United States v. Bryan

1

UNITED STATES OF AMERICA v. JOSHUA DRUID BRYAN AND REGAN EMILY BRYAN

Criminal No. 3:21-CR-17-DPJ-LGI

United States District Court, S.D. Mississippi, Northern Division

November 29, 2023

ORDER

DANIEL P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE.

This criminal case is before the Court on the Government's motion in limine to admit evidence [120] and Defendant Regan Emily Bryan's motion to suppress that same evidence [124]. The Government also seeks a ruling on portions of Regan's interviews that might raise Bruton issues for Co-Defendant Joshua Bryan. That portion of the motion is taken under advisement. Otherwise, the Government's motion is granted; Regan Bryan's motion is denied. Regan's motions for extensions [121, 122, 123] are granted.

I. Background

Regan Bryan and her brother Joshua Bryan face three charges related to an alleged murder-for-hire plot. See Superseding Indictment [104]. The Government claims that after receiving a tip that Defendants planned to kill their stepfather (EH) agents from Alcohol, Tobacco, Firearms, and Explosives (ATF) used an undercover agent and a cooperating witness to arrange a fake hit. On January 8, 2021, the agents faked the murder and arrested Regan and Joshua. Regan was well advised of her Miranda rights-including the right to counsel-and signed a waiver. But she says the agents continued questioning her when she later invoked the right to counsel. Def.'s Mot. [124] at 1.

II. Standards

The Government filed a permissive motion in limine seeking to admit Regan's recorded interview. “It is well-established that motions in limine may be used to secure a pretrial ruling that certain evidence is admissible.” Bond Pharmacy, Inc. v. AnazaoHealth Corp., No. 3:11-CV-58-CWR-FKB, 2012 WL 3052902, at *2 (S.D.Miss. July 25, 2012). An order granting a motion in limine does not preclude the losing party from revisiting the issue at trial, outside the jury's presence. See El-Bawab v. Jackson State Univ., No. 3:15-CV-733-DPJ-FKB, 2018 WL 3715836, at *2 n.1 (S.D.Miss. Aug. 3, 2018).

Regan's motion seeks to suppress evidence. “[O]n a motion to suppress, the defendant has the burden of proving, by a preponderance of the evidence, that the evidence in question was obtained in violation of [her] constitutional rights....There are situations, however, where the burden shifts to the government.” United States v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001) (citing United States v. Roch, 5 F.3d 894, 897 (5th Cir. 1993)). Relevant in this case, “if a defendant shows that a confession was obtained while he was under custodial interrogation, the government then has the burden of proving that the defendant voluntarily waived his privilege against self-incrimination.” United States v. de la Fuente, 548 F.2d 528, 533 (5th Cir. 1977).

As to Regan's motion, she requests an evidentiary hearing “[t]o the extent the Court determines there are any factual disputes raised by the government's response or the evidence.” Def.'s Mot. [124] at 4. “[A]n evidentiary hearing is required on a motion to suppress only when necessary to receive evidence on an issue of fact.” United States v. Harrelson, 705 F.2d 733, 737 (5th Cir. 1983). Such hearings are “designed for the presentation of evidence in support of factual allegations which, if proven, would justify the relief sought.” Id. at 738. Here, the parties base their motions on what happened during Regan's January 8, 2021 interview. That interview was videotaped and transcribed, and the Court has reviewed both. The video and transcript are the best evidence of what transpired, and Regan has identified no additional witnesses or evidence that might create a factual dispute. The Court therefore finds a hearing unnecessary.

III. Analysis

Regan says the federal agents violated her Fifth and Fourteenth Amendment rights when they continued the interrogation after she asked for an attorney. Def.'s Mot. [124] at 1.

In Miranda v. Arizona, 384 U.S. 436 . . . (1966), the Supreme Court determined that “the Fifth and Fourteenth Amendments' prohibition against compelled selfincrimination required that custodial interrogation be preceded by advice to the putative defendant that he has the right to remain silent and also the right to the presence of an attorney.” Edwards v. Arizona, 451 U.S. 477, 481-82 . . . (1981). “[I]f the accused indicates in any manner that he wishes to remain silent or to consult an attorney, interrogation must cease, and any statement obtained from him during interrogation thereafter may not be admitted against him at his trial.” Fare v. Michael C., 442 U.S. 707, 709 . . . (1979) (citing Miranda, 384 U.S. at 444-45 . . .). Not only must the current interrogation cease, but as the Supreme Court established in Edwards v. Arizona, law enforcement may not re-approach the suspect for further questioning until a lawyer has been made available. See Edwards, 451 U.S. at 484 . . . (“[A]n accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.”); see also McNeil v. Wisconsin, 501 U.S. 171, 176 . . . (1991) (describing Edwards as having “established a second layer of prophylaxis for the Miranda right to counsel”).

United States v. Wright, 777 F.3d 769, 773-74 (5th Cir. 2015).

“A suspect in custody may waive the effectuation of his Miranda rights if the statement was made ‘voluntarily, knowingly and intelligently.'” United States v. Fernandez, 48 F.4th 405, 411 (5th Cir. 2022) (quoting Miranda, 384 U.S. at 444). And “[i]n evaluating voluntariness, ‘the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect.'” Id. (quoting Oregon v. Elstad, 470 U.S. 298, 318 (1985)). “[A] statement is involuntary . . . if the tactics employed by law enforcement officials constitute a Fifth Amendment due process violation and are so offensive to a civilized system of justice that they must be condemned.” Id. (quoting United States v. Lim, 897 F.3d 673, 692 (5th Cir. 2018)).

There are two important limitations to these rights. First, “[i]n the context of invoking the Miranda right to counsel, . . . a suspect must do so ‘unambiguously.'” Berghuis v. Thompkins, 560 U.S. 370, 381 (2010) (quoting Davis v. United States, 512 U.S. 452, 459 (1994)). “[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, [the Supreme Court's] precedents do not require the cessation of questioning.” United States v. Carrillo, 660 F.3d 914, 922 (5th Cir. 2011) (quoting Davis, 512 U.S. at 459). Second, “an accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 923 (quoting Edwards, 451 U.S. at 484-85) (emphasis added).

In this case, the interviewing agents started a textbook interrogation. They told Regan from the beginning that she was arrested and that this was a custodial interview. They repeatedly advised her of her rights-including the right to counsel-and told her she could stop at any time or decline to answer anything that made her uncomfortable. They even stopped her from talking when she volunteered information before being Mirandized. They then read her her rights and had her sign and initial a waiver that acknowledged its voluntariness. During the questioning, they reminded Regan of her rights several times, gave her water, gave her tissues when she cried, kept their voices calm, and never touched or otherwise threatened her. It is also noteworthy that Regan holds a master's degree and stated a few times that she knew her rights and how things worked. Throughout the interview, Regan frequently stated that she wanted to talk to the agents. Her statements were voluntary.

Regan did, however, mention an attorney a few times and now says agents “ignored [her] request for counsel and continued their interrogation” on three occasions. Def.'s Mot. [124] at 2. In the first reference, Regan asked the agents,

If I get an attorney can I still help you all? Or is that like giving up, I don't want to . . .

....

[M]y mom said always have an attorney and I just, I don't know if she would tell me to right now.

....

And I don't, I don't, I'm not helping and I don't want ....

Tr. [126-1] at 167-68. As noted, “a suspect's ambiguous reference to counsel is not enough to trigger the requirement that police must immediately stop questioning the suspect.” Carrillo, 660 F.3d at 922-24 (holding that saying “I wish I had a lawyer right here” was insufficient). This passage is too ambiguous to stop the interrogation.

The second statement is more complicated. After around two hours of questioning, the agents offered a pretext, telling Regan that the “hitman” was saying it was a murder-for-hire plot (referring in reality to the undercover agent). Regan responded, “[I]f he's saying all that, yeah, I want an attorney.” Tr. [126-1] at 173. Had she stopped there, she would have a better argument. She didn't. Before the agents asked her anything else, she stated, “I don't want that, I want to help you.” Id. at 174.

Special Agent Parton nevertheless said, “[Y]ou [can] definitely have an attorney, but we want you to know one last thing.” Id. Regan interrupted, and the two spoke over each...