes later, the defendant sought to speak with the

troopers again, and the interview resumed. This time, the

defendant confessed.

After the defendant was charged federally, he beseeched

the district court to suppress the confession made during the

second phase of his custodial interrogation. In support, he

maintained that the interrogation had proceeded in derogation of

his Fifth Amendment rights as explicated in Miranda v. Arizona,

384 U.S. 436 (1966), and Edwards v. Arizona, 451 U.S. 477 (1981).

In a thoughtful rescript, the district court denied the defendant's

motion.

Following a jury trial that culminated in a conviction

and the imposition of a lengthy prison sentence, the defendant

appeals. He challenges only the denial of his motion to suppress.

The district court's denial of his motion to suppress rested on

three related findings: that the defendant initiated the second

phase of the interview, that he did not thereafter reinvoke his

right to counsel, and that he knowingly and voluntarily waived his

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Miranda rights before confessing. After careful consideration, we

conclude that all of these findings pass muster. Accordingly, we

affirm.

I. BACKGROUND

We rehearse the facts as supportably found by the

district court following the suppression hearing. See United

States v. Coombs, 857 F.3d 439 , 443 (1st Cir. 2017); see also

United States v. Carpentino, No. 17-cr-157-PB, 2018 WL 2768656 , at

*1-2 (D.N.H. June 8, 2018).

Around 8:00 a.m. on April 27, 2017, a VSP trooper

received a call informing him that M.H., a fourteen-year-old girl

from New Hampshire, was missing. The call directed him to proceed

to an abandoned motel in Rockingham, Vermont. Upon arrival, the

trooper learned that a search party had spotted M.H. near the motel

in the company of a man. The search party suspected that the

unknown man was the defendant: he was the landlord of the premises

in which M.H. was living, and his family owned the motel near where

M.H. had been seen.

The trooper issued a dispatch asking other law

enforcement personnel in the area to look out for the defendant's

vehicle. A local police officer stopped the defendant's vehicle

shortly after 9:00 a.m. The officer, along with others (including

the trooper), detained the defendant on the side of the road and

questioned him about M.H.'s whereabouts.

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In the meantime, the search party located M.H., who

reported that she had been kidnapped and assaulted. The trooper

received this news around 9:50 a.m., arrested the defendant, and

took him to a nearby barracks.

At 12:56 p.m., two troopers assigned to the

investigations unit brought the defendant to an interview room.

The troopers advised the defendant of his Miranda rights, and the

defendant signed a waiver form. He proceeded to tell the troopers

that he had driven alone from New Hampshire into Vermont the night

before. The troopers challenged the defendant's truthfulness,

explaining that they were collecting evidence that would likely

prove his story false. At that point, the defendant said that he

wanted to end the interview and talk to his lawyer. The troopers

immediately ceased their questioning and, at 1:49 p.m., returned

him to the holding cell. On the way to the cell, the defendant

asked to place a telephone call to his lawyer. The troopers said

he could do so. Notwithstanding this assurance, the troopers did

not give the defendant access to a telephone.

Approximately forty minutes after being returned to his

cell and before he was given access to a telephone, the defendant

waved at a camera to get a guard's attention. When the guard

approached the cell, the defendant asked to talk to the troopers

who had previously interviewed him. The troopers came to the

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defendant's cell, confirmed that he wished to speak with them, and

brought him back to the interview room.

The following conversation ensued, all of which was

recorded:

Trooper 2: I'll get you another glass [of water], and then we have to re-Mirandize you because we brought you back in.

Defendant: How much, would, uhm, the maximum time be for something like this?

Trooper 1: I'd have to look. You know, I don't . . . . I know a lot, but I don't know a lot of details, so I'm not sure.

Defendant: Alright. Uhm . . .

Trooper 1: Let me just get past this first, the administrative part. So I'm just, because we gotta go over these again. You've come to us saying "Hey, I want to talk to you again." Correct?

Defendant: Yeah, because, uhm, one of the things that the officer said that, uhm . . . once I was done talking with you was that if [sic] was up to you if I could have a phone call to my lawyer.

Trooper 1: Well is that what you're looking for, is a phone call to your lawyer or do you want to talk to us again?

Defendant: Uhm, I kinda need a phone call to my lawyer, too. I

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need to let somebody know that I'm here.

Trooper 2: Here you go Kurt.

Defendant: Thank you.

Trooper 1: I mean, if you want to talk to an attorney, then I can't talk to you. We can't talk to you.

Defendant: Alright.

Trooper 1: My understanding is that you indicated to somebody that you wanted to speak to us again.

Trooper 2: Is that true, or . . . ?

Trooper 1: Is that what you wanna do or do you want to talk to an attorney?

Defendant: I don't know. Just . . . I fucked myself.

Trooper 2: Well, you know us. We're just looking for the truth. That's all we're looking for.

Defendant: Yeah.

(Long pause)

Defendant: I should probably start from the beginning.

Trooper 2: Yeah, yeah, but we gotta get through the Miranda first.

Trooper 1: And Kurt, I have to make sure that we're clear on this. You want to talk to us.

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Defendant: Yeah.

Trooper 1: Okay. To do that, I have to re-go through that whole Miranda thing again. And if you want me to, I will. You made mention about calling a lawyer. If that's what you want, then we can do that, too. But I can't do both. I can do one or the other.

Defendant: I can talk with you with a lawyer, right?

Trooper 1: You can, but usually that doesn't happen.

Defendant: Okay.

Trooper 1: But it's up to you. I just want you, I want to be clear with you. I don't want . . .

Trooper 2: Make sure that it's clear that it's your choice.

Trooper 1: Yeah, you don't have to talk to us.

Trooper 2: You're in control here, well, I mean as far as . . .

Trooper 1: As far as talking to us.

Trooper 2: Right.

Defendant: Yeah. I'll talk.

Trooper 1: You'll talk to us.

Defendant: I'll talk.

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Trooper 1: Ok. I'm going to go through these again for you. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer before questioning and have a lawyer present with you during any questioning. If you cannot afford to hire a lawyer, one will be appointed to represent you at public expense before any questioning, if you wish. In Vermont, that's called a public defender. If you decide to answer questions, you can stop the questioning at any time. Do you understand each of these rights I've explained to you?

Defendant: Yes.

Trooper 1: Do you want to talk to me now?

Defendant: Fuck. I don't know. I'm scared. I don't know what's going on. Yeah, I'll talk. I just . . . I don't know how long, like, I'd be stuck here. Like, is there like an arraignment or something?

Trooper 1: Yeah. I'll explain all that. That's no big deal. Can I just get through this?

Defendant: Am I ready to talk to you, right?

Trooper 2: What's that?

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Defendant: We're at "am I ready to talk . . . ," "am I willing to talk to you?"

Trooper 2: Yeah.

Trooper 1: Mmm Hmm. Yes. I'm going to read you the waiver again. It says "I have been advised that I have the right to remain silent, to be represented by a lawyer and to talk with one prior to questioning and to have one present during questioning. Knowing my rights, I agree to waive them and talk to you now. No threats or promises have been made to me." Do you understand all that?

Defendant: I understand.

Trooper 1: What time you got? This is the same thing I read to you before. If you agree to it, feel free to read it.

At 3:03 p.m., the defendant signed a second Miranda waiver. The

troopers resumed the interview and, about thirty minutes later,

the defendant confessed to driving M.H. from New Hampshire to

Vermont and having sex with her in Vermont.

On October 4, 2017, a federal grand jury sitting in the

District of New Hampshire returned a four-count indictment against

the defendant. Early in the proceedings, the government

voluntarily dismissed three of the counts. This left only the

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charge of interstate transportation of a minor with intent to

engage in criminal sexual activity. See 18 U.S.C. § 2423(a).

In advance of trial, the defendant moved to suppress his

confession on the ground that the second phase of the interview

transpired in violation of his Miranda rights.1 The district court

held an evidentiary hearing and denied the motion to suppress.

The court concluded that, although the defendant had invoked his

right to counsel during the first phase of the interview, he

subsequently initiated an investigation-related conversation with

the troopers; that the defendant did not unambiguously reinvoke

his right to counsel during the second phase of the interview; and

that he knowingly and voluntarily waived his Miranda rights before

confessing. See Carpentino, 2018 WL 2768656 , at *2-4. After a

four-day trial during which the government played a recording of

the confession, the jury convicted the defendant. The district

court sentenced him to a 384-month term of immurement. This timely

appeal ensued.

II. ANALYSIS

The defendant's challenge to the denial of his motion to

suppress rests on a claim that the troopers procured his confession

in derogation of his Miranda rights. Miranda and its progeny

1 At the same time, the defendant moved to suppress statements made during his roadside detention. The district court refused to suppress those statements, and the defendant does not challenge that ruling on appeal.

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require that law enforcement officers provide warnings concerning

certain Fifth Amendment rights — including the right to remain

silent and the right to consult an attorney — before interrogating

a suspect in a custodial setting. See United States v. Hughes,

640 F.3d 428 , 434 (1st Cir. 2011); United States v. Conley, 156

F.3d 78 , 82 (1st Cir. 1998). Absent such warnings, most statements

that officers obtain during a custodial interrogation are

inadmissible at trial. See Conley, 156 F.3d at 82. Once a suspect

is advised of his Miranda rights, though, he may waive those rights

and consent to an interrogation. See Edwards, 451 U.S. at 484.

If the suspect invokes his right to counsel at any point during

the interrogation, all questioning must cease either until an

attorney is present or until the suspect initiates further

communication with the officers. See id. at 484-85; Johnston v.

Mitchell, 871 F.3d 52 , 57-58 (1st Cir. 2017); Conley, 156 F.3d at

82-83.

In the case at hand, both parties agree that the

interview at the barracks constituted custodial interrogation and,

thus, that compliance with the imperatives of Miranda and its

progeny serves as a condition precedent to the admissibility of

the confession. Similarly, there is no dispute that the defendant

invoked his right to counsel during the first phase of the

custodial interview and that the troopers, as required,

immediately ended the interview.

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The crux of the matter, then, is the second phase of the

interview — and the defendant's asseverational array focuses on

that phase. He challenges each of the three subsidiary findings

upon which the district court rested its denial of his motion to

suppress. Specifically, he contends that he did not initiate a

generalized discussion of the investigation with the troopers;

that he reinvoked his right to counsel; and that he did not

knowingly and voluntarily waive his Miranda rights before

confessing.

Our standard of review is familiar. We assay a district

court's findings of fact on a motion to suppress for clear error.

See Hughes, 640 F.3d at 434. Within this rubric, we are bound to

accept all reasonable inferences drawn by the district court from

those facts. See Coombs, 857 F.3d at 445-46. Questions of law

engender de novo review. See Hughes, 640 F.3d at 434. Against

this backdrop, we address the defendant's three assignments of

error sequentially.

A. Initiation.

To begin, the defendant argues that the court below erred

in concluding that he initiated communication with the troopers

about the investigation after he had terminated the first phase of

the interview. Even so, the defendant does not deny that he

initiated what would become the second phase of the interview by

waving from his cell at a camera and requesting to speak to the

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troopers. He says, though, that he sought to speak with the

troopers for the sole purpose of inquiring about the promised

telephone call to his lawyer. Because he did not initiate a

conversation about the substance of the investigation, his thesis

runs, his invocation of the right to counsel during the first phase

of the interview remained velivolant and barred the troopers from

seeking a renewed Miranda waiver and resuming their interrogation.

The relevant facts are not in dispute and, thus, we

review de novo the district court's conclusion that the defendant

initiated investigation-related communication with the troopers.

See, e.g., United States v. Thongsophaporn, 503 F.3d 51 , 56-57

(1st Cir. 2007); United States v. Fontana, 948 F.2d 796 , 806 (1st

Cir. 1991); see also United States v. Straker, 800 F.3d 570 , 621

(D.C. Cir. 2015) (per curiam).

As previously explained, the Edwards Court held that law

enforcement officers may not continue to interrogate a suspect in

custody who has invoked his right to counsel until an attorney is

present.2 See 451 U.S. at 484-85; see also Johnston, 871 F.3d at

57-58. Any subsequent questioning at the officers' behest without

2 The language that the Supreme Court employed in Edwards suggested only that law enforcement could resume an interrogation once "counsel has been made available" to the suspect. 451 U.S. at 484-85. The Court subsequently clarified that officers "may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney." Minnick v. Mississippi, 498 U.S. 146 , 153 (1990).

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a lawyer present is impermissible because, even if the officers

obtain a Miranda waiver, that waiver is presumed to be involuntary.

See Maryland v. Shatzer, 559 U.S. 98 , 104-05 (2010). This rule is

designed to prevent officers from badgering a suspect into

confessing in the inherently coercive environment of a custodial

interrogation. See id. at 105. Withal, it is common ground that

officers may resume questioning a suspect who has invoked his right

to counsel without an attorney present if the suspect "himself

initiates further communication, exchanges, or conversations."

Edwards, 451 U.S. at 484-85. To qualify for this exception, the

suspect must initiate this further communication without coercion

or probing. See United States v. Montgomery, 714 F.2d 201 , 204

(1st Cir. 1983).

Although courts have "broadly interpreted" the

circumstances that constitute initiation under Edwards, Fontana,

948 F.2d at 805, not all communication initiated by a suspect paves

the way for officers to resume investigation-related questioning.

If, say, the suspect makes "merely a necessary inquiry arising out

of the incidents of the custodial relationship," officers may not

commence an uncounseled interrogation. Thongsophaporn, 503 F.3d

at 56 (quoting Oregon v. Bradshaw, 462 U.S. 1039 , 1046 (1983)

(plurality opinion)). Such "necessary" inquiries are often

mundane; they include, for example, a request for a telephone,

clamor for food or water, and a declared need for access to a

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restroom. Bradshaw, 462 U.S. at 1045 (plurality opinion); see

Fontana, 948 F.2d at 806. Conversely, a suspect opens the door to

further questioning if his comments "evince[] a willingness and a

desire for a generalized discussion about the investigation."

Thongsophaporn, 503 F.3d at 56 (quoting Bradshaw, 462 U.S. at 1045-

46 (plurality opinion)). The initiation inquiry focuses not on

the suspect's subjective intent but, rather, on the objective

reasonableness of the officer's interpretation of the suspect's

statements. See Straker, 800 F.3d at 623; see also Bradshaw, 462

U.S. at 1046 (plurality opinion).

Here, a reasonable officer in the troopers' shoes could

have understood the defendant to be seeking to resume a generalized

discussion of the investigation. To begin, there is no dispute

that the defendant sought out further communication with the

troopers; he secured their attention by waving at the camera in

his cell and then confirmed that he wanted to speak to them. When

the troopers escorted the defendant to the interview room, his

very first question zeroed in on the crime that the troopers were

investigating: "How much, would, uhm, the maximum time be for

something like this?" A reasonable officer could have interpreted

this case-related question from the defendant as evincing a desire

on his part to discuss the investigation. Indeed, the defendant's

question concerned the investigation far more directly than a

number of vague queries that we previously have held constituted

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initiation. See, e.g., Thongsophaporn, 503 F.3d at 56 (asking

"what was going on[?]"); Conley, 156 F.3d at 83 (asking "what's

this all about?"); Fontana, 948 F.2d at 806 (asking "[w]hat's going

to happen to me?"); see also Bradshaw, 462 U.S. at 1045 (plurality

opinion) (asking "what is going to happen to me now?").

The defendant strives to persuade us to look beyond this

investigation-related question.3 He argues that his subsequent

exchange with the troopers makes manifest that his real (and

exclusive) purpose in seeking to speak with the officers was to

facilitate a telephone call to his lawyer. This argument derives

from the defendant's response to the troopers' next question, which

asked whether he wanted to talk to them; he replied, "Yeah,

because, uhm, one of the things that the officer said that, uhm

. . . once I was done talking with you was that if [sic] was up to

you if I could have a phone call to my lawyer." When the troopers

asked for clarification about whether he wished to speak with them

or (alternatively) to call his lawyer, the defendant responded,

"Uhm, I kinda need a phone call to my lawyer, too. I need to let

somebody know that I'm here."

3 The government contends that the initiation inquiry must end with the defendant's question about the maximum sentence for the crime and that his subsequent statements are relevant only to whether he reinvoked his right to counsel. Because these statements do not alter our conclusion, see infra, we do not address the government's contention about the proper scope of the initiation inquiry.

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This exchange does not demonstrate that a reasonable

officer would have understood the defendant to be initiating

communication for the purpose of securing a call to his lawyer.

Given the defendant's initial question about the maximum sentence

for the crime, the troopers reasonably could have thought that he

was expressing a desire for a generalized discussion about the

investigation. When the troopers attempted to confirm this desire,

the defendant suggested that he might want to call his lawyer.

Faced with a glaring ambiguity, the troopers sought to resolve it:

they explicitly asked the defendant whether he wanted to speak to

them or to his lawyer. The defendant replied that he needed to

call his lawyer "too." In light of the dual purposes for

initiating communication to which the defendant had just adverted,

a reasonable officer could have interpreted this statement to mean

that the defendant wanted both to speak with the troopers about

the investigation and to call his lawyer. Although the defendant

may subjectively have intended that the conversation with the

troopers take place with his lawyer present, his words do not make

any such intention clear.

The short of it is that the defendant initiated

investigation-related communication with the troopers when he

asked to speak with them and proceeded to inquire about the maximum

sentence for the crime. Nothing in his subsequent exchange with

the troopers would have made clear to a reasonable officer that

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the defendant initiated communication for the sole purpose of

securing access to a telephone to call his lawyer. Consequently,

we hold that the troopers did not abridge the defendant's right to

counsel by subsequently seeking a Miranda waiver and resuming the

custodial interrogation without an attorney present.

B. Reinvocation.

We turn next to the defendant's challenge to the district

court's determination that he did not reinvoke his right to counsel

during the second phase of the interview. This challenge consists

of the defendant's contention that his two references to calling

his lawyer at the beginning of the conversation constituted

unambiguous requests to speak to his lawyer. Because the troopers

turned a deaf ear to his invocation of the right to counsel and

resumed questioning him, his contention continues, the

interrogation proceeded in derogation of his Miranda rights. The

district court's conclusion that these statements did not

constitute an invocation of the right to counsel is reviewed de

novo. See, e.g., United States v. Sweeney, 887 F.3d 529 , 536 (1st

Cir.), cert. denied, 139 S. Ct. 322 (2018); United States v.

Oquendo-Rivas, 750 F.3d 12 , 19 (1st Cir. 2014); see also United

States v. Potter, 927 F.3d 446 , 450 (6th Cir.), cert. denied, ___

S. Ct. ___ (2019).

It is well-settled that an invocation of the right to

counsel — the trigger that mandates an immediate halt to law

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enforcement interrogation under Edwards — requires a clear and

unambiguous request for the assistance of an attorney. See

Obershaw v. Lanman, 453 F.3d 56 , 64 (1st Cir. 2006); Bui v.

DiPaolo, 170 F.3d 232 , 239 (1st Cir. 1999). If a suspect makes no

more than an ambiguous reference to an attorney, the interrogation

may continue. See Sweeney, 887 F.3d at 536. Like the initiation

inquiry, the test for invocation of the right to counsel is

objective, asking "whether the suspect has 'articulate[d] his

desire to have counsel present sufficiently clearly that a

reasonable police officer in the circumstances would understand

the statement to be a request for an attorney.'" Obershaw, 453

F.3d at 64 (alteration in original) (quoting Davis v. United

States, 512 U.S. 452 , 459 (1994)).

Moreover, Miranda and its progeny protect the right of

a suspect to an attorney's assistance only in handling a custodial

interrogation. See Grant-Chase v. Comm'r, N.H. Dep't of Corr.,

145 F.3d 431 , 436 (1st Cir. 1998). To invoke the right to counsel

in such a situation, a suspect must therefore "unequivocally demand

assistance, request the lawyer's presence, or otherwise clearly

indicate an unwillingness to make a statement absent presence of

an attorney." Oquendo-Rivas, 750 F.3d at 19. When a suspect makes

a request for a lawyer and that request is ambiguous as to purpose,

officers may — but are not required to — attempt to clarify whether

the suspect wants a lawyer to assist with the custodial

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interrogation or for some other reason. See Grant-Chase, 145 F.3d

at 436 & n.5. In sum, law enforcement officers must cease an

interrogation upon a request for an attorney only if the suspect

unequivocally expresses "his wish for the particular sort of

lawyerly assistance that is the subject of Miranda." McNeil v.

Wisconsin, 501 U.S. 171 , 178 (1991).

The record makes manifest that the defendant did not

clearly and unambiguously request the assistance of counsel at the

start of the second phase of the interview. When the troopers

sought to confirm that the defendant wanted to speak to them again,

the defendant responded, "Yeah, because, uhm, one of the things

that the officer said that, uhm . . . once I was done talking with

you was that if [sic] was up to you if I could have a phone call

to my lawyer." Although this response suggested that the defendant

wanted to speak with a lawyer at some point, the timing of the

request — "once [he] was done talking with [the troopers]" — was

inherently ambiguous. In light of his prior question about the

maximum sentence for the crime, the defendant could have been

requesting a call to his lawyer either then and there or instead

only after he spoke to the troopers again about the investigation.

Given this temporal ambiguity, the defendant's statement did not

"clearly indicate an unwillingness to make a statement absent

presence of an attorney." Oquendo-Rivas, 750 F.3d at 19.

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Nor did the defendant's next statement — "Uhm, I kinda

need a phone call to my lawyer, too. I need to let somebody know

that I'm here." — constitute a clear invocation of the right to

counsel. As we have explained, a reasonable officer could have

interpreted the defendant's use of the word "too" to mean that he

wanted both to speak with the troopers about the investigation and

to call his lawyer after doing so. Moreover, given the sequence

of the two sentences, the troopers reasonably could have understood

the defendant to be seeking a telephone call to his lawyer for the

purpose of letting someone know where he was. To be sure, a

suspect need not refer expressly to the interrogation or to a

desire for legal advice in order to invoke his right to counsel.

Cf. Davis, 512 U.S. at 459 (quoting approvingly Justice Souter's

statement, in dissent, that "a suspect need not 'speak with the

discrimination of an Oxford don'"). And it is possible that the

defendant subjectively wanted to let his lawyer know where he was

so that his lawyer could help him with the interrogation. From

the perspective of a reasonable officer, though, the defendant's

two statements, including the suggestion of his purpose in seeking

the telephone call, failed to make clear that he wanted to speak

with his lawyer in order to secure assistance with the impending

interview. See McNeil, 501 U.S. at 178.

In an effort to blunt the force of this reasoning, the

defendant argues that any reasonable officer would have

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interpreted his statement to request his lawyer's assistance with

the interrogation because he had made a clear request to that

effect an hour earlier (at the end of the first phase of the

interview). But the defendant's decision to initiate

investigation-related communication with the troopers undermines

this argument. A reasonable officer could well have thought that

the defendant had changed his mind about his decision not to submit

to further questioning without his lawyer present. What is more,

the defendant knew from the first phase of the interview that the

conversation would end if he requested his lawyer's presence — yet

he still expressed a desire to continue the conversation with the

troopers.

In a further effort to turn the tide, the defendant

suggests that the setting of the request — during a custodial

interrogation — renders unreasonable any inference that he asked

to speak to his lawyer for a purpose other than to secure

assistance with the interview. This suggestion has a patina of

plausibility: a request to consult an attorney made during a

custodial interrogation is often, as a factual matter, interposed

for the purpose of securing assistance with that interrogation.

See Grant-Chase, 145 F.3d at 436 n.5. But there is no

"irrebuttable presumption" that ascribes this purpose to all such

requests. Id. Given the defendant's intimation that he wanted to

speak to the troopers about the investigation and the reasonable

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inference that he sought to call his lawyer to tell somebody where

he was, the defendant's statement was ambiguous as to purpose.

Confronted with this ambiguity, the troopers prudently

explained to the defendant that they could not talk with him if he

wished to speak to his lawyer. Yet at no subsequent point during

the interview did the defendant request the assistance of counsel.

On this record, we conclude that the defendant did not

unambiguously invoke his right to counsel the second time around

and, thus, the troopers were free to proceed with the resumed phase

of the interview. See Sweeney, 887 F.3d at 536.

C. Waiver.

This brings us to the defendant's contention that he did

not waive his Miranda rights knowingly and voluntarily before

confessing. Although he twice signed a Miranda waiver, the

defendant contends that he did not fully understand the rights he

was relinquishing. And he adds that he was coerced into executing

the second waiver form. The district court rejected these

contentions, concluding that the defendant's waiver was both

knowing and voluntary. Because the factual predicate is

undisputed, we review this conclusion de novo. See United States

v. Rojas-Tapia, 446 F.3d 1 , 3 (1st Cir. 2006).

We begin with bedrock: most statements made by a suspect

during a custodial interrogation are inadmissible at trial absent

a valid waiver of Miranda rights. See Berghuis v. Thompkins, 560

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U.S. 370, 382 (2010). A suspect does not waive his Miranda rights

merely by initiating investigation-related communication with law

enforcement officers after previously asserting his right to

counsel. See Judd v. Vose, 813 F.2d 494 , 497 (1st Cir. 1987)

(explaining that initiation and waiver are separate analytic

steps). Because "[i]nvocation and waiver are entirely distinct

inquiries," James v. Marshall, 322 F.3d 103 , 108 (1st Cir. 2003)

(quoting Smith v. Illinois, 469 U.S. 91 , 98 (1984) (per curiam)),

the fact that a suspect does not invoke either his right to remain

silent or his right to counsel likewise does not itself establish

the necessary waiver of rights, see Berghuis, 560 U.S. at 382.

"What is required is a clear showing of the intention,

intelligently exercised, to relinquish a known and understood

right." United States v. Garcia, 983 F.2d 1160 , 1169 (1st Cir.

1993).

It follows that in order to determine the validity of a

Miranda waiver, we must ask whether, appraised in light of all the

circumstances, the waiver was both knowing and voluntary. See

United States v. Bezanson-Perkins, 390 F.3d 34 , 39-40 (1st Cir.

2004). A waiver is made knowingly if a suspect has "full awareness

of both the nature of the right being abandoned and the

consequences of the decision to abandon." Sweeney, 887 F.3d at

535-36 (quoting United States v. Rosario-Díaz, 202 F.3d 54 , 69

(1st Cir. 2000)). By the same token, a waiver is made voluntarily

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if the waiver is "the product of a free and deliberate choice

rather than intimidation, coercion and deception." Id. (quoting

Rosario-Díaz, 202 F.3d at 69). An inquiring court must start with

a presumption that the suspect did not waive his rights, and the

government bears the burden of showing the validity of the waiver

by a preponderance of the evidence. See United States v. Downs-

Moses, 329 F.3d 253 , 267 (1st Cir. 2003).

In the case at hand, we think that the government has

carried its burden of showing that the defendant knowingly and

voluntarily waived his Miranda rights for a second time before

confessing to the troopers. After the defendant initiated the

second phase of the interview, the troopers twice told him that

they would have to end their questioning if he said that he wanted

to talk with his lawyer. Relatedly, the troopers informed the

defendant that he did not have to speak with them. Despite these

forthright statements, the defendant nonetheless declared — not

once but three times — that he wanted to talk. The troopers read

the defendant his Miranda rights twice; the defendant both times

confirmed that he understood those rights; and the defendant then

signed a waiver form and agreed to speak with the troopers. Under

these circumstances, such a written waiver is strong evidence of

the knowing and voluntary nature of the defendant's relinquishment

of his Miranda rights. See North Carolina v. Butler, 441 U.S.

369 , 373 (1979). Taken as a whole, the record before us evinces

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an uncoerced choice by the defendant to waive his Miranda rights

with a complete understanding of those rights.

The defendant protests. To put meat on the bones of his

protest, he points to certain conditions of his detention and

certain aspects of his conversation with the troopers that, in his

view, suggest that his second waiver was neither knowing nor

voluntary. But these protestations, whether viewed separately or

in combination, do not undercut the validity of his waiver.

At the outset, the defendant claims that the troopers'

failure to provide him access to a telephone to call his lawyer

clouds the voluntariness of his waiver. He points out that the

troopers must have known that he wanted to call his lawyer because

he had invoked his right to counsel during the first phase of the

interview and, on his way back to the holding cell, had

specifically asked to place such a call. He adds that the troopers

did not arrange this call during the roughly hour-long period that

elapsed before the second phase of the interview got underway.

As an initial matter, we take note that individuals in

law enforcement custody have no absolute constitutional right to

use a telephone. See United States v. Footman, 215 F.3d 145 , 155

(1st Cir. 2000). "Miranda does not require that attorneys be

producible on call, but only that the suspect be informed . . .

that he has the right to an attorney before and during questioning

. . . ." Duckworth v. Eagan, 492 U.S. 195 , 204 (1989).

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Nevertheless, the failure of law enforcement officers to allow a

suspect to call his attorney may affect the voluntariness of a

Miranda waiver if that failure coerces into acquiescence a suspect

who would not otherwise waive his rights. The defendant contends

that his inability to call his lawyer coerced him in this manner.

This contention lacks force. Here, the record is utterly

devoid of any explanation as to why the troopers did not allow the

defendant to call his lawyer during the hour between the two phases

of the interview. The defendant's failure to develop the record

on this point is fatal to his claim that his inability to call his

lawyer rendered his waiver involuntary. An hour-long delay in

providing a detainee with access to a telephone is not inherently

unreasonable, and the defendant has offered no evidence that the

delay in this case was unjustified. Cf. United States v.

Chapdelaine, 616 F. Supp. 522 , 531 (D.R.I. 1985) (Selya, J.)

(finding no waiver of Miranda rights in part because the defendant

was not permitted to call attorney until next day despite multiple

requests to do so), aff'd, 795 F.2d 75 (1st Cir. 1986) (unpublished

table decision). Nor does the record suggest that the troopers

were employing a deliberate stratagem of denying telephone access

to suspects who ask to speak with their lawyers.

In all events, we have no principled way to conclude

that the hour-long delay coerced the defendant into waiving his

Miranda rights on the mistaken belief that he would otherwise never

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be able to call his lawyer. Before the troopers secured the

waiver, they asked the defendant multiple times if he wanted to

speak with his lawyer and emphasized that they would end the

interview if he chose that option. Notwithstanding these

inquiries, the defendant failed unequivocally to invoke his right

to counsel at the start of the second phase of the interview. In

the absence of a developed record, the troopers' clear explanation

of the right to counsel and the defendant's failure to demand the

assistance of his lawyer render implausible the contention that

the absence of the telephone call somehow coerced the defendant

into waiving his rights.

Let us be perfectly clear. We do not in any way condone

the VSP's failure to facilitate the defendant's requested

telephone call. Best police practices plainly entail providing a

suspect with prompt access to an attorney upon request. Here,

though, the lack of a developed record means that we have no

principled way of assessing the practical considerations that may

have been in play in this case. Under these circumstances, the

failure to afford the defendant a more prompt telephone call did

not render the defendant's Miranda waiver involuntary.4

4Relatedly, the defendant claims that the troopers' failure to facilitate his contact with his lawyer violated Vermont statutory law. See Vt. Stat. Ann. tit. 13, § 5234(a). We need not address this claim. Although the circumstances surrounding the nonoccurrence of the telephone call are relevant to the waiver analysis, the defendant identifies no authority — and we are aware

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Next, the defendant complains that the repeated urging

by various officers that he should tell the truth and cooperate

coerced him into waiving his Miranda rights. We do not agree.

Neither an admonition to tell the truth (even if repeated) nor a

suggestion that cooperation would lead to favorable treatment is

enough, without more, to constitute impermissible coercion. See

United States v. Jacques, 744 F.3d 804 , 809-10 (1st Cir. 2014);

Bezanson-Perkins, 390 F.3d at 42-43.

To be sure, the arresting officer went a step further

and threatened (during the traffic stop) that, if the defendant

withheld information, the officer "would do everything in [his]

power to see that [the defendant] went back to jail for as long as

possible." Such a threat of retaliation, though, is just one

factor relevant to a voluntariness analysis and is probative of

coercion only if it has a significant impact on the suspect. See

Jacques, 744 F.3d at 810-11. Here, the record does not show any

demonstrable impact of the officer's threat on the defendant — or

for that matter, any connection whatsoever between the threat and

of none — suggesting that the violation of a state statute during a custodial interrogation automatically renders a suspect's Miranda waiver involuntary. Cf. United States v. Doe, 170 F.3d 1162 , 1167-68 (9th Cir. 1999) (upholding Miranda waiver notwithstanding government's violation of federal statute requiring arresting officers to notify juvenile's parents of juvenile's Miranda rights prior to interrogation).

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the defendant's decision (more than six hours later) to waive his

Miranda rights.

With respect to the conditions of his detention, the

defendant focuses on the lack of food and sleep and the six hours

that passed before he signed the second waiver form. We approach

this aspect of the defendant's argument mindful that the

deprivation of basic necessities, coupled with an unreasonably

prolonged detention or interrogation, can affect the voluntariness

of a Miranda waiver. See Berghuis, 560 U.S. at 387. Even so, a

defendant asserting that a waiver was involuntary on this or any

other basis must show some form of coercive law enforcement conduct

or overreaching. See Colorado v. Connelly, 479 U.S. 157 , 170

(1986); Rojas-Tapia, 446 F.3d at 7.

In this instance, the defendant fails to link the

allegedly weakened physical condition he suffered from his lack of

food and sleep to any police misconduct. The troopers did know

that the defendant had not slept much the night before or eaten

that morning — he told them as much during the first phase of the

interview — but the defendant provides no evidence that he appeared

weak or that he asked for and was denied food or an opportunity to

sleep. See United States v. Acosta-Colón, 741 F.3d 179 , 200 (1st

Cir. 2013). And the troopers' provision of water for the defendant

on several occasions during the interview weakens any inference

that the failure to feed him during those six hours was coercive.

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So, too, because the interviews transpired during the late morning

and early afternoon hours, the troopers did not coerce the

defendant by failing, on their own initiative, to offer him an

opportunity to sleep. Given the totality of the circumstances,

the defendant has not shown that the troopers either caused or

took advantage of his hunger or exhaustion in a way that rendered

his waiver involuntary.

Nor does the six-hour duration of the detention, in and

of itself, invalidate the defendant's waiver. Courts generally

find involuntariness based on the length of a suspect's detention

or interrogation only when that factor is "accompanied . . . by

other facts indicating coercion, such as an incapacitated and

sedated suspect, sleep and food deprivation, and threats."

Berghuis, 560 U.S. at 387. No such indicia of coercion are present

in this case. Here, moreover, the spells of alternating detention

and questioning (lasting, in the aggregate, just over six hours)

were insufficiently lengthy or numerous to raise an inference that

the defendant's will was overborne.5 See, e.g., Davis v. North

5The defendant mentions that his detention exceeded the six- hour safe harbor limned in 18 U.S.C. § 3501(c). This provision modified the McNabb-Mallory rule — which requires suppression of a confession, even if voluntary, made after an unreasonable delay in presentment, Mallory v. United States, 354 U.S. 449 , 454-55 (1957); McNabb v. United States, 318 U.S. 332 , 340, 342-45 (1943) — to apply only when the defendant confesses more than six hours after arrest. See Corley v. United States, 556 U.S. 303 , 322 (2009). The defendant does not seek suppression based on a delay in presentment, though, and there is no per se rule rendering

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Carolina, 384 U.S. 737 , 742, 746-47 (1966) (finding confession

involuntary when defendant was interrogated daily for sixteen

days); Leyra v. Denno, 347 U.S. 556 , 561 (1954) (same when

defendant faced "days and nights of intermittent, intensive police

questioning").

The defendant's contention that the troopers misled him

about the nature of his Miranda rights is similarly unavailing.

The defendant asserts that the troopers tricked him into believing

that he would lose his only chance to speak with them about the

crime if he did not agree to an uncounseled interview on the spot.

He stresses the troopers' statement that he could speak to them

with an attorney but "usually that doesn't happen." The defendant

posits that this "now-or-never" choice is inconsistent with

Miranda, which protects a suspect's right to have a lawyer present

for any future questioning. See 384 U.S. at 470.

The test for the validity of a Miranda waiver requires

that we examine the troopers' statements in context. Cf.

Duckworth, 492 U.S. at 204-05 (evaluating adequacy of Miranda

warnings by examining entirety of officers' explanations of

suspect's rights). Viewed holistically, the troopers' explanation

of the defendant's rights was clear. They accurately told the

defendant — not once but twice — that they could not question him

invalid any Miranda waiver secured more than six hours after arrest but before presentment.

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if he requested an attorney. They also told him — not once but

thrice — that he could speak to them with an attorney if he so

desired. The totality of the conversation fails to support a claim

that the troopers tricked the defendant into thinking that his

only chance to speak with them was then and there, without an

attorney.

If more were needed (and we do not think that it is),

the defendant conceded in the district court that the allegedly

deceptive statement on which he hinges his argument — that he could

speak to the troopers with an attorney but "usually that doesn't

happen" — was true as a matter of fact. Even though "statements

that are literally true can nonetheless be misleading," Hughes,

640 F.3d at 439, this was not such a statement. The troopers told

the defendant several times that he could speak to them with a

lawyer if he wished to do so. The troopers may have thought that

telling the defendant that counseled interviews are rare would

induce him to agree to talk, but even "the use of chicanery does

not automatically undermine the voluntariness" of a Miranda

waiver. Id.; see United States v. Flemmi, 225 F.3d 78 , 91 n.5

(1st Cir. 2000) ("[T]rickery can sink to the level of coercion,

but this is a relatively rare phenomenon."). Perscrutation of the

record affords no reason to believe that the troopers' statements

to the defendant distorted his judgment about whether to waive his

Miranda rights.

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In a last-ditch effort to demonstrate the invalidity of

his waiver, the defendant points to what he claims was the fear

and confusion that he expressed right before signing the waiver

form: "Fuck. I don't know. I'm scared. I don't know what's

going on. Yeah, I'll talk. I just . . . I don't know how long,

like, I'd be stuck here. Like, is there like an arraignment or

something?" But the most plausible inference from this record is

that the fear the defendant voiced came from his realization that

he was facing significant legal trouble. A suspect's decision to

waive his Miranda rights upon such a realization may be foolish,

but that does not make it involuntary or unknowing. See United

States v. Rang, 919 F.3d 113 , 120 (1st Cir.) ("The Constitution

guards against compulsion by the state, not poor decision-making

by defendants."), cert. denied, 140 S. Ct. 44 (2019).

And although the defendant expressed confusion about his

right to an arraignment, "[t]he Constitution does not require that

a criminal suspect know and understand every possible consequence

of a waiver of the Fifth Amendment privilege." Colorado v. Spring,

479 U.S. 564 , 574 (1987). To show a knowing waiver, the government

need only demonstrate that the defendant knew that he could remain

silent and request a lawyer and that his statements could be used

against him. See id.; Moran v. Burbine, 475 U.S. 412 , 422-23

(1986). The government has made that showing here: the

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defendant's confusion about his right to an arraignment does not

cast doubt upon his comprehension of his Miranda rights.

That effectively ends this aspect of the matter.6 We

find that the defendant agreed to waive his Miranda rights after

the troopers repeatedly advised him of those rights and the

consequences of his waiver. He made this choice freely, without

coercion on the troopers' part. Accordingly, we hold that the

defendant's second Miranda waiver was both knowing and voluntary

and that his subsequent confession was therefore admissible at

trial. See Berghuis, 560 U.S. at 382; United States v. Faust, 853

F.3d 39 , 47-48 (1st Cir. 2017).

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

6 In addition to the arguments already addressed, the defendant adverts in passing to two other circumstances that might, in theory, affect the admissibility of his confession. First, he says that his detention had lasted seven hours by the time he confessed, suggesting the possibility that his confession (as opposed to his Miranda waiver) was involuntary. Second, he says that the troopers lied when they told him (during the first phase of the interview) that witnesses had seen him with M.H. at the abandoned motel. The defendant has not adequately developed either of these arguments and has, therefore, waived them. See United States v. Zannino, 895 F.2d 1 , 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.").

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