USA v. Thomas Ray
OPINION filed : AFFIRMED, decision not for publication. Alice M. Batchelder, Circuit Judge AUTHORING; Karen Nelson Moore, Circuit Judge and John M. Rogers, Circuit Judge.
NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0078n.06
Feb 04, 2016
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
THOMAS E. RAY,
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF KENTUCKY
BATCHELDER, MOORE, and ROGERS, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge.
Thomas Ray tried to blackmail the
University of Louisville by sending emails under the false name “Melinda White” to two senior
officials in the school’s athletics department. “Ms. White” claimed to have in her possession
video evidence showing one of the starting players on the University’s men’s basketball team
agreeing to participate in an illegal point-spread scheme. The email offered to keep the matter
hushed up in exchange for $3.5 million.
The FBI traced the emails to a home in Jackson, Mississippi, where Ray lived. Law
enforcement obtained and executed a search warrant. In order to “secur[e] the scene,” the
officers conducting the search handcuffed Ray and put him in the back of a patrol car, but told
him that they were not arresting him. They searched Ray’s bedroom and found a pair of laptops
that had accessed the Melinda White email account as well as an index card with the Melinda
United States v. Ray
White email address and password. The emails themselves, however, were not found on either
At some point during the search, the officers advised Ray of his Miranda rights, and he
immediately asked for an attorney. The officers did not question him, and they eventually
removed the handcuffs. They then “allowed [him] to sit on the front porch of his home while
Agents completed the search.” One of the officers, accompanied by an FBI agent, approached
Ray and introduced himself as a Louisville police officer; he told Ray that the officers were there
to investigate the Melinda White emails and that the search had revealed the incriminating index
card in Ray’s room. The officer explained that Ray would not be going to jail that day but that it
was “very possible that [he] might in the future.” “RAY still did not wish to speak with Agents
but he began to sweat profusely and rub his legs rapidly. As [the agents] walked away from
RAY, RAY stated ‘I didn’t hurt anybody.’”
A federal grand jury indicted Ray for violating 18 U.S.C § 875(d), which criminalizes
knowingly transmitting in interstate commerce an email with the intent to extort. Before the
trial, Ray moved to suppress both his nervous physical reaction and his utterance “I didn’t hurt
anybody,” contending that these had been obtained in violation of his Sixth Amendment right to
counsel. The district court denied the motion, and the evidence was admitted at trial. At the
close of proof, Ray’s attorney renewed his motion to suppress. The court again denied the
motion, explaining that “[i]t got real close . . . to being that [the police] intended to elicit a
response, but I’m going to overrule that renewed motion and the record will stand.”
The jury found Ray guilty, and the district court sentenced him to two years of
imprisonment and one year of supervised release. Ray filed this timely appeal. He contends that
the police violated both his Fifth and Sixth Amendment rights and that the district court should
United States v. Ray
have suppressed the evidence of his nervous physical reaction and his utterance “I didn’t hurt
anybody.” We affirm.
Ray’s Sixth Amendment argument fails because that amendment applies only after the
initiation of adversarial judicial proceedings. See McNeil v. Wisconsin, 501 U.S. 171, 175
(1991). There is no merit to Ray’s contention that such proceedings began with the issuance of
the search warrant and the officers’ focus on him during the investigation. See United States v.
Myers, 123 F.3d 350, 359 (6th Cir. 1997) (collecting cases); see also United States v. Ortkiese,
208 F. App’x 436, 440 (6th Cir. 2006).
The question is closer with regard to the Fifth Amendment. Unfortunately for Ray, the
relevant portions of both his motion to suppress and his renewed motion at trial invoked only the
Sixth Amendment, and we review for plain error “new suppression arguments raised for the first
time on appeal after a defendant’s original suppression arguments proved unsuccessful at the
trial court level.” United States v. Lopez-Medina, 461 F.3d 724, 739 (6th Cir. 2006). “The plain
error doctrine is to be used only in exceptional circumstances to avoid a miscarriage of justice.”
Id. “An error is plain when it is obvious, affects substantial rights, and seriously affects the
fairness or integrity of judicial proceedings.” Id.
Because he invoked his right to counsel, Ray was entitled to suppression of any
(1)statement, Pennsylvania v. Muniz, 496 U.S. 582, 589 (1990), (2) made while in custody,
United States v. Salvo, 133 F.3d 943, 948 (6th Cir. 1998), and (3) in response to interrogation,
Rhode Island v. Innis, 446 U.S. 291, 300–02 (1980).
The Fifth Amendment privilege against self-incrimination “protects an
accused only from being compelled to testify against himself, or otherwise provide the State with
evidence of a testimonial or communicative nature.” Muniz, 496 U.S. at 589 (quoting Schmerber
United States v. Ray
v. California, 384 U.S. 757, 761 (1966)).
“[I]n order to be testimonial, an accused’s
communication must itself, explicitly or implicitly, relate a factual assertion or disclose
information.” Doe v. United States, 487 U.S. 201, 210 (1988). Thus, Ray’s nervous physical
reaction was not a “statement” protected by the Fifth Amendment, see United States v. VelardeGomez, 269 F.3d 1023, 1030 (9th Cir. 2001) (en banc), but the utterance “I didn’t hurt anybody”
was, see Doe, 487 U.S. at 210.
Custody. In determining whether someone was in custody, “the only relevant inquiry is
how a reasonable man in the suspect’s position would have understood his situation.” Berkemer
v. McCarty, 468 U.S. 420, 442 (1984). We have highlighted four factors that are relevant to this
analysis: “(1) the purpose of the questioning; (2) whether the place of the questioning was hostile
or coercive; (3) the length of the questioning; and (4) other indicia of custody.” Salvo, 133 F.3d
at 950. The “other indicia” of custody include
whether the suspect was informed at the time that the questioning was voluntary
or that the suspect was free to leave or to request the officers to do so; whether the
suspect possessed unrestrained freedom of movement during questioning; and
whether the suspect initiated contact with the police or voluntarily admitted the
officers to the residence and acquiesced to their requests to answer some
Id. Some of these factors weigh in the government’s favor: the interaction was very brief and
occurred on the front porch of Ray’s mother’s house, which is not an inherently coercive space.
The officer, moreover, was not “questioning” Ray in the usual sense, but was explaining who he
was, what the search had revealed, and the possible consequences for Ray.
On the other hand, Ray may have felt significant pressure to remain where he was. The
officers had only recently released him from handcuffs and had merely “allowed” him to sit on
the front porch. And though he was not “questioned,” the context does indicate a significant
level of pressure in the interaction similar to questioning. As the officer admitted at trial, “if [my
United States v. Ray
statements] were to elicit a response, that would benefit me.” This would be a closer question if
Ray had preserved it for appeal. But we are reviewing the Fifth Amendment argument for plain
error, and the error, if any, was not obvious.
Interrogation. The interaction, moreover, was not obviously “interrogation” either. As
we have explained, “[a]n accurate statement made by an officer to an individual in custody
concerning the nature of the charges to be brought against the individual cannot reasonably be
expected to elicit an incriminating response.” United States v. Collins, 683 F.3d 697, 703 (6th
Ray has failed to show plain error. And as mentioned above there is no merit in Ray’s
Sixth Amendment argument. We therefore affirm.
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