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United States v. Con-Ui

United States District Court, M.D. Pennsylvania

June 2, 2017

UNITED STATES OF AMERICA
v.
JESSIE CON-UI, Defendant.

          MEMORANDUM

          A. Richard Caputo United States District Judge

         Defendant Jessie Con-ui is charged by indictment with two capital offenses and one non-capital offense. (Doc. 1). Counts one and two of the indictment allege that, on February 25, 2013, Mr. Con-ui, while an inmate at the United States Penitentiary Canaan Federal Correctional Complex ("USP Canaan"), committed a first-degree murder of federal corrections officer Eric Williams ("Officer Williams"), in violation of 18 U.S.C. §§ 1111 and 1114(1). Count three alleges that Mr. Con-ui knowingly possessed a prohibited object, namely, a sharpened weapon, in violation of §§ 1791(a)(2), (d)(1)(B), and (b)(3).

         On March 17, 2017, shortly before the commencement of his capital trial on April 24, 2017, Mr. Con-ui moved to suppress several un-Mirandized incriminatory statements he made to prison staff following the murder of Officer Williams on February 25, 2013. (Doc. 998, at 2).

         A hearing on the motion was held on May 25, 2017. The motion has been fully briefed and is now ripe for disposition. I will address each statement identified by Mr. Con-ui as violative of his Fifth Amendment rights in turn.

         I. Legal Standard

         A criminal defendant brings motions to suppress evidence under Federal Rule of Criminal Procedure 12(b)(3)(C). A defendant may move to suppress evidence obtained in violation of the Fifth Amendment to the United States Constitution's privilege against self-incrimination.

         The Fifth Amendment provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. To protect that right, the Supreme Court in Miranda v. Arizona ruled that police may not conduct a custodial interrogation without first administering the now-familiar Miranda warnings, which include the right to remain silent and the right to the presence of an attorney. 384 U.S. 436, 479 (1966); accord Dickerson v. United States, 530 U.S. 428, 443-44 (2000) (revisiting and reaffirming Miranda ). In general, if a suspect is not so warned, and does not thereafter make a knowing and voluntary waiver of those rights, the prosecution is barred from using statements obtained during the interrogation to establish its case in chief. See Michigan v. Harvey, 494 U.S. 344, 350 (1990); cf. Harris v. New York, 401 U.S. 222, 224-26 (1971) (holding that statements obtained in violation of Miranda may be admitted for impeachment purposes). Both inculpatory and exculpatory statements fall within the ambit of Miranda, 384 U.S. at 444. "A defendant's statements made in the course of a custodial interrogation are not admissible as evidence unless the defendant received appropriate warnings, or an exception applies." United States v. Leese, 176 F.3d 740, 743 (3d Cir. 1999).

         Miranda safeguards are required when a suspect is "(1) 'in custody' and (2) subject to 'interrogation' by the Government." 384 U.S. at 444; see also Leese, 176 F.3d at 743. A suspect is in custody when "there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125 (1983) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam)). An "interrogation" has been defined as "(a) conduct intentionally designed to evoke a confession, as well as (b) any conduct an officer should reasonably have foreseen would elicit an inculpatory response." United States v. Bonner, 469 Fed.Appx. 119, 126 (3d Cir. 2012) (citing Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). The term "interrogation" includes express questioning and any words or actions on the part of the police "that the police should know are reasonably likely to elicit an incriminating response." Innis, 446 U.S. at 301. Consequently, an officer cannot be held responsible for an unforeseeable statement by the suspect. Id. at 301-02.

         A statement is involuntary when the suspect's "will [is] overborne in such a way as to render his confession the product of coercion." Arizona v. Fulimante, 499 U.S. 279, 288 (1991). Whether a statement is voluntarily made is determined from "'the totality of all the surrounding circumstances-both the characteristics of the accused and the details of the interrogation.'" Dickerson v. United States, 530 U.S. 428, 434 (2000) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)).

         As a general rule, the burden of proof is on a defendant who seeks to suppress evidence. Unites States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995). However, once the defendant has established a basis for his motion, the government is required to prove by a preponderance of the evidence that the defendant's statements were not the product of custodial interrogation. See United States v. DeSumma, 44 F.Supp.2d 700, 703 (E.D. Pa. 1999); see also United States v. Barnes, 2005 WL 1899502, at *2 (E.D. Pa. Aug. 8, 2005); United States v. Prince, 157 F.Supp.2d 316, 324 (D. Del. 2001).

         II. Discussion

          1. Mr. Con-ui's Statements during an Exchange with Officer Boynton

         Shortly after 10:00 p.m. on February 25, 2013 at USP Canaan, correctional officer Jeremy Bennett discovered Officer Williams on the floor of prison Unit C-1 (the “Unit”), unconscious and bleeding from wounds on his face, head, and neck. (T.R. 11-13, 31, 67, 107, Doc. 1152). No inmates were in sight; it appeared that all inmates had retreated to their cells, which encircled the unit. (T.R. 13). The doors to their cells, however, were unlocked. (T.R. 32-33, 89-90, 107, 123). Officer Bennett immediately summoned other officers who quickly descended on the unit. (T.R. 13).

         Upon entering the unit and learning of Officer Williams's condition, Lieutenant Brian Sudul yelled out: "I'm going to kill one of you motherfuckers." (T.R. 34). All one hundred seventeen (117) inmates housed in the Unit at the time remained in their cells. (T.R. 13, 132). Lt. Sudul then armed himself with a pepper ball gun and ordered officers to lock all cells. (T.R. 33-34, 35). Over the course of approximately ten minutes, all sixty-four (64) cell doors were individually locked without incident. (T.R. 33-35, 68, 107-08; Doc. 998-4, at 2). After all of the inmates were secured, Lt. Sudul left the Unit to assess Officer Williams's condition in the medical unit. (T.R. 37).

         As is standard procedure, the officers began conducting visual upper body searches of each inmate. (T.R. 36). Shortly afterwards, following the discovery of blood on the stairs leading to Mr. Con-ui's cell, Officer Ryan Boynton, along with other officers, approached Mr. Con-ui's cell. (T.R. 70, 92, 110, 124).

         Officer Boynton performed a visual upper body check and noticed a cut on the palm of Mr. Con-ui's hand. (T.R. 93). Officer Boynton said, "Did you do this?" Mr. Con-ui nodded his head in the affirmative. (T.R. 93). Officer Boynton then said, "You did this? You killed him? Over what?" Mr. Con-ui responded, "Yes, disrespect issue." (T.R. 93-94). Officer Boynton noticed that Mr. Con-ui was holding a clear plastic knife. (T.R. 94). Officer Boynton ordered Mr. Con-ui to slide the knife under the door, but Mr. Con-ui said, "No, I'll keep it." (T.R. 94). Officer Boynton ordered him again to slide the knife under the door and Mr. Con-ui said, "No, you'll kill me." (T.R. 94).

         Mr. Con-ui now seeks to suppress the above-cited statements, which, as is undisputed, were un-Mirandized. (See, e.g., T.R. 100). Specifically, Mr. Con-ui argues that he was subjected to "custodial interrogation" within the meaning of the Fifth Amendment when he made those statements. (Doc. 998, at 9-11).

         As the Supreme Court has held, an inmate is not automatically in "custody" within the meaning of Miranda. Howes v. Fields, 565 U.S. 499 (2012); Burkholder v. Newton, 116 Fed.Appx. 358, 361 (3d Cir. 2004); United States v. Chamberlain, 163 F.3d 499, 503 (8th Cir. 1999). Miranda warnings are required in prison interrogations only when there is a "change in the surroundings of the prisoner which results in an added imposition on his freedom of movement." Burkholder, 116 Fed.Appx. at 361 (quoting United States v. Conley, 779 F.2d 970, 973 (4th Cir. 1985)).

It is true that taking a prisoner aside for questioning may necessitate some additional limitations on his freedom of movement. A prisoner may, for example, be removed from an exercise yard and taken, under close guard, to the room where the interview is to be held. But such procedures are an ordinary and familiar attribute of life behind bars. Escorts and special security precautions may be standard procedures regardless of the purpose for which an inmate is removed from his regular routine and taken to a special location.

Howes, 565 U.S. at 513. "Because restraint on freedom is the status quo of a prisoner, the courts examine the totality of the circumstances surrounding the interrogation to ascertain whether the defendant should be deemed 'in custody' for purposes of Miranda." Bruce v. United States, 439 F.Supp.2d 364, 371 (M.D. Pa. 2006). The relevant factors include "the language or means used to summon the prisoner to the interrogation, the prisoner's freedom to leave the scene of the interrogation, the purpose, place and length of the interrogation, any added imposition on the prisoner's freedom of movement and whether circumstances suggest any measure of compulsion above and beyond confinement." Id. (quoting United States v. Caro, 2006 WL 1594185 at *1 n.1 (W.D. Va. June 2, 2006)); see also Howes, 565 U.S. at 514 ("When a prisoner is questioned, the determination of custody should focus on all of the features of the interrogation, " including the language used in summoning the prisoner to the interview, and the manner in which the interrogation is conducted).

         As the Supreme Court has explained, Miranda applies to situations when an arrestee is subject to a "sharp and ominous change" in environment when arrested and then "whisked to a police station for questioning, " because the shock of such a change "may give rise to coercive pressures." Howes, 565 U.S. at 511. "By contrast, when a person who is already serving a term of imprisonment is questioned, there is usually no such change" in environment. Id. "Interrogated suspects who have previously been convicted of crime live in prison, " and "[f]or a person serving a term of incarceration . . . the ordinary restrictions of prison life . . . are expected and familiar and thus do not involve the same 'inherently compelling pressures' that are often present when a suspect is yanked from familiar surroundings in the outside world and subjected to interrogation in a police station." Id. (citing Maryland v. Shatzer, 559 U.S. 98, 103 (2010)).

         Here, I find that the totality of the facts and circumstances attendant to the exchange with Officer Boynton did not amount to custody for purposes of Miranda. Nothing suggests that any additional burden was imposed on Mr. Con-ui's otherwise constrained freedom of movement.

         Mr. Con-ui was not free to leave his cell because he was an inmate and being confined to a locked cell was the normal and expected restraint on freedom he, along with hundreds of other inmates, experienced on a daily basis prior to the incident as a natural consequence of incarceration. (T.R. 11). Confinement inside a locked cell, at the time Mr. Con-ui made the statements at issue, was Mr. Con-ui's usual environment.

         Although Mr. Con-ui was isolated from other inmates at the time he was approached by the officers, Mr. Con-ui was not removed from the prison population for the purposes of the questioning, and his isolation was again a result of the ordinary procedures requiring inmates to be locked in their cells in the evening. (T.R. 11). As the Supreme Court has held, "[i]solation from the general prison population . . . does not suggest on its own the atmosphere of coercion that concerned the Court in Miranda." Howes, 565 U.S. at 513. In no way was Mr. Con-ui "cut off from his normal life[.]" Shatzer, 559 U.S. at 106.

         The manner in which the questioning was conducted also does not suggest a coercive environment with which Miranda was concerned. Mr. Con-ui was interviewed in a non-coercive area - his own cell - and was not pressured to disclose any information. (T.R. 94, 95 (describing Mr. Con-ui as "relaxed, very calm")). There is nothing to suggest that a coercive tone or manner was employed by the officers, nor is there any evidence of deception or compulsion. (T.R. 94, 95). See Shatzer, 559 U.S. at 112 (stating that courts must assess "whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda"). In fact, Mr. Con-ui felt free to exercise his right not to speak when he declined to answer Officer Ryan Swartzfager questions about the origin of the cuts on Mr. Con-ui's hand, which suggests an awareness on Mr. Con-ui's part that he could freely terminate the exchange under these circumstances. (T.R. 71).

         No officer present during the exchange was armed; even if Mr. Con-ui was not aware of that, no weapons were drawn or displayed.[1] (T.R. 51). There is no evidence that Mr. Con-ui was formally placed under arrest or that he was bound or physically restrained by the officers. The visual body check conducted by the officers on Mr. Con-ui was also "an ordinary and familiar attribute of life behind bars, " Howes, 565 U.S. at 513, as it was conducted on all inmates in the Unit as a result of the earlier incident. (T.R. 36-37, 69).

         There is no evidence that the officers tricked or baited Mr. Con-ui or that aggressive questioning tactics were employed. Moreover, the questioning lasted no more than a few seconds. (T.R. 94-95). Cf. Howes, 565 U.S. at 515 (five-to-seven-hour prison interview that "continued well past the hour when respondent generally went to bed" was non-custodial).

         Mr. Con-ui was also never told that he was considered a suspect. See Stansbury v. California, 511 U.S. 318, 325 (1994) (although officers' statements to suspects are relevant to custody analysis, "[e]ven a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue").[2] Thus, a reasonable person in Mr. Con-ui's position would have understood himself not to be "in custody" but, rather, to be free to discontinue the brief conversation.

         Thus, the circumstances discussed above did not create a custodial environment for purposes of Miranda. There was no "change in the surroundings of the prisoner which result[ed] in an added imposition on his freedom of movement." Cervantes, 589 F.2d at 428. Mr. Con-ui was already locked in his cell at the time of the exchange at issue, and there were no changes in his circumstances which would signify the "inherently coercive pressures" contemplated by the Miranda Court. Fields, 565 U.S. at 509. It is thus clear that the statements were not elicited in a custodial setting. See Wilson v. Cain, 641 F.3d 96, 100-04 (5th Cir. 2011); United States v. Armstrong, 2010 WL 3981005, at *10 (W.D. Pa. Oct. 8, 2010), aff'd sub nom. United States v. Diehl-Armstrong, 504 Fed.Appx. 152 (3d Cir. 2012); United States v. Melancon, 2010 WL 324007, at *7 (E.D. La. Jan. 21, 2010), aff'd, 662 F.3d 708 (5th Cir. 2011); see also United States v. Conley, 779 F.2d 970, 974 (4th Cir. 1985).

         Finally, whether or not Mr. Con-ui was subjected to an interrogation does not affect the conclusion of the foregoing inquiry. As I have found, Mr. Con-ui was not "in custody, " and thus, not under "custodial interrogation." Therefore, Miranda warnings were not warranted. Accordingly, the statements will not be suppressed.

         2. Mr. Con-ui's Statement to Officer Celuck

         Mr. Con-ui's second challenge concerns a statement he made to Officer William Celuck shortly after Mr. Con-ui's exchange with Officer Boynton. At that time, Officers Celuck and Mark Turner were ordered to stay by Mr. Con-ui's cell while the extraction team geared up in case Mr. Con-ui refused to leave his cell. (T.R. 112, 125). As Officer Celuck was standing in front of Mr. Con-ui's cell door, he heard Mr. Con-ui say, "He disrespected me, CO, he disrespected me, CO." (T.R. 111, 126).

         Similarly to Mr. Con-ui's statements to Officer Boynton, I find that Mr. Con-ui was not in custody for the purposes of the Fifth Amendment when he made the above-cited statements to Officer Celuck. Thus, the analysis of Mr. Con-ui's custodial status in the preceding section is fully applicable here.

         Moreover, under the totality of the circumstances, as established through the credible testimony at the hearing, I find that Mr. Con-ui was not subject to interrogation because he volunteered his statements to Officer Celuck. The statement was made by Mr. Con-ui without any prompting by Officer Celuck, or any other officer, and was not made in response to any questioning. (T.R. 125-26). "Voluntary confessions are not merely a proper element in law enforcement, they are an unmitigated good, essential to society's compelling interest in finding, convicting, and punishing those who violate the law." Shatzer, 559 U.S. at 108 (internal quotation marks and citations omitted). As such, Mr. Con-ui's voluntarily statement to Officer Celuck will not be suppressed.

         3. Mr. Con-ui's Statement While Being Escorted by Lieutenant Sudul

         Mr. Con-ui next seeks to suppress a statement he made to Lt. Sudul while being escorted to a holding cell in Lt. Sudul's office.

         Shortly after Mr. Con-ui's statements to Officer Celuck, Lt. Sudul returned to the Unit (T.R. 39) and, after reassuring Mr. Con-ui that he would not be harmed, (T.R. 39, 52), he ordered the extraction team to stand down, placed Mr. Con-ui in restraints, removed him from his cell, and locked him in a holding cage in his office. (T.R. 40-42). While being escorted to the holding cage, Mr. Con-ui said, "Hey man, I am sorry but I had to do what I had to do. I am sick of all your people's disrespect." (T.R. 55, 115).

         As to Mr. Con-ui's custodial status, I find that he was subjected to a restraint on freedom of movement "of the degree associated with a formal arrest" when he was being moved to the holding cage. Conley, 779 F.3d at 973. Given that Mr. Con-ui was placed in restraints, removed from the cell, and escorted by a squadron of officers to an isolated holding cell (T.R. 54, 56), I find that there was a "change in the surroundings of [Mr. Con-ui] which result[ed] in an added imposition on his freedom of movement." Burkholder, 116 Fed.Appx. at 361 (quoting United States v. Conley, 779 F.2d 970, 973 (4th Cir. 1985)). Thus, he was in custody for the purposes of the Fifth Amendment.

         It is well-settled law, however, that statements made by a person spontaneously or without prompting after being placed in custody are not subject to exclusion at trial. Rhode Island v. Innis, 446 U.S. 291, 300 (1980). Interrogation, for the purposes of the Fifth Amendment, is defined as express questioning or "any words or actions on the part of 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." United States v. Browlee, 454 F.3d 131, 146 (3d Cir. 2006) (quoting Innis, 446 U.S. at 300-01).

         Here, both Lt. Sudul (T.R. 41) and Officer Turner (T.R. 115) credibly testified that the statement at issue was made by Mr. Con-ui without any prompting or questioning. There is nothing to suggest that the officers engaged Mr. Con-ui in any way; in fact, the officers were specifically ordered "not to speak to [Mr.] Con-ui." (T.R. 73). No conduct on the part of the escorting officers was intended to, or was reasonably likely to, elicit an incriminating response. Notably, after Mr. Con-ui made the statement at issue, Lt. Sudul responded, "Listen, man, Miranda doesn't apply to me. I suggest you remain silent." (T.R. 42; Doc. 998-2, at 3). Thus, I find that Mr. Con-ui's statement was voluntary, unsolicited, and not made in response to any questions. As such, Mr. Con-ui's statement is outside of Miranda's protections and will not be suppressed.

         4. Mr. Con-ui's Response to Officer Bennett's Question

          Mr. Con-ui next seeks to suppress a nonverbal response to Officer Bennett's question. According to the government, after Mr. Con-ui was placed in the holding cell in Lt. Sudul's office, Officer Bennett, who had just learned that Officer Williams died, opened the door to Lt. Sudul's office and asked Mr. Con-ui, "Why?" (T.R. 15-16). In response, according to Officer Bennett, Mr. Con-ui smiled and laughed. (T.R. 24).

         At the suppression hearing, Officer Bennett testified:

When I walked past the lieutenant's office, I saw Con-ui in there. And I asked . . . Lieutenant Sudul, that night, I said, is that him, and he said, yes. And I opened up the lieutenant's office door, peeked my head in, and I just yelled why. . . . I was not expecting an answer. When I asked why, he just smiled at me and let out a little laugh.

(T.R. 15). Officer Bennett's testimony, however, is not corroborated by the staff memorandum he completed on February 25, 2013, which omits any mention of the exchange with Mr. Con-ui in Lt. Sudul's office. (T.R. 16; Gov't Ex. 5). His explanation as to the omission, that "[it] was not on [his] mind doing the report at the time, " (T.R. 17, 20, 22) is unconvincing. Officer Bennett also admitted that he "never discussed" the interaction he had with Mr. Con-ui until his interview with the Federal Bureau of Investigation some three years after the murder of Officer Williams. (T.R. 22-23; Doc. 998-1). In fact, Lt. Sudul learned of Officer Bennett's interaction with Mr. Con-ui for the first time at the suppression hearing, when questioned by defense counsel. (T.R. 58).

         Officer Bennett also stated that he was able to enter the lieutenant's office because its door was unlocked. (T.R. 19). However, Lt. Sudul testified that he personally locked the door to the office. (T.R. 59-60). As such, Officer Bennett's account is not supported by the credible testimony of Lt. Sudul.

         Moreover, although a camera was set up in front of Mr. Con-ui's holding cage, (T.R. 26, 27, 57, 58, 62; Doc. 998-1, at 3), the government presented no evidence that Officer Bennett's interaction with Mr. Con-ui was captured on video, even though the camera, which recorded audio as well as video, would have been recording when Officer Bennett entered the lieutenant's office. (T.R. 62).

         Thus, I find that the preponderance of the evidence does not establish that Mr. Con-ui's nonverbal statements at issue were made. As such, the testimony about those statements will be precluded.

         5. Mr. Con-ui's Statements to Prison Psychologist John Mitchell

         Next, Mr. Con-ui seeks to suppress certain statements he made during an evaluation conducted by Dr. John Mitchell, the chief psychologist at the United States Penitentiary at Allenwood (“USP Allenwood”), on February 27, 2013. (T.R. 135). During the evaluation, Mr. Con-ui stated, inter alia, that “disrespect” was the primary reason that led to the incident at USP Canaan. (T.R. 145; Doc. 998-5; Gov't Ex. 6). Mr. Con-ui further stated that he had “swallowed a lot” with regards to the disrespect from Officer Williams and felt like he could not tolerate such disrespect from him any longer. (T.R. 145; Doc. 998-5; Gov't Ex. 6). Mr. Con-ui also stated that he had “overreacted.” (T.R. 145; Doc. 998-5; Gov't Ex. 6) (collectively, the “Mitchell statements”). Because I find that the Mitchell statements were the product of a custodial interrogation unaccompanied by a prior Miranda warning, they will be suppressed.

         Mr. Con-ui was transferred from USP Canaan to USP Allenwood after the incident involving Officer Williams occurred on the night of February 25, 2013. (See T.R. 136). He was placed in an observation cell in “health services” and subjected to ambulatory restraints. (T.R. 136, 148-49). The interview with Dr. Mitchell occurred the next day while Mr. Con-ui was in the same observation cell.[3] (T.R. 138, 152). Mr. Con-ui was not provided with any advance notice prior to Dr. Mitchell's arrival for the evaluation. (T.R. 148). Dr. Mitchell was accompanied by two officers during the evaluation: Captain Gabrielson and Lieutenant Stover. (T.R. 148). Throughout the interview, Mr. Con-ui continued to be restricted by ambulatory restraints, which Dr. Mitchell described as “a belly chain around [Mr. Con-ui's] waist that was connected to hand restraints as well.” (T.R. 149:6-7). Dr. Mitchell testified that the purposes of the interview were to conduct a mental health evaluation in connection with a referral to USP, Administrative Maximum Facility in Colorado (“ADX”), and to assess whether there was any psychological reason to keep Mr. Con-ui in restraints. (T.R. 137). Mr. Con-ui initially declined to answer questions about the attack on Officer Williams, but subsequently made statements concerning the incident in response to follow-up questions posed by Dr. Mitchell. (T.R. 153-55; Gov't Ex. 6). However, Dr. Mitchell was not the only prison employee who posed questions to Mr. Con-ui. Captain Gabrielson also asked Mr. Con-ui questions during the course of the interview. (T.R. 153, 155). Dr. Mitchell testified that Captain Gabrielson asked Mr. Con-ui questions about the attack on Officer Williams, although he could not recall the specific nature of the inquiries. (T.R. 155). Prior to conducting this evaluation, Dr. Mitchell was informed of the assault that Mr. Con-ui allegedly perpetrated upon Officer Williams. (T.R. 140, 149, 156). Mr. Con-ui was not provided with a Miranda warning before the evaluation. (T.R. 150). This encounter lasted twenty-five to thirty minutes (T.R. 147).

         A prison psychologist may be required to issue a Miranda warning before conducting an interview of an inmate. See Burkholder v. Newton, 116 Fed.Appx. 358, 361 (3d Cir. 2004) (citing Estelle v. Smith, 451 U.S. 454, 465 (1981)) (“A prison psychologist is required to give Miranda warnings before conducting an interrogation.”). Of course, in order for such a warning to be required, the prerequisites for Miranda still must be satisfied: the inmate must be in “custody” and subject to an “interrogation.” See Jackson v. Conway, 763 F.3d 115, 136-37, 139 (2d Cir. 2014) (noting that non-law- enforcement officials may be required to give Miranda warnings prior to questioning if the person being questioned is in “custody” and the official objectively “should have known” that his questions were “reasonably likely to evoke an incriminating response” (quoting Rhode Island v. Innis, 446 U.S. 291, 302 (1980) (emphasis removed))).

         First, as previously explained with regards to the “custody” inquiry, I must assess whether there was a “change in the surroundings of [Mr. Con-ui] which result[ed] in an added imposition on his freedom of movement.” Burkholder, 116 Fed.Appx. at 361 (quoting United States v. Conley, 779 F.2d 970, 973 (4th Cir. 1985)). As explained by the Third Circuit, “[s]uch a change in surroundings could include the imposition of handcuffs or being taken to a locked room to be questioned by correctional officers.” Id. (citing Conley, 779 F.2d at 970). Courts employ a totality of the circumstances approach and consider “whether the circumstances suggest any measure of compulsion above and beyond confinement.” Bruce v. United States, 439 F.Supp.2d 364, 371 (M.D. Pa. 2006) (citation omitted). At bottom, “[a]n inmate who is removed from the general prison population for questioning and is ‘thereafter . . . subjected to treatment' in connection with the interrogation ‘that renders him “in custody” for practical purposes . . . will be entitled to the full panoply of protections prescribed by Miranda.'” Howes v. Fields, 565 U.S. 499, 514 (2012) (quoting Berkemer v. McCarty, 468 U.S. 420, 440 (1984)).

         Upon examining the totality of the circumstances, I find that Mr. Con-ui was in “custody” for the purposes of Miranda during the evaluation conducted by Dr. Mitchell. While “imprisonment alone is not enough to create a custodial situation within the meaning of Miranda, ” Howes, 565 U.S. at 511, the circumstances surrounding Dr. Mitchell's interview of Mr. Con-ui rendered him in “custody” for practical purposes in the prison context.

         First, Mr. Con-ui was interviewed in an observation cell at USP Allenwood where he had been placed less than forty-eight hours earlier after being transferred from USP Canaan. Thus, Mr. Con-ui was not merely subjected to the “ordinary restrictions of prison life, ” but instead was questioned in a new and unfamiliar environment after having been “yanked” from his familiar setting at USP Canaan. See Howes, 565 U.S. at 511.

         Second, Mr. Con-ui's movements were restricted by ambulatory restraints, which Dr. Mitchell described as “a belly chain around [Mr. Con-ui's] waist that was connected to hand restraints as well.” (T.R. 149:6-7). Accordingly, Mr. Con-ui was undoubtedly physically restrained in a manner greater than ...


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