Micky Rife Motion To Suppress

Case: 3:19-cr-00010-GFVT-EBA Doc #: 45 Filed: 06/12/19 Page: 1 of 20 - Page ID#: 277
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT FRANKFORT
ELECTRONICALLY FILED
CRIMINAL ACTION NO. 3:19-10-GFVT-MAS
UNITED STATES OF AMERICA )

)
PLAINTIFF )
) DEFENDANT’S MOTION TO
v. ) SUPPRESS
)
MICKY RIFE )
)
DEFENDANT )
Comes the Defendant, Micky Rife, by counsel, and moves the Court to suppress
statements made by him to law enforcement on January 24, 2019. As grounds for the
motion, Mr. Rife states as follows:
FACTUAL BACKGROUND
As alleged in the Criminal Complaint filed against Mr. Rife on January 24, 2019,
Mr. Rife resided in Phnom Penh, Cambodia from September 2012 until December 2018.
DE 1-1, ¶ 6. The Complaint describes the initial allegations against Mr. Rife that were
reported to Department of Homeland Security, Homeland Security Investigations (“HSI”)
in February 2018. The Complaint alleges that HSI’s investigation included interviews with
Mr. Rife’s employers at a school in Cambodia. It further alleges that Mr. Rife’s
employment was terminated on December 5, 2018 due to the investigation. DE 1-1, ¶
19. Following his termination, Mr. Rife returned to the United States on December 9,
2018. He reentered the U.S. in Chicago, where he was subjected to secondary inspection
by Customs and Border Patrol officers at the request of SA Romagnoli. Based on

discovery provided by the Government, the inspection included examination of Mr. Rife’s
phone, computer, notebook and travel documents, with copying of certain items. Exh. 1
[ROI 4]. Mr. Rife was asked why he left Cambodia. He told the officer that he would likely
stay with his mother in Elizabethtown, Kentucky, or his brother in Owensboro, Kentucky.
Id. He was not asked about his driver’s license.
SA Romagnoli is an HSI agent. He allegedly began his part in the investigation in
May 2018 upon referral by HSI Phnom Penh due to Mr. Rife’s prior residency in Kentucky.
The Government claims in documents produced in discovery that as part of the
investigation into Mr. Rife, his father was interviewed on June 27, 2018 in Magoffin County
by SA Romagnoli and KSP Sergeant Hazelett. Exh. 2 [ROI 2]. On December 14, 2018,
the two officers interviewed Mr. Rife’s mother, Robin Hays, at her residence in
Elizabethtown. Exh. 3 [ROI 5]. They inquired into his whereabouts and indicated to her
that they needed to discuss Mr. Rife’s driver’s license which had been renewed while Mr.
Rife was in Cambodia apparently by his twin brother, Ricky. Id. Ms. Hays was told by
the agents that the license issue arose when Mr. Rife crossed the border.
Mr. Rife and Ms. Hays were told that Mr. Rife could not renew his license without
first speaking to SA Romagnoli in Frankfort. They were told that if he tried to renew in
Hardin County that the agents would block the renewal in Frankfort until he agreed to
speak with them. He could not drive or work without his driver’s license.
On January 31, 2019, the Magistrate Judge in this matter held a preliminary
hearing following the filing of the Complaint.1 The day before this hearing, Mr. Rife was
provided with copies of several ROIs, including those identified above. On the morning
1 A Transcript of the Preliminary Hearing is at Docket Entry 33.
2
of the hearing, counsel was provided with a disc containing a recording between SA
Romagnoli, KSP Detective Anthony Gatson, and Mr. Rife from January 24, 2019. The
disc was accompanied by ROI 7, a narrative report of an unrecorded interview with Mr.
Rife that occurred prior to the recorded interview. Exh. 4 [ROI 7]. During the Preliminary
Hearing, AUSA Marye stated that this copy of ROI 7 was a “draft.” DE 33, Page ID # 28.
A “final” ROI concerning this interview has not been produced.
Mr. Rife met with SA Romagnoli on January 24, 2019. ROI 7 (hereinafter, the
“Report”) “details the interview of Micky RIFE at the KSP Records and Technology Center
in Frankfort, KY.” The Report states that Mr. Rife arrived at the Center, which is located
adjacent to KSP Post 12, with his mother “in response to SA Romagnoli and Det. Hazelett
visiting [Mr. Rife’s mother] at her address and advising her of an issue with the renewal
of [his] license . . . .” Exh. 4, p. 1. The Report states that the meeting occurred in the law
library in the building. Id. It states that Mr. Rife sat closest to the door at a table in the
center of the room with SA Romagnoli sitting next to him and Det. Gatson sitting in the
chair farthest from the door. Id. Mr. Rife describes it differently—he was at the opposite
end of the table farthest from the door, seated between SA Romagnoli and Det. Gatson,
with one of the two between Mr. Rife and the door.
According to Ms. Hays, Mr. Rife appeared worried, was not talkative, and would
not eat during the trip to Frankfort and prior to the interrogation. She described the KSP
office as a secured location where access was controlled both for people coming in and
those going out and visitors had to be escorted, even to the restroom. Mr. Rife was
escorted into the secure portion of the office by the agents.
3
The Report describes the development of the encounter. It purportedly started
with inquiries regarding the driver’s license issue and background inquiries regarding Mr.
Rife’s residence and contact information. Early in the Report, however, inquiries were
noted regarding Mr. Rife’s use of email and social media. Id. He was asked about travel
to southeast Asian countries and Australia, and future plans to return to Cambodia. Id.,
pp. 1-2. Mr. Rife was asked about his family and details regarding the adoption of his
daughter in Cambodia. Id., p. 2. He was specifically asked if the adoption was “illegal.”
Id. He was asked very personal questions about his former wife’s reproductive health.
Id.
Mr. Rife was asked about renewing the driver’s license, and how his brother
appeared in the photo while Mr. Rife was in Cambodia. Id., p. 3. The Report states:
At this point RIFE was instructed that it was against the law
to lie to federal agents. SA Romagnoli provided RIFE with
his business card to ensure that RIFE realized that he was
speaking with a federal agent. SA Romagnoli told RIFE that
he was probably realizing that this interview was about
more than just his driver’s license. RIFE said he was
starting to realize that, and he agreed to be truthful and to
continue the interview.
Id. (emphasis added). Questions regarding his life in Cambodia continued, including his
relationship to witnesses identified in the investigation. Mr. Rife was asked specifically
about being disciplined at the school and the reason for his termination. Id., p. 3. He was
asked about inappropriate contact with girls at the school and reportedly stated he had
touched girls’ vaginas. He was asked about the number of girls, and details about how it
happened. He was asked if it was wrong, if he was sorry, and “how many girls he sexually
assaulted.” Id., p. 4.
4
The Report states that this portion of the statement started at approximately 2:30
p.m. and ended at roughly 3:40 p.m. It goes on to describe a brief pause between the
unrecorded and recorded portions of the interview. Id., p. 4. The Report states that “RIFE
was instructed that he had made some incriminating statements, and in order to continue
he would need to sign the rights waiver form. Det. Gatson activated the recorder and
read the waiver, which RIFE signed.” Id. The Report concedes that the recorded
interview “reviewed the questions that had already been discussed and asked details
about certain ones. RIFE was pressed on the details of the adoption, his sexual abuse
of the girls, and the identification of the victims.” Id.
The audio recording begins with Miranda warnings and discussion of the rights
waiver form.2 The agents acknowledged talking with Mr. Rife for an hour prior to the
recording starting. The recording is roughly 48 minutes in duration, ending at 4:38 p.m.
It covers the same topics noted in the Report, and makes several references to
statements that Mr. Rife said prior to the recording beginning.3
At no point during the recording or in the Report is Mr. Rife told that he can leave.
He was not advised that he did not have to continue answering questions or waive his
rights. Mr. Rife was not advised that statements made prior to being given Miranda
warnings would not be admissible. His mother was not permitted in the room. The library
is a windowless room. The officers took Mr. Rife’s passport. Ms. Hays recalls hearing a
2 The Recording of the second statement is found on a disc submitted to the Clerk as part of a Sealed
Notice of Conventional Filing. Exh. 5.
3 See, e.g., Exh. 5, Recording at 9:22 (“We discussed before that you touched some of the girls
inappropriately, is that correct?”); 9:58 (“And you said that you did this because you are a sex addict,
correct?”)
5
voice she believed was Mr. Rife’s yelling out something unintelligible at some point during
the interrogation.
At the Preliminary Hearing on January 31, 2019, SA Romagnoli testified about the
interview, as follows:
Q. And this meeting that you had with Mr. Rife, you – the plan all along
was to arrest him for this alleged crime, correct?
A. We had hoped to, yes. We didn’t know if he was going to show up.
We had talked to him for probably three weeks about him, you
know, showing up to meet us.
DE 33, Page ID # 30 (emphasis added).
Q. And certainly when he showed up to meet with you about the driver’s
license issue, you weren’t going to let him go at that point?
A. That’s – that is correct.
DE 33, Page ID # 32.
Q. But based on what I’ve read here in the ROI-7, he was questioned
pretty extensively about not only the driver’s license issue but his
alleged actions in Cambodia?
A. That’s correct.
Q. And he was questioned about that prior to being Mirandized, correct?
A. That’s correct, yes.
DE 33, Page ID # 32. SA Romagnoli understood that venue in this type of case depended
on where the defendant was arrested. Id., Page ID # 31. Mr. Rife was arrested at the
conclusion of the interview. Based on the facts presented above, suppression of Mr.
Rife’s statements made on January 24, 2019 is required.
ARGUMENT
6
The questioning of Mr. Rife on January 24, 2019 was unlawful and violated his
Fifth Amendment privilege against self-incrimination. His statements made to the officers
on January 24 both before and after Miranda warnings were given must be excluded.4
I. MR. RIFE WAS SUBJECTED TO CUSTODIAL INTERROGATION
Miranda warnings are required only when a defendant is in custody and being
interrogated. United States v. Swanson, 341 F.3d 524, 528 (6th Cir. 2003). Statements
made during custodial interrogation in violation of Miranda may not be admitted for certain
purposes in a criminal trial. Id. at 528.
A. Anyone in Mr. Rife’s position would reasonably believe they were not
free to leave the interrogation
Mr. Rife was in custody when the questioning occurred. In determining whether a
suspect is subjected to a custodial interrogation, “the only relevant inquiry is how a
reasonable man in the suspect's position would have understood his situation.” United
States v. Malcolm, 435 Fed. App’x 417, 420 (6th Cir. 2011). The custody determination
“depends on the objective circumstances of the interrogation, not on the subjective views
harbored by either the interrogating officers or the person being questioned.” Stansbury
v. California, 511 U.S. 318, 323 (1994). “[A]n officer's views concerning the nature of an
interrogation, or beliefs concerning the potential culpability of the individual being
questioned, may be one among many factors that bear upon the assessment whether
that individual was in custody, but only if the officer's views or beliefs were somehow
manifested to the individual under interrogation and would have affected how a
reasonable person in that position would perceive his or her freedom to leave.” Id. at 325
(emphasis added).
4 At minimum, the pre-warnings statement must be excluded.
7
Regarding custody, in Swanson, the Sixth Circuit set forth factors to consider in
determining whether the totality of the circumstances support that a suspect was in
custody, thereby requiring Miranda warnings. Swanson, 341 F.3d at 528. The “ultimate
inquiry” is whether there is a formal arrest or restraint on freedom of movement of the
degree associated with formal arrest. Id. at 529. The factors are (1) whether a reasonable
person in the defendant’s position would feel free to leave, (2) the purpose of the
questioning, (3) whether the place of the questioning was hostile or coercive, (4) the
length of the questioning, and (5) other indicia of custody such as whether the suspect
was told he was free to leave, could move freely during questioning, and whether the
defendant initiated the contact with police or agreed to answer some questions. Id.
Here, a person in Mr. Rife’s position would not reasonably believe they were free
to leave the KSP station on January 24, 2019. Mr. Rife was terminated from his teaching
position on December 5, 2018. The reason given was related to the alleged misconduct
that later formed the basis of the pending charge. Four days later, upon returning to the
United States, he was subjected to a border search where an agent examined and copied
parts of his phone, computer, notebook and travel documents. He was asked where he
would be staying, but not asked about his driver’s license. His parents, who live in
geographically separate parts of Kentucky were each interviewed concerning his
whereabouts, and (reasonably) communicated this to Mr. Rife. Mr. Rife would have
reasonably known that one of the people interviewing his mother and father was a federal
HSI agent. His mother, specifically, was interviewed within a few days of his return to the
United States, which Mr. Rife would reasonably have understood as evincing law
enforcement’s interest. Mr. Rife’s mother was informed that Mr. Rife was suspected of
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having falsely renewed his driver’s license. In the ensuing weeks, agents spoke to Mr.
Rife repeatedly about meeting to resolve the driver’s license issue. Mr. Rife knew that
the agents knew he was in Cambodia during the time that the driver’s license was
renewed and could not have lawfully renewed the license. He would know this action
exposed him and his brother to criminal prosecution. Again, SA Romagnoli, a federal
agent, was involved in investigating what Mr. Rife was told was a state driver’s license
issue. He was asked to travel to Frankfort from Elizabethtown to address this issue,
rather than reporting to the Hardin County Circuit Court Clerk or KSP Post 4, which is the
KSP post in Elizabethtown. SA Romagnoli told him he would not be able to drive, and
thus work, if he did not agree to come to Frankfort for questioning. The inability of Mr.
Rife to resolve the driver’s license issue added pressure on him by preventing him from
working. A person in Mr. Rife’s position would have reasonably understood the gravity of
a federal agent’s involvement in a state matter and the other circumstances leading up to
the interview. His mother described his demeanor on the trip to Frankfort, which was out
of scale to a driver’s license renewal issue.
With these facts in mind, Mr. Rife reasonably would not have felt free to leave the
interrogation (and in fact did not) at a critical point in the questioning prior to the Miranda
warnings. The pre-Miranda questioning went beyond biographical, probing into the
legality of the adoption of Mr. Rife’s daughter and his plans to reunite with his family. The
critical point in the questioning was when Mr. Rife was asked about falsely renewing his
driver’s license. He admitted to SA Romagnoli, a federal agent, that he and his brother
had committed a crime by using his twin to renew his license while abroad. SA Romagnoli
then told Mr. Rife it was a crime to lie to federal agents, that he and his brother would be
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prosecuted for multiple acts, and immediately told Mr. Rife that the questions were about
more than the driver’s license based on the questioning that occurred before. The Report
acknowledges that Mr. Rife understood the interview was about his actions in Cambodia.
Based on everything that occurred before, it is at this point that Mr. Rife would not
reasonably feel free to leave, particularly in view of the difficulty in leaving.
The purpose of the questions was clearly so that Mr. Rife would incriminate
himself. They were not seeking simple background information regarding Mr. Rife. He
is asked extensive questions about the allegations that led to his termination in Cambodia.
The agents knew of the prior investigation. A Complaint and arrest warrant were filed
based on those prior alleged acts. The agents acknowledged to Mr. Rife that he would
be arrested during the interview. Turning the subject of the questioning to the events in
Cambodia reasonably made it clear the purpose of the questioning and Mr. Rife’s inability
to leave. They had never spoken to him before about these topics but knew what areas
to pursue.
The location of the questioning was not per se coercive, based on prior precedent
concerning stationhouse questioning. However, Mr. Rife was questioned at a secure KSP
facility where both incoming and outgoing movement was controlled and escorts were
required. The room in which he was interrogated had only one exit and no windows. The
two agents interviewing him, who subjectively understood they would arrest him that day,
placed themselves on either side of Mr. Rife. Objectively, he would have felt intimidated
and restricted by the presence of the two agents in this space. No one in his position
would believe that asking the same agents to escort him from the building in order to
leave would actually result in him leaving, particularly given that the agents’ beliefs were
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manifested to him. The pre-Miranda questioning was apparently not recorded, despite
the Report having extensive details. From the post-Miranda recording, it is clear that the
agents aggressively questioned Mr. Rife about the alleged crimes. Ms. Hays recalled her
son yelling at one point. Additionally, the agents accused him of lying about various
details. Without a recording for the first portion of the interview, it would be impossible to
determine if the same tactics were used before the warnings were given, but it is
reasonable to assume the agents acted similarly.
The questioning took about two hours, which is not by itself indicative of coercive
questioning but when considered with the totality of circumstances constituted a
significant restraint upon him. There are other indicia of custody, however, including the
fact that the agents never told Mr. Rife he was free to leave at any point in the entire
interview and never said that he was not required to answer the questions. He was not
permitted to move around during the interview. While he agreed to answer questions the
authorities had about his driver’s license issue, he did not initiate this contact or agree to
discuss the reason he left Cambodia or the allegations made against him there. He was
told the questioning was required before the agents would permit him to renew his driver’s
license. SA Romagnoli told him twice that he would be arrested, making his subjective
views known to Mr. Rife. He threatened to prosecute Mr. Rife and his brother for the
driver’s license, a possible probation violation, and suspected child pornography. He told
Mr. Rife they could arrest his brother for these things. Importantly, this information
provided the bases upon which Mr. Rife would reasonably believe he was not free to
leave—following his admission to using his brother to falsely renew his license and at the
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moment when SA Romagnoli revealed that the purpose of the interview was to elicit
incriminating statements from Mr. Rife regarding his time in Cambodia.
B. The questioning was undoubtedly “interrogation”
Mr. Rife was “interrogated” within the meaning of Miranda and its progeny. “The
concern of the Court in Miranda was that the ‘interrogation environment’ created by the
interplay of interrogation and custody would ‘subjugate the individual to the will of his
examiner’ and thereby undermine the privilege against compulsory self-incrimination.”
Rhode Island v. Innis, 446 U.S. 291, 299 (1980). “‘[I]nterrogation’ under Miranda refers
not only to express questioning, but also to any words or actions on the part of the 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.” Id. at 301.
SA Romagnoli conceded at the Preliminary Hearing that Mr. Rife was expressly
questioned about the events in Cambodia that led to the pending charges prior to
administering Miranda warnings and waiving those rights. Additionally, his recitation of
the first half of Mr. Rife’s interview contained in the Report makes it clear that Mr. Rife
was expressly questioned about his actions in Cambodia for the purpose of Mr. Rife
incriminating himself. Mr. Rife was asked to provide details about the alleged crimes—
his work at the school, his access to children, the reason given for his termination, who
was involved, and where he allegedly touched students. He was asked to confess that
these alleged acts were wrong and to express remorse. Mr. Rife was asked about his
sexual proclivities. The questioning after the purported rights warning were of the same
kind, covering the same ground previously addressed to further incriminate Mr. Rife with
an audio record. Statements made prior to administration and voluntary waiver of
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Miranda rights are “‘irrebuttably presumed involuntary’ and must be suppressed.” United
States v. Pacheco-Lopez, 531 F.3d 420, 424 (6th Cir. 2008). In examining the Report,
the agents should have known questions regarding his alleged actions in Cambodia (and
the license renewal) were reasonably likely to elicit incriminating responses from Mr. Rife.
They knew that there was extensive investigation of Mr. Rife’s alleged actions in
Cambodia that led to his termination. Asking questions based on that investigation was
reasonably likely to elicit incriminating responses.
In addition to the express questioning, Mr. Rife was reasonably left with the belief
that he had to answer all of the agents’ questions in order to avoid committing a crime,
avoid arrest, and avoid prosecution of his brother. In the Report, after a period of
questioning, SA Romagnoli made a production of reintroducing himself to Mr. Rife,
presenting his business card identifying himself as a federal agent, and “instruct[ing Mr.
Rife] that it was against the law to lie to federal agents.” Mr. Rife was never told he did
not have to answer the questions or could leave. In the absence of complete Miranda
warnings, this statement was coercive because Mr. Rife reasonably believed that SA
Romagnoli’s statement meant that he could not avoid answering questions by leaving or
remaining silent. He made incriminating statements, as acknowledged by the agents in
the moments before Miranda warnings were given.
II. THE MIRANDA-IN-THE-MIDDLE WARNINGS WERE INEFFECTIVE
Based on the custodial interrogation of Mr. Rife, warning Mr. Rife of his rights in
the middle of the interrogation was insufficient to permit use of either the pre- or post-
Miranda statements made on January 24, 2019. In other words, the questioning violated
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his privilege against self-incrimination despite providing the Miranda warnings in the
middle of the interrogation.
Sometimes described as a question-first, warn-later strategy or a two-step
strategy, the intention is to reduce the effect of Miranda warnings. The Supreme Court
described the problem presented by Miranda-in-the-middle cases as follows: “The object
of question-first is to render Miranda warnings ineffective by waiting for a particularly
opportune time to give them, after the suspect has already confessed.” Missouri v.
Seibert, 542 U.S. 600, 611 (2004). In Seibert, the Court noted that “[u]pon hearing
warnings only in the aftermath of interrogation and just after making a confession, a
suspect would hardly think he had a genuine right to remain silent, let alone persist in so
believing once the police began to lead him over the same ground again.” Id. at 613. The
Seibert suspect's first, unwarned interrogation left “little, if anything, of incriminating
potential left unsaid,” making it “unnatural” not to “repeat at the second stage what had
been said before.” Id. at 616–17. In Seibert, the suspect made incriminating statements
after 30 minutes of questioning. Following a 20 minute coffee break, she was warned of
her rights and asked the same questions on tape recorder, ultimately confessing to the
crime. The Court agreed to suppress both the pre- and post-Miranda statements.
In Pacheco-Lopez, the Sixth Circuit discussed the state of analysis in Miranda-in-
the-middle cases, applying Seibert and another Supreme Court decision, Oregon v.
Elstad, 470 U.S. 298 (1985). Pacheco-Lopez, 531 F.3d at 427. The relevant factors
under Seibert to determine if midstream Miranda warnings are effective are: (1) the
completeness and detail involved in the first round of questioning; (2) the overlapping
content of the statements made before and after the warning; (3) the timing and setting
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of the interrogation; (4) the continuity of police personnel during the interrogations; and
(5) the degree to which the interrogator's questions treated the second round as
continuous with the first. Id. (citing Seibert, 542 U.S. at 615).
All of the factors favor suppression. Mr. Rife was questioned extensively regarding
his actions in Cambodia that form the basis of this alleged crime. He was asked specific
questions about his access to the alleged victims, his actions with them, and his view on
whether those actions were wrong. The first round of questioning included incriminating
statements by him regarding these acts. The level of detail is recounted in the Report
from SA Romagnoli. The questions before the warnings were given are the same as
those on the audio recording. The Report notes that “SA Romagnoli reviewed the
questions that had already been discussed and asked details about certain ones.” The
recording acknowledges that the agents had been talking to Mr. Rife about these issues
for almost an hour before turning on the recorder. Additionally, there are many portions
of the recording where references are made to statements made prior to the warnings
being given. The pre- and post-warning statements’ contents overlap and are duplicative.
The timing and setting also undermine the effectiveness of the warnings. In
Seibert, the suspect was given a 20 minute break between statements. In contrast, Mr.
Rife was given only a brief water break and went from an hour-long interrogation straight
into a recorded interrogation that last roughly 48 minutes. This timing underscores the
concerns in Seibert that with little left to say that might be incriminating, it would have
been unnatural for Mr. Rife not to answer the questions again despite the Miranda
warnings. There was no curative pause. A person in his position “would hardly think he
had a genuine right to remain silent, let alone persist in so believing once the police began
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to lead him over the same ground again.” Seibert, 542 U.S. at 613. SA Romagnoli and
KSP Detective Gatson stayed with Mr. Rife the entire time in the same location and
conducted both steps in the interrogation.
As to the fifth factor, references in the recorded portion show that the agents
viewed the second step as retracing the ground covered in the first, unwarned step. They
would ask leading questions based on and with reference to prior statements. The first
step flowed into the second step, which would reasonably lead Mr. Rife to believe there
was little point in asserting any rights that were explained to him. The second step was
“realistically . . . part[] of a single, unwarned sequence of questioning.” Pacheco-Lopez,
531 F.3d at 427. Plainly, the midstream Miranda warnings given here would not pass
muster under Seibert, and both pre- and post-warnings statements would be excluded.5
Id. Administering the warnings in this manner “deprive[d] [Mr. Rife] of knowledge
essential to his ability to understand the nature of his rights and the consequences of
abandoning them.” Seibert, 542 U.S. at 613-14.
Seibert was a plurality decision. Justice Kennedy’s concurrence has been
interpreted as establishing that the five-factor test discussed above applies when
objectively law enforcement deliberately seeks to evade Miranda. United States v.
Ashmore, 609 Fed. App’x 306, 316 (6th Cir. 2015); United States v. Wooten, 602 Fed.
App’x 267, 271 (6th Cir. 2015). “In determining whether law enforcement agents
deliberately employed the two-step interrogation tactic under this test, courts ‘consider
whether objective evidence and any available subjective evidence, such as an [agent's]
5 The Government bears the burden of demonstrating an effective waiver. North Carolina v. Butler,
441 U.S. 369, 373 (1979); United States v. Pacheco-Lopez, 531 F.3d 420, 428 (6th Cir. 2008).
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testimony, support an inference that the two-step interrogation procedure was used to
undermine the Miranda warning.’” Ashmore, 609 Fed. App’x at 318.
Here, SA Romagnoli admitted that Mr. Rife would be arrested at KSP prior to taking
any statement from him. He acknowledged that venue over the offense in question
depended on the place of arrest. 18 U.S.C. § 3238. An arrest warrant was approved and
executed on Mr. Rife on January 24, 2019. DE 9. The only purpose that could have
objectively been served by questioning him would be to gain incriminating statements
because the investigation in Cambodia had already led authorities to file the charges
against Mr. Rife. The Complaint in this case was filed on the same day as the
interrogation. DE 1-1. The interrogation ended at 4:38 p.m. and the Complaint was
acknowledged by the Court at approximately 5:21 p.m. DE 1-1, Page ID # 10. Thus,
there was nothing investigatory to add by conducting the interrogation apart from a
confession. SA Romagnoli has twenty-one years of experience in law enforcement with
KSP and HSI, and police training espouses deliberate use of the Miranda-in-the-middle
technique. See Seibert, 542 U.S. at 609. Notably, only the post-Miranda portion was
recorded, despite the availability of the same equipment and location to record both
statements.6 Objectively, this proves that the agents deliberately sought to undermine
Miranda warnings given during the interview. At no point was Mr. Rife advised that the
first statement would be inadmissible as evidence against him before the agents launched
into the second statement. See Ashmore, 609 Fed. App’x at 316 (additional warning
covering the inadmissibility of pre-Miranda statements could be construed as a curative
measure). Based on the circumstances presented here, the midstream Miranda method
6 SA Romagnoli acknowledged that ROIs are subject to revision that cannot be applied to an audio
record.
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was objectively used in a calculated way to gain incriminating statements to use against
Mr. Rife. Accordingly, the Seibert analysis applies here, and both statements must be
excluded.
Regardless of whether the court believes the agents acted deliberately, the
statements must be suppressed. In Pacheco-Lopez, the Court looked to Elstad assuming
for purposes of argument that the police did not act deliberately. Elstad looks to the
effectiveness of the midstream Miranda warning. It requires that “if [a suspect's] first
statement is shown to have been involuntary, the court must examine whether the taint
dissipated through the passing of time or a change in circumstances.” Pacheco-Lopez,
531 F.3d at 429. “When a prior statement is actually coerced, the time that passes
between confessions, the change in place of interrogations, and the change in identity of
the interrogators all bear on whether that coercion has carried over into the second
confession.” Elstad, 470 U.S. at 310.
Mr. Rife’s first statement to the agents was coerced. “An admission is deemed to
be coerced when the law enforcement officials’ conduct overbears the accused's will to
resist.” Ledbetter v. Edwards, 35 F.3d 1062, 1067 (6th Cir.1994). The Sixth Circuit has
established three requirements for “finding that a confession was involuntary due to police
coercion: (i) the police activity was objectively coercive; (ii) the coercion in question was
sufficient to overbear the defendant's will; and (iii) the alleged police misconduct was the
crucial motivating factor in the defendant's decision to offer the statement.” United States
v. Ray, 803 F.3d 244, 266–67 (6th Cir. 2015) (quoting United States v. Mahan, 190 F.3d
416, 422 (6th Cir.1999)). A “credible threat” against a defendant or his family is sufficient
for coercion. Id. Mr. Rife was interrogated at a KSP office in Frankfort rather than a local
18
295
Post. He was interrogated alone with two agents in a room without windows and was not
free to leave. He was threatened with prosecution including for falsely renewing his
driver’s license, and his brother was threatened with prosecution for false documents, a
probation violation, and child pornography charges. Mr. Rife was told he could not renew
his license, and thus pursue a job, without first speaking to the agents. Having recently
returned to the U.S., this ultimatum overbore his will and was coercive. Questions about
the legality of his daughter’s adoption threatened his family. The involvement of a federal
HSI agent in a local matter elevated the level of coercion and the circumstances overbore
Mr. Rife’s will regarding whether to discuss matters related to Cambodia. The agents’
actions were crucial in motivating him to give the first statement, particularly having been
threatened with additional charges for make a false statement to a federal agent. Under
the circumstances, it would be unreasonable to expect Mr. Rife to resist questioning when
SA Romagnoli turned the focus to his actions in Cambodia, knowing of the course of
events leading up to January 24, 2019.
Accordingly, under Elstad, the second, post-Miranda statement should be
suppressed because there was little to no time between the first and second statement
and the interrogation occurred in one combined episode in the same room at KSP with
the same agents. Thus, the coercion from the first statement carried over to the second
statement. The agents acted deliberately to blunt the Miranda warnings, but should the
court apply Elstad, the result is the same as under Seibert.
CONCLUSION
For the reasons stated above, the statements made by Mr. Rife on January 24,
2019 must be suppressed entirely as violative of the Fifth Amendment privilege against
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self-incrimination. At minimum, the Court should exclude Mr. Rife’s statements made
prior to the Miranda warnings.
GREEN CHESNUT & HUGHES, PLLC

Chase Tower
201 East Main Street, Suite 800
Lexington, KY 40507
Tel: (859) 475-1471
Fax: (859) 455-3332
BY: /s/ James M. Inman

JAMES M. INMAN
ATTORNEY FOR DEFENDANT,
MICKY RIFE
CERTIFICATE OF SERVICE
I hereby certify that on this day, Wednesday, June 12, 2019, I electronically filed
the foregoing with the clerk of the court by using the CM/ECF system, which will send an
electronic notice to all counsel of record in this matter.
/s/ James M. Inman

COUNSEL FOR DEFENDANT
20

Micky Rife Motion To Suppress

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Case: 3:19-cr-00010-GFVT-EBA Doc #: 45 Filed: 06/12/19 Page: 1 of 20 - Page ID#: 277

UNITED STATES DISTRICT COURT

CRIMINAL ACTION NO. 3:19-10-GFVT-MAS

UNITED STATES OF AMERICA )

motion, Mr. Rife states as follows:

reported to Department of Homeland Security, Homeland Security Investigations (“HSI”)

employment was terminated on December 5, 2018 due to the investigation. DE 1-1, ¶

by Customs and Border Patrol officers at the request of SA Romagnoli. Based on

Id. He was not asked about his driver’s license.

SA Romagnoli is an HSI agent. He allegedly began his part in the investigation in

The Government claims in documents produced in discovery that as part of the

1 A Transcript of the Preliminary Hearing is at Docket Entry 33.

A “final” ROI concerning this interview has not been produced.

escorted into the secure portion of the office by the agents.

The Report describes the development of the encounter. It purportedly started

of the girls, and the identification of the victims.” Id.

statements that Mr. Rife said prior to the recording beginning.3

DE 33, Page ID # 30 (emphasis added).

A. That’s – that is correct.

DE 33, Page ID # 32.

Q. And he was questioned about that prior to being Mirandized, correct?

A. That’s correct, yes.

Rife’s statements made on January 24, 2019 is required.

I. MR. RIFE WAS SUBJECTED TO CUSTODIAL INTERROGATION

purposes in a criminal trial. Id. at 528.

suspect is subjected to a custodial interrogation, “the only relevant inquiry is how a

interrogation, or beliefs concerning the potential culpability of the individual being

4 At minimum, the pre-warnings statement must be excluded.

inquiry” is whether there is a formal arrest or restraint on freedom of movement of the

geographically separate parts of Kentucky were each interviewed concerning his

of scale to a driver’s license renewal issue.

reasonably feel free to leave, particularly in view of the difficulty in leaving.

reasonable to assume the agents acted similarly.

questioning but when considered with the totality of circumstances constituted a

incriminating statements from Mr. Rife regarding his time in Cambodia.

B. The questioning was undoubtedly “interrogation”

examiner’ and thereby undermine the privilege against compulsory self-incrimination.”

an audio record. Statements made prior to administration and voluntary waiver of

reasonably likely to elicit incriminating responses.

questioning, SA Romagnoli made a production of reintroducing himself to Mr. Rife,

remaining silent. He made incriminating statements, as acknowledged by the agents in

the moments before Miranda warnings were given.

II. THE MIRANDA-IN-THE-MIDDLE WARNINGS WERE INEFFECTIVE

middle of the interrogation.

Sometimes described as a question-first, warn-later strategy or a two-step

described the problem presented by Miranda-in-the-middle cases as follows: “The object

of question-first is to render Miranda warnings ineffective by waiting for a particularly

Seibert suspect's first, unwarned interrogation left “little, if anything, of incriminating

In Pacheco-Lopez, the Sixth Circuit discussed the state of analysis in Miranda-in-

conducted both steps in the interrogation.

“realistically . . . part[] of a single, unwarned sequence of questioning.” Pacheco-Lopez,

abandoning them.” Seibert, 542 U.S. at 613-14.

Seibert was a plurality decision. Justice Kennedy’s concurrence has been

objectively law enforcement deliberately seeks to evade Miranda. United States v.

undermine the Miranda warning.’” Ashmore, 609 Fed. App’x at 318.

objectively been served by questioning him would be to gain incriminating statements

confession. SA Romagnoli has twenty-one years of experience in law enforcement with

covering the inadmissibility of pre-Miranda statements could be construed as a curative

statements must be suppressed. In Pacheco-Lopez, the Court looked to Elstad assuming

dissipated through the passing of time or a change in circumstances.” Pacheco-Lopez,

confession.” Elstad, 470 U.S. at 310.

events leading up to January 24, 2019.

Accordingly, under Elstad, the second, post-Miranda statement should be