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United States of America v. Gordon J. Plugh

August 8, 2011

UNITED STATES OF AMERICA, APPELLANT,
v.
GORDON J. PLUGH, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Debra Ann Livingston, Circuit Judge:

10-2815-cr

United States v. Plugh

Argued: June 1, 2011

Before: JACOBS, Chief Judge, LIVINGSTON, Circuit Judge, RAKOFF, District Judge. *fn1

In light of the Supreme Court's decision inBerghuis v. Thompkins, -- U.S. --, 130 S. Ct. 2250 (2010),appellant the United States seeks reconsideration and reversal of an order of suppression entered by the District Court for the Western District of New York (Siragusa, J.) and previously affirmed by a panel of this Court. Because we agree that Berghuis constitutes an intervening change in controlling law and because we further agree that Berghuis compels a different outcome on these facts, we vacate the district court's order of suppression.

VACATED AND REMANDED.

The instant appeal arises from the suppression of certain custodial statements made by defendant-appellee Gordon Plugh shortly after his arrest. The district court (Siragusa, J.) suppressed these statements after concluding that Plugh had successfully invoked his Miranda rights by declining to sign a waiver-of-rights form, United States v. Plugh, 522 F. Supp. 2d 481, 495-96 (W.D.N.Y. 2007), and a panel of this Court affirmed, United States v. Plugh, 576 F.3d 135, 137 (2d Cir. 2009) (hereinafter, "Plugh I"). Specifically, the Plugh I majority concluded that the defendant's "unequivocal[] refus[al] to sign the waiver [of rights] form" was itself sufficient to invoke those rights, id., thus rejecting application of the standard set forth in Davis v. United States, 512 U.S. 452 (1994), whereby a defendant must "unambiguously" invoke his rights in order to cut off questioning, Plugh I, 576 F.3d at 142-43. As the Plugh I majority reasoned, "Davis does not instruct courts on how to analyze an initial invocation of one's Fifth Amendment rights following the Miranda warnings" but is instead limited to cases where a defendant attempts to "subsequently invoke[] previously waived Fifth Amendment rights." Id. at 143.

Shortly thereafter, while this case was pending before the district court, the Supreme Court announced its opinion in Berghuis v. Thompkins, --U.S.--, 130 S. Ct. 2250 (2010). There, the Court clarified that the Davis "unambiguous[]" statement standard does control a court's analysis of an initial invocation of both the right to remain silent and the right to counsel, id. at 2259-60, and it further held, on the facts of that case, that the defendant's conduct, which included a refusal to sign an advice-of-rights form, did not amount to an "unambiguous" invocation of those rights sufficient to cut off further questioning by law enforcement officials, id. at 2256, 2260.

In light of Berghuis, the United States now asks us to revisit our decision affirming the order of suppression in Plugh I. Because we agree with the government that Berghuis constitutes "an intervening change in controlling law," Doe v. N.Y.C. Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983) (internal quotation marks omitted), and because we further agree that Berghuis compels a different outcome on these facts, we reconsider the district court's order of suppression in this case and now vacate that order.

I. BACKGROUND

A. The Custodial Statements

Because the underlying facts are amply set forth in Plugh I, we rehearse them here only as necessary to facilitate this discussion:

Defendant Plugh initially came to the attention of FBI agents in July 2005 during the course of an investigation into child pornography possession and online trafficking. At that time, agents questioned Plugh and, with his consent, obtained from him a personal computer to be searched. That search uncovered evidence of child pornography. On September 28, 2005, Plugh was arrested at his father's home in Wayland, New York. Plugh I, 576 F.3d at 137. Upon placing Plugh in handcuffs, the agents advised Plugh of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436 (1966), and then asked him to sign a waiver-of-rights form. That form, prominently labeled "YOUR RIGHTS," contained the following:

Before we ask you any questions, you must understand your rights.

You have the right to remain silent.

Anything you say can be used against you in court.

You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a ...


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