                                    PUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 17-4230


UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

             v.

NADER ABDALLAH,

                   Defendant - Appellant.


Appeal from the United States District Court for the Eastern District of Virginia, at
Newport News. Raymond A. Jackson, District Judge. (4:15-cr-00018-RAJ-LRL-3)


Argued: September 25, 2018                              Decided: December 18, 2018


Before GREGORY, Chief Judge, WYNN and HARRIS, Circuit Judges.


Reversed and remanded by published opinion. Judge Wynn wrote the opinion, in which
Chief Judge Gregory and Judge Harris joined.


ARGUED: Kim Michelle Crump, Norfolk, Virginia, for Appellant. Kevin Patrick
Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia,
for Appellee. ON BRIEF: Dana J. Boente, United States Attorney, Alexandria,
Virginia, Eric Hurt, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Newport News, Virginia, for Appellee.
WYNN, Circuit Judge:

      A jury convicted Defendant Nader Abdallah (“Defendant”) of several offenses

related to his alleged distribution of controlled substances. On appeal, Defendant raises

numerous grounds for setting aside his convictions.

      For reasons that follow, we conclude that the district court reversibly erred in

refusing to suppress inculpatory statements Defendant made during a custodial

interrogation. We further hold that the district court erred in failing to conduct an in

camera review of confidential law enforcement records requested by Defendant, when

Defendant established the confidential records plausibly contained materially favorable

information. Accordingly, we reverse and remand the case to the district court for further

proceedings consistent with this opinion.

                                            I.

                                            A.

      In June 2012, law enforcement officers began investigating the sale and

distribution of unlawful synthetic cannabinoids (known as “spice”) in Newport News,

Virginia and the surrounding area.      During the investigation, the officers received

complaints that spice was being sold at a local Red Barn gas station and convenience

store that was owned and operated by Defendant and his son. The officers conducted

multiple controlled purchases of spice at the Red Barn, the last of which occurred on

September 16, 2014.

      Two days after the last purchase, the officers executed a search warrant at the Red

Barn. Inside, they found and seized cardboard parcels filled with packages of spice; a

                                            2
digital scale; $109,308 in cash; and two keys. One of the keys opened a storage unit

containing more spice and the other key opened Defendant’s safe deposit box. After

obtaining another warrant, the officers seized an additional $701,450 in cash from the

safe deposit box.

       Thereafter, the United States Customs and Border Protection sent Defendant

notice that it had confiscated his property and that he could file an administrative petition

for its return. Defendant filed two sworn petitions to recover the two sums of cash that

had been confiscated from the Red Barn and the safe deposit box. Each petition stated: “I

maintain my earnings in cash form for religious reasons. I am a Muslim and I strictly

adhere to the tenets of my faith. One of these is the law against usury. I, therefore, do

not maintain a bank account and whenever possible keep my money in cash . . . and other

tangible forms that do not accrue interest.” J.A. 777–79. But Defendant had multiple

bank accounts and had conducted bank transactions on the same day.

       After the search, Defendant sold the Red Barn and bought another building at the

former Newport Video location.           Thereafter, Defendant’s son emailed Michael

McMahon—the owner of a spice distribution company—and informed McMahon that he

and Defendant wanted to use the Newport Video location to sell spice wholesale. The

officers intercepted these emails and began to track the location’s packages. On April 20,

2015, the officers executed a search warrant at the Newport Video location, during which

they found additional spice, a revolver, crack cocaine, drug paraphernalia, and $10,000.




                                             3
                                            B.

       Five days before the Newport Video search, a federal grand jury returned its first

indictment against Defendant and, that same day, a federal court issued an arrest warrant

for Defendant. The officers arrested Defendant at the Newport Video location and took

him to the Newport News Police Headquarters for interrogation.

       Three officers were present for Defendant’s interrogation: (1) Special Agent Lewis

of the Department of Homeland Security, (2) Inspector Sylvester of the United States

Postal Inspection Service, and (3) Detective Calhoon of the Newport News Police

Department. Special Agent Lewis and Inspector Sylvester later recounted Defendant’s

interrogation during a suppression hearing before the United States District Court for the

Eastern District of Virginia. Defendant exercised his right not to testify, and the district

court ultimately adopted the officers’ recitation of events. See United States v. Abdallah,

196 F.Supp.3d 599 (E.D. Va. 2016).

       The officers chose not to record the interrogation. Instead, Inspector Sylvester

took notes and Detective Calhoon observed while Special Agent Lewis interrogated

Defendant. According to the officers, Special Agent Lewis started the interrogation by

reading   Defendant    his   Miranda    rights.     Defendant     purportedly   interrupted

“approximately halfway” through to inform the officers that he “wasn’t going to say

anything at all.” J.A. 79; see also Abdallah, 196 F.Supp.3d at 600. Agent Lewis

responded by stating, “Well, just let me finish your Warning first.” J.A. 79. Immediately

after the warning, Agent Lewis asked, “Do you even know why you’re under arrest[?]”

Defendant responded, “No, tell me.” J.A. 79. Agent Lewis then repeated the Miranda

                                             4
warning.   This time, Defendant did not interrupt, and Defendant indicated that he

understood his rights. Defendant subsequently made multiple inculpatory statements.

       The officers also described Defendant’s demeanor during the interrogation. Both

Special Agent Lewis and Inspector Sylvester testified that Defendant was “lucid,” “very

upbeat, jovial, [and] very animated.” J.A. 79, 112, 127. During cross-examination,

Agent Lewis agreed with defense counsel that Defendant was “very cooperative,” not

difficult, “very forthcoming,” and was not “the type of person that had an attitude.” J.A.

96–97. Finally, Agent Lewis acknowledged that Defendant’s demeanor “[s]urprisingly”

did not “change at all during the course of the interview.” J.A. 82.

                                            C.

       On April 1, 2016, Defendant filed a motion to suppress all statements made during

his custodial interrogation. Defendant first argued that by stating that he “was not going

to say anything at all,” he unambiguously requested to remain silent.        Because the

officers failed to scrupulously honor Defendant’s request, Defendant maintained his

statements were inadmissible. The district court denied Defendant’s suppression motion,

finding his invocation to be “ambiguous, especially given the fact that he voluntarily

waived his Miranda rights minutes later once informed of the charges against him and the

subject of the interrogation.” Abdallah, 196 F.Supp.3d at 604.

       Defendant also sought suppression because “it is not clear what if any Miranda

warnings were given.”      J.A. 46.   Defendant noted the officers did not record the

interrogation and only Inspector Sylvester took notes. Inspector Sylvester’s handwritten

notes first state, “Miranda from DHS form-understood,” and, on the next line, Defendant

                                             5
was “Not going to say anything at all.” J.A. 154. Inspector Sylvester’s contemporaneous

notes nowhere suggest that Defendant interrupted his Miranda warnings.

       After the interrogation, Agent Lewis drafted a report from his memory. Agent

Lewis emailed that draft to Detective Calhoon and Inspector Sylvester, which prompted

“some modifications.” J.A. 92. Eight days after the interrogation, Agent Lewis issued a

final typewritten report indicating that Defendant interjected halfway through the first set

of Miranda warnings.         Claiming inconsistencies between Inspector Sylvester’s

contemporaneous notes and the final report, Defendant requested production of the

officers’ emails pertaining to the drafting of the report.      The district court denied

Defendant’s production request, relying on Agent Lewis’s representation that he had not

removed a request for counsel or a request to remain silent.

       On October 2, 2016, Defendant moved for the district court to reconsider his

motions requesting production of the drafting exchange and for suppression of his

statement. In support, Defendant asserted that, after reviewing a copy of Agent Lewis’s

grand jury testimony, Defendant found what he considered to be additional

inconsistencies among Agent Lewis’s grand jury testimony, his suppression hearing

testimony, and the final report.

       In particular, during the suppression hearing, Agent Lewis testified that he did not

obtain a written Miranda waiver from Defendant because he did not want to “interrupt

the flow” of the interrogation. J.A. 101–02. Agent Lewis also testified that Defendant

was “moving a mile a minute” and he “did not want to stifle the statements that

[Defendant] was making.” J.A. 101–02. By contrast, Agent Lewis testified to the grand

                                             6
jury that Defendant had waived his Miranda rights “both orally and in writing” prior to

the interrogation.   J.A. 1256.   Furthermore, Agent Lewis told the grand jury that

Defendant “started off slow” after receiving the Miranda warning—contrary to Agent

Lewis’s suppression hearing testimony that Defendant was “moving a mile a minute.”

J.A. 1264. Finally, Agent Lewis did not testify before the grand jury that Defendant

interrupted his Miranda warnings to say he “wasn’t going to say anything at all.” On

March 16, 2017, the district court again denied Defendant’s production and suppression

motions.

                                           D.

      Beginning October 4, 2016, Defendant was tried by jury before the district court.

During Defendant’s trial, the government introduced much of Defendant’s confession

through Inspector Sylvester’s testimony. For example, Inspector Sylvester informed the

jury that Defendant had provided a detailed explanation of his spice distribution

relationship with McMahon. Defendant also told the officers that he sold spice to “pretty

much everybody” and had sold approximately 10,000 grams of spice. When asked about

the crack cocaine and paraphernalia found during the Newport Video search, Defendant

admitted that he used crack cocaine and had smoked crack cocaine two days prior.

Defendant also stated that he would give prostitutes crack cocaine as a “bonus.”

Regarding the safe deposit box, Defendant told the officers that he had a second safe

deposit box that the officers were “too late” to seize. From that box, Defendant escaped

with $150,000.       Finally, Inspector Sylvester testified that Defendant “said his

understanding was that [spice] was illegal under federal law.” J.A. 343. Relying on that

                                           7
statement in Defendant’s confession, the government emphasized during closing

arguments that Defendant “told agents [spice] was illegal.” J.A. 1148.

       After twelve days of trial, the jury convicted Defendant of (1) one count of

conspiring to distribute Schedule I controlled substances and controlled substance

analogues (i.e., spice), in violation of 21 U.S.C. § 846; (2) one count of possessing a

Schedule I controlled substance (i.e., spice) with intent to distribute, in violation of 18

U.S.C. §§ 841(a)(1) and 841(b)(1)(C); (3) one count of distributing and possessing with

intent to distribute a Schedule II controlled substance (i.e., crack cocaine), in violation of

21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and 18 U.S.C. § 2; and (4) two counts of

making false statements to the federal government (i.e., one count for each of his sworn

petitions to Customs), in violation of 18 U.S.C. § 1001(a)(3).

       Defendant timely appealed.

                                             II.

       On appeal, Defendant first argues that the officers violated his Fifth Amendment

rights when the officers continued to question him after he unambiguously invoked his

right to remain silent and therefore that the district court erred by failing to suppress the

statements Defendant made in response to those questions. “We review the factual

findings underlying a motion to suppress for clear error and the district court’s legal

determinations de novo. When a suppression motion has been denied, this Court reviews

the evidence in the light most favorable to the government.” United States v. Hashime,

734 F.3d 278, 282 (4th Cir. 2013) (citation omitted).            On review, we agree with

Defendant. Because law enforcement officers failed to scrupulously honor Defendant’s

                                              8
unequivocal invocation of the right to remain silent, the district court erred by failing to

grant Defendant’s motions to suppress and reconsider suppression.

                                             A.

       The Fifth Amendment of the United States Constitution provides: “[n]o person . . .

shall be compelled in any criminal case to be a witness against himself[.]” U.S. Const.

amend. V. To protect this constitutional right against self-incrimination, the Supreme

Court’s landmark decision in Miranda v. Arizona established certain “procedural

safeguards” that officers must comply with to subject a suspect to custodial interrogation.

384 U.S. 436, 478–79 (1966). First, suspects must be informed of their “right to remain

silent” and their “right to the presence of an attorney.” Id. at 444. If a suspect “indicates

in any manner, at any time prior to or during questioning, that he wishes to remain silent,

the interrogation must cease.” Id. at 473–74 (emphases added). Similarly, if a suspect

“states that he wants an attorney, the interrogation must cease until an attorney is

present.” Id. at 474. Thus, by invoking either the right to remain silent or the right to

counsel, a suspect has the “right to cut off questioning” and officers must cease

questioning the suspect. Id.

       To invoke the right to remain silent or the right to counsel and thereby cut off

questioning, the suspect’s invocation must be “unambiguous.” Berghuis v. Thompkins,

560 U.S. 370, 381–82 (2010) (request to remain silent); Davis v. United States, 512 U.S.

452, 459 (1994) (request for counsel).            An invocation is unambiguous when a

“reasonable police officer under the circumstances would have understood” the suspect

intended to invoke his Fifth Amendment rights. Tice v. Johnson, 647 F.3d 87, 107 (4th

                                             9
Cir. 2011); Davis, 512 U.S. at 459. Accordingly, “a suspect need not speak with the

discrimination of an Oxford don” to invoke his Fifth Amendment rights. Davis, 512 U.S.

at 459; see also Emspak v. United States, 349 U.S. 190, 194 (1955) (explaining that “no

ritualistic formula or talismanic phrase is essential in order to invoke” Fifth Amendment

rights). This objective inquiry “‘avoids difficulties of proof and . . . provide[s] guidance

to officers’ on how to proceed in the face of ambiguity.” Thompkins, 560 U.S. at 381–82

(citing Davis, 512 U.S. at 458–59).

       In its suppression memorandum, the district court found that “Defendant

interrupted Agent [Lewis’s Miranda warnings] and stated that he ‘wasn’t going to say

anything at all.’” Abdallah, 196 F.Supp.3d at 600 (emphasis added). Numerous courts—

including this Court—have held that materially indistinguishable statements amount to an

unambiguous invocation of Fifth Amendment rights. For example, in Tice v. Johnson,

this Court took the position, in a habeas case, that when a defendant told interrogators, “I

have decided not to say any more,” he unambiguously invoked his right to remain silent.

Tice, 647 F.3d at 107 (“I have decided not to say any more.”); see also Jones v.

Harrington, 829 F.3d 1128, 1140 (9th Cir. 2016) (“I don’t want to talk no more”); United

States v. McCarthy, 382 F. App’x 789, 791–92 (10th Cir. 2010) (“I don’t want nothing to

say to anyone.”); McGraw v. Holland, 257 F.3d 513, 515, 518 (6th Cir. 2001) (“I don’t

wanna talk about it.”); Arnold v. Runnels, 421 F.3d 859, 865 (9th Cir. 2005) (“[T]he

Supreme Court [never] has required that a suspect seeking to invoke his right to silence to

provide any statement more explicit or more technically-worded than ‘I have nothing to



                                            10
say.’”); United States v. Reid, 211 F.Supp.2d 366, 372 (D. Mass. 2002) (cited favorably

in Tice, 647 F.3d at 107) (“I have nothing else to say.”).

       Notwithstanding contrary and binding authority, the district court found

Defendant’s statement that he “‘wasn’t going to say anything at all’ . . . ambiguous,

especially given the fact that [Defendant] voluntarily waived his Miranda rights minutes

later once informed of the charges against him and the subject of the invocation.”

Abdallah, 196 F.Supp.3d at 600, 604 (emphasis added). The district court erred by

relying upon these post-request facts to cast ambiguity on Defendant’s otherwise

unambiguous request to remain silent.

       When determining whether an invocation is ambiguous, courts can consider

whether the “request [itself] . . . or the circumstances leading up to the request would

render [the request] ambiguous[.]” Smith v. Illinois, 469 U.S. 91, 98 (1984) (emphasis

added). But courts cannot cast ambiguity on an otherwise clear invocation by looking to

circumstances which occurred after the request. In Smith v. Illinois, lower courts found a

defendant’s request for counsel to be ambiguous “only by looking to [the defendant’s]

subsequent responses to police questioning[.]” Id. at 97 (emphases in original). The

Supreme Court held that a defendant’s “postrequest responses to further interrogation

may not be used to cast retrospective doubt on the clarity of the initial request itself.” Id.

at 100 (emphasis in original). The Court reasoned “[n]o authority, and no logic, permits

the interrogator to proceed . . . on his own terms and as if the defendant had requested

nothing, in the hope that the defendant might be induced to say something casting

retrospective doubt on his initial statement . . . .”         Id. at 99 (citation omitted).

                                             11
Subsequently, the Supreme Court also recognized in Berghuis v. Thompkins that “there is

no principled reason to adopt different standards for determining when an accused has

invoked the Miranda right to remain silent and the Miranda right to counsel[.]” 560 U.S.

at 381. Together, Smith and Thompkins establish that courts likewise cannot use post-

request facts and circumstances in determining whether a defendant unambiguously

invoked his right to remain silent, let alone to cast ambiguity on an otherwise clear

request to remain silent. Accord Jones, 829 F.3d at 1140; United States v. Hamidullin,

114 F.Supp.3d 388, 392 (E.D. Va. 2015).

      The district court and government highlight cases outside of this Circuit in which

“similar language was not considered an unequivocal invocation of the right to remain

silent.” Abdallah, 196 F.Supp.3d at 603. These cases are inapposite. For example, in

United States v. Sherrod and United States v. Banks, context preceding the defendants’

purported invocations rendered what otherwise might have been unambiguous language

open to alternative interpretations. See United States v. Sherrod, 445 F.3d 980, 982 (7th

Cir. 2007) (officer continually refused to answer defendant’s questions); United States v.

Banks, 78 F.3d 1190, 1196 (7th Cir. 1996) (defendant had just been arrested and placed

in a squad car), vacated on other grounds by Mills v. United States, 519 U.S. 990 (1996),

on remand United States v. Mills, 122 F.3d 346, 349–51 (affirming on this point). In

Banks, the Seventh Circuit made clear:

      We believe that the magistrate judge’s characterization of the statement
      was, on this record, a permissible one. [The defendant’s] response of “I
      don’t got nothing to say,” standing alone, could be construed as an
      invocation of his right to remain silent. Yet, when placed in the context of


                                           12
       his other comments, the alternate interpretation—that it was merely an
       angry response to the form in front of him—is also possible.

78 F.3d at 1197 (emphases added).

       By contrast, here the government presented no pre-request context suggesting

Defendant’s statement was nothing more than an “angry response” or otherwise casting

ambiguity on Defendant’s clear request to remain silent. Without pre-request context,

Defendant’s unambiguous statement that he “wasn’t going to say anything at all” cannot

be construed as anything but an unambiguous request to remain silent.

       To the extent the government relies on cases like Banks to argue that an “angry”

response to Miranda warnings generally does not qualify as an unambiguous invocation,

we disagree. There is no requirement that Miranda invocations be measured, polite, or

free of anger, in the assessment of the officers to whom they are directed. Indeed, a

purported invocation that is not assertive enough may be deemed too equivocal to pass

muster under Davis, see 512 U.S. at 459; if invocations that are perceived as overly

assertive also are disqualified, then suspects will be left to walk a tonal tightrope, with no

margin for error on either side. And even if we did agree with the government’s premise,

we note, it would make no difference on the facts of this case: as the officers’ own

suppression testimony makes clear, the Defendant in fact was not angry but instead “very

upbeat [and] jovial” throughout his interrogation. J.A. 79.

       The government also argues that because the Defendant made his statement before

Agent Lewis completed the Miranda warnings, he could not have invoked his right to

remain silent “knowingly and intelligently.” Appellee’s Br. at 20. But there is no


                                             13
requirement that an unambiguous invocation of Miranda rights also be “knowing and

intelligent.”   That is the standard applied to the waiver of Miranda and other

constitutional rights, not to the invocation of such rights. See Thompkins, 560 U.S. at

382.; Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (because courts “indulge every

reasonable presumption against waiver” of constitutional rights, such waivers must be

knowing and intelligent).

       Tellingly, the government cites no case—nor have we found any such case—

holding that defendants must wait until the completion of Miranda warnings prior to

invocation. At best, the government offers us a footnote from McNeil v. Wisconsin,

which it quotes as saying “we have in fact never held that a person can invoke his

Miranda rights anticipatorily . . . .” Appellee’s Br. at 21. But that footnote goes on to

state: “We have in fact never held that a person can invoke his Miranda rights

anticipatorily, in a context other than ‘custodial interrogation[.]’” McNeil v. Wisconsin,

501 U.S. 171, 182 n.3 (1991) (emphasis added).

       There is a good reason that the government cannot provide us with a case. The

government’s argument does more than misapply the “knowing and intelligent” standard

to invocations of constitutional rights. It also rests on an unwarranted assumption that no

defendant can ever be aware of his constitutional rights before the government informs

him of those rights. That assumption runs counter to the “deeply rooted” presumption in

our criminal justice system that “every person [knows] the law.” Cheek v. United States,

498 U.S. 192, 199 (1991). When criminal defendants complain that complex statutes are

too “difficult for the average citizen to know and comprehend the extent of the duties and

                                            14
obligations imposed by” law, we nevertheless apply this presumption and hold that

“ignorance of the law . . . is no defense to criminal prosecution[.]” Id. at 199–200. But

the government now asks us to adopt the opposite presumption—that defendants cannot

know their constitutional rights prior to receiving a warning—in the context of those

rights that Miranda protects—rights that Miranda has rendered “part of our national

culture.” Dickerson v. United States, 530 U.S. 428, 443 (2000). There is no principled

reason to adopt the conflicting presumptions that defendants must know the criminal laws

which inculpate them but cannot know the constitutional rights which protect them. Nor

is there any reason for the law to effectively penalize a defendant who, even without

receiving the warnings required by Miranda, is aware of his constitutional rights and

chooses to exercise them.

       Moreover, the theory underlying the government’s argument fundamentally

misconceives the relationship between Miranda warnings and the right to remain silent.

To that end, the Supreme Court has held that defendants have a constitutional right to

remain silent even when they are not subjected to custodial interrogation and thus have

no right to Miranda warnings. See, e.g., Minnesota v. Murphy, 465 U.S. 420, 427 (1984)

(discussing both criminal and noncriminal investigations); see also Salinas v. Texas

(2013), 570 U.S. 178, 190–91 (Alito, J., concurring) (plurality opinion) (suspects may

unequivocally invoke the privilege against self-incrimination in a non-custodial setting).

       In contrast, Miranda warnings are “procedural safeguards” that the Supreme Court

“employed to dispel the compulsion inherent in custodial surroundings.” See Miranda,

384 U.S. at 458. Without these warnings, “no statement obtained from the defendant can

                                            15
truly be the product of his free choice.” Id. Miranda warnings are not—nor were they

intended to be—a procedural stumbling block to prevent informed defendants from

exercising their constitutional rights.    Instead, they were instituted to inform the

“unaware” of their preexisting rights and to “show the individual that his interrogators are

prepared to recognize his privilege should he choose to exercise it.” Id. at 468. The

officers could not ignore Defendant’s unambiguous invocation merely because they

decided that Defendant’s invocation was not “knowing and intelligent.”

                                            B.

       Under black-letter Fifth Amendment law, once a suspect unambiguously indicates

“that he wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at

473–74.    In Michigan v. Mosley, the Supreme Court held that the “resumption of

questioning is permissible” and subsequent confessions are admissible only if the

suspect’s right to cut off questioning was “scrupulously honored.” 423 U.S. 96, 101–04

(1975) (emphasis added). Questioning resumes whenever officers engage in either (1)

“express questioning,” or (2) “words or actions,” which “the police should know are

reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S.

291, 301 (1980); United States v. Johnson, 734 F.3d 270, 276 (4th Cir. 2013). Under this

formulation, questioning generally does not resume when officers merely make “requests

for routine information necessary for basic identification purposes.” United States v.

Cowan, 674 F.3d 947, 958 (8th Cir. 2012) (citation omitted). But questioning does

resume when officers “should reasonably be aware that the information sought is directly

relevant to the substantive offense charged.” Id. (citing Pennsylvania v. Muniz, 496 U.S.

                                            16
582, 602 n. 14 (1990)) (emphasis added); see also United States v. Molina-Gomez, 781

F.3d 13, 24–25 (1st Cir. 2015) (Though “routine questions . . . do not constitute

interrogation,” defendant was interrogated when asked questions “relating to” his

suspected crimes); United States v. Burns, 684 F.2d 1066, 1075–76 (2d Cir. 1982).

       To guide the inquiry into whether a suspect’s rights have been scrupulously

honored, this Court has identified five non-exhaustive, non-dispositive factors:

       (1) Whether the police had given the suspect Miranda warnings at the first
       interrogation and the suspect acknowledged that he understood the
       warnings;

       (2) Whether the police immediately ceased the interrogation when the
       suspect indicated that he did not want to answer questions;

       (3) Whether the police resumed questioning the suspect only after the
       passage of a significant period of time;

       (4) Whether the police provided a fresh set of Miranda warnings before the
       second interrogation; and

       (5) Whether the second interrogation was restricted to a crime that had not
       been a subject of the earlier interrogation.

Weeks v. Angelone, 176 F.3d 249, 267 (4th Cir. 1999).          Despite these factors, the

touchstone remains whether a “review of the circumstances” reveals that the suspect’s

rights were “fully respected.” Id. at 268 (citing Mosley, 423 U.S. at 104). Of particular

relevance in this case are the factors inquiring whether: (1) the officers immediately

ceased questioning, (2) the officers waited a “significant period of time” before resuming

questioning, and (3) the interrogation involved the same crime which was the subject of

the earlier investigation.   What constitutes a “significant period” is a function of the

degree to which “police persist[ed] in efforts to wear down the [suspect’s resistance] and

                                            17
make him change his mind.” Id. (citing Mosley, 423 U.S. at 105–06). Although this

Court “does not require a durational minimum” before resuming questioning, id., we are

mindful that “to permit the continuation of custodial interrogation after a momentary

cessation would clearly frustrate the purposes of Miranda . . . .” Mosley, 423 U.S. at 102.

       In its analysis, the district court pointed out that the Weeks factors militated against

finding Defendant’s request to remain silent was scrupulously honored. See Abdallah,

196 F.Supp.3d at 604 (“[T]here was not a significant passage of time between the first

statement and the interrogation and they concerned the same crime.”). We agree.

       As was previously discussed, Defendant’s statement that he “wasn’t going to say

anything at all” was a clear invocation of the right to remain silent. See supra Part II.A.

Still, the interrogating officer responded, “Well, just let me finish your warning first,”

read Defendant his Miranda rights, and immediately asked Defendant, “Do you even

know why you’re under arrest[?]” J.A. 79, 105. Other courts have recognized that this

precise question is reasonably likely to elicit an incriminating response.          See, e.g.,

Etheridge v. Johnson, 49 F.Supp.2d 963, 982 (S.D. Tex. 1999), dismissed, 209 F.3d 718

(5th Cir. 2000); Pirtle v. Lambert, 150 F.Supp.2d 1078 (E.D. Wash. 2001), vacated on

other grounds by Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002). And with good

reason.

       One can expect that criminal defendants who are asked “Do you know why you

are under arrest?” will respond with a variety of incriminating, speculative statements

about their substantive offenses. See, e.g., Etheridge, 49 F.Supp.2d at 969 (“Yes, I know

I’m under arrest for killing that fifteen-year-old girl”); Pirtle, 150 F.Supp.2d at 1083 (“Of

                                              18
course I do, you might as well shoot me now”). Even though Defendant stated he wasn’t

going to say anything all, Defendant was immediately asked an express question that

reasonably required him to discuss his substantive offense. Cowan, 674 F.3d at 958.

Defendant reasonably responded with several incriminating statements.          And those

statements were ultimately used to convict Defendant. On these facts, it is clear that

Defendant’s rights were not scrupulously honored as required by Weeks and Mosley.

Accord Jones, 829 F.3d at 1141; United States v. Nam Quoc Hoang, No. 1:16-CR-193,

2017 WL 1197243, at *6 (E.D. Va. Mar. 31, 2017) (holding that when the defendant was

questioned immediately about the same crime after invoking his right to remain silent, the

defendant’s rights were not scrupulously honored).

      The government makes much of the fact that Defendant “eagerly answered

questions, even provided narratives without prompting” after receiving a second Miranda

warning. Appellee’s Br. at 29 (emphasis added). But law enforcement officers do not

scrupulously honor a Defendant’s unambiguous request to remain silent when those

officers unceasingly interrogate Defendant and ignore his clear request to remain silent.

As the Ninth Circuit rightly recognized:

      Under Miranda, the onus is not on the suspect to be persistent in his
      demand to remain silent. Rather, the responsibility falls to the law
      enforcement officers to scrupulously respect his demand. Relying on the
      fact that it was the defendant, not the interrogators, who continued the
      discussion, ignores the bedrock principle that the interrogators should have
      stopped all questioning. A statement taken after the suspect invoked his
      right to remain silent cannot be other than the product of compulsion, subtle
      or otherwise.




                                           19
Jones, 829 F.3d at 1141 (citations and alterations omitted). Defendant in this case

invoked his right to remain silent. Under Mosley, all questioning should have ceased.

Because Defendant’s request was ignored, and questioning continued, Defendant’s right

was not scrupulously honored, and Defendant’s subsequent statements are therefore

inadmissible. 1

                                             C.

       Even though the district court believed the Weeks factors supported a finding that

Defendant’s invocation was not scrupulously honored, the court nevertheless suggested

this was “not dispositive because the officer repeated the Miranda warning and obtained

a waiver from the Defendant . . . .” Abdallah, 196 F.Supp.3d at 604. The government

likewise argues that Defendant “understood and explicitly waived his rights.” Appellee’s

Br. at 14. These statements improperly conflate the invocation and waiver inquiries.

       In Smith, the Supreme Court held that waiver and invocation are “entirely distinct

inquiries, and the two must not be blurred by merging them together.” Smith, 469 U.S. at

98. There, the defendant unambiguously invoked the right to counsel. Id. Because the

defendant invoked his right to counsel, the Supreme Court held that the government

could not establish a “valid waiver . . . by showing only that [the defendant] responded to




       1
         The government similarly argues the exclusionary rule should not apply because
suppression “does nothing to advance” the “deterrence of unlawful police activity.”
Appellee’s Br. at 55–56. We disagree. Failing to scrupulously honor the constitutional
rights of defendants is precisely the sort of behavior that the exclusionary rule is meant to
deter. See Mosley, 423 U.S. at 102.

                                             20
further police-initiated custodial interrogation.’” Id. (quoting Edwards v. Arizona, 451

U.S. 477, 484 (1981)).

       Similarly, once a suspect unambiguously invokes the right to remain silent, all

questioning must cease. Miranda, 384 U.S. at 444; see also Jones, 829 F.3d at 1132.

Subsequent statements are inadmissible if the officers continue questioning the suspect.

Mosley, 423 U.S. at 104. Officers cannot fail to scrupulously honor a suspect’s request in

the hope that the suspect will subsequently waive that failure. Cf. United States v. Clark,

499 F.2d 802, 807 (4th Cir. 1974) (“[O]nce the privilege has been asserted . . . an

interrogator must not be permitted to seek its retraction, total or otherwise.”) (quoting

United States v. Crisp, 435 F.2d 354, 357 (7th Cir. 1970)).

       Defendant in this case unambiguously invoked his right to remain silent. See

supra Part II.A. Nevertheless, the officers continued interrogating Defendant and thus

failed to scrupulously honor Defendant’s invocation. See supra Part II.B. Under Mosley,

Defendant’s statements are therefore inadmissible.       The officers cannot circumvent

Mosley’s command by ignoring Defendant’s request, continuing to question Defendant,

and then using Defendant’s subsequent responses to argue he waived his asserted

constitutional right.

                                            D.

       The government argues that, even if the district court erred by not suppressing

Defendant’s statements, the error was harmless. Even though Defendant’s confession

was inadmissible, we will not reverse a conviction if the error was harmless. United

States v. Colonna, 511 F.3d 431, 437 (4th Cir. 2007).           “In assessing whether a

                                            21
constitutional error was harmless, we determine whether the admission of the statement

at issue was harmless beyond a reasonable doubt, such that it is clear that a rational fact

finder would have found the defendant guilty absent the error.” United States v. Giddins,

858 F.3d 870, 885 (4th Cir. 2017) (citations and alterations omitted). The test “is not

whether laying aside the erroneously admitted evidence there was other evidence

sufficient to convict beyond a reasonable doubt . . ., but more stringently, whether there

is a reasonable possibility that the evidence complained of might have contributed to the

conviction.” Id. In conducting this analysis, we are mindful that a “confession is like no

other evidence. Indeed, the, defendant’s own confession is probably the most probative

and damaging evidence that can be admitted against him[.]” Arizona v. Fulminante, 499

U.S. 279, 296 (1991); see also Jones, 829 F.3d at 1142.

       Based upon the facts before us, we cannot say that Defendant’s coerced statements

were harmless beyond a reasonable doubt on any of the five convicted counts. Indeed,

Defendant’s confession played an integral role for each conviction.

       First, to support Defendant’s conspiracy to distribute spice charge, the government

introduced Defendant’s detailed statements on his relationship with his spice distributor,

McMahon. Second, to support Defendant’s spice distribution charge, the government

introduced Defendant’s statements that he sold spice to “pretty much everybody,” he

“knew spice was illegal under federal law,” and he had sold approximately 10,000 grams

of spice. Third, to support Defendant’s distribution and possession of crack cocaine

charge, the government introduced Defendant’s statement that he gave prostitutes crack

cocaine as a “bonus.” Finally, to support Defendant’s charges of making false statements

                                            22
to federal Customs, the government introduced Defendant’s statements that he

successfully hid $150,000 from an additional safe deposit box that the officers were “too

late” to seize. By offering Defendant’s statements expressing a desire to conceal his

money, the government could demonstrate Defendant’s consciousness of guilt, destroy

Defendant’s credibility, and rebut Defendant’s claim that he maintained his earnings in

cash for religious reasons. See United States v. Sarwari, 669 F.3d 401, 407 (4th Cir.

2012) (Where a statement is “susceptible to multiple interpretations, and a defendant’s

answer is true under one understanding of the question but false under another, the fact

finder determines whether the defendant knew his statement was false”); Hickory v.

United States, 160 U.S. 408, 416 (“It is undoubted that acts of concealment by an accused

are competent to go to the jury as tending to establish guilt . . .”). Because of the

particularly damaging nature of confessions, and because Defendant’s confession was

integral to every count that Defendant was convicted of, we cannot say beyond all

reasonable doubt that Defendant’s coerced statements were harmless as to any count.

                                           III.

      Defendant next argues that Brady v. Maryland, 373 U.S. 83, 87 (1963), and its

progeny required the district court to conduct an in camera review before denying his

request for production of the email exchange among the law enforcement officers

attending Defendant’s interrogation, which culminated in the final interrogation report. 2


      2
        Having held that the district court erred in denying Defendant’s motion to
suppress his inculpatory statements, whether the district court erred in denying
Defendant’s request for in camera review is not essential to our disposition of
(Continued)
                                           23
“In reviewing the district court’s denial of [Defendant]’s Brady motion, we review [the

district court’s] legal conclusions de novo and its factual findings for clear error.” United

States v. King, 628 F.3d 693, 702 (4th Cir. 2011). On review, we agree with Defendant.

Specifically, because Defendant demonstrated that the drafting exchange plausibly

contained materially favorable evidence, the district court erred in failing to conduct an in

camera review before denying Defendant’s production request.

       Under Brady v. Maryland, Defendants are entitled to the disclosure of evidence

that is “both favorable to the accused and material to guilt or punishment.” Pennsylvania

v. Ritchie, 480 U.S. 39, 57 (1987); see also Brady v. Maryland, 373 U.S. at 87. Evidence

is favorable “not only when it tends substantively to negate guilt but also when it tends to

impeach the credibility of a key witness for the prosecution.” Love v. Johnson, 57 F.3d

1305, 1313 (4th Cir. 1995). Evidence is material if there is a “reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding would have

been different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995).

       In a typical Brady case, a defendant has discovered exculpatory evidence after

trial, which the defendant alleges the government unconstitutionally suppressed. King,

628 F.3d at 702. In these cases, the defendant establishes a Brady violation proving the

materiality and favorability of the withheld evidence. Id. (citing Kyles, 514 U.S. at 433).

But in some cases, like Defendant’s case, the government “may possess potential Brady




Defendant’s appeal. Nonetheless, we exercise our discretion to address the issue so as to
provide guidance to other courts presented with similar issues.

                                             24
material that it deems privileged or that is otherwise confidential.” United States v.

Trevino, 89 F.3d 187, 189 (4th Cir. 1996). Because the defendant does not have access to

the confidential material, the defendant “cannot possibly know, but may only suspect,

that particular information exists which meets [Brady’s] requirements.” Love, 57 F.3d at

1313.    In such cases, “a defendant need only make ‘some plausible showing’ that

exculpatory material exists.”    King, 628 F.3d at 703.      To make this showing, the

defendant must “identify the requested confidential material with some degree of

specificity.” Id. Specificity ensures that the government’s Brady obligations do not

become “unduly burdensome,” Monroe v. Angelone, 323 F.3d 286, 316 (4th Cir. 2003),

and that the defendant does not conscript the court for “a groundless fishing expedition,”

King, 628 F.3d at 703.

        Once the defendant identifies specific evidence that could plausibly be favorable

to his defense, the defendant “does not become entitled to direct access to the information

to determine for himself its materiality and favorability.” Love, 57 F.3d at 1313. Rather,

the defendant is “entitled, in order to secure the basic right, to have the information he

has sufficiently identified submitted to the trial court for in camera inspection and a

properly reviewable judicial determination made whether any portions meet the [Brady]

requirements for compulsory disclosure.” Id. Because the defendant is entitled to in




                                            25
camera review, the district court cannot solely “rely on the government’s good faith” as a

basis to avoid review. King, 628 F.3d at 702. 3

       This Court has recognized that an officer’s drafting notes must be disclosed under

Brady when the defendant makes the appropriate “demonstration that the material sought

would be exculpatory.” United States v. Crowell, 586 F.2d 1020, 1029 (4th Cir. 1978).

Here, Defendant has identified specific evidence—the drafting exchange—and has made

the required demonstration of plausibility. See Ritchie, 480 U.S. at 58 n.15.

       During the suppression hearing, Defendant sought: (1) to establish that he

unequivocally invoked his right to remain silent, and (2) to question when and whether

Miranda warnings were given by impeaching the officers’ credibility. Over the course of

the suppression hearing, Defendant highlighted substantial inconsistencies that called into

question when those Miranda warnings were given. For example, Inspector Sylvester’s

handwritten notes said, “Miranda from DHS form-understood” and then Defendant was

“not going to say anything at all.” J.A. 154. These contemporaneous handwritten notes

do not mention Defendant interrupting his Miranda warnings.

       In contrast, Agent Lewis’s final report states that Defendant interrupted halfway

through his Miranda warnings.         Furthermore, Agent Lewis testified during the

suppression hearing that there were “some modifications” made over the eight-day

drafting period. J.A. 92. Based on Agent Lewis’s testimony and these inconsistencies—

       3
         There may be exceptional circumstances where the district court could rely in
part upon the representations of the government. Because the government has not argued
this case presents any such circumstances, we need not determine whether, or in what
circumstances, such an exception exists.

                                            26
inconsistencies that could plausibly lead to evidence and arguments materially favorable

to Defendant—Defendant requested production of the email exchange.

      Together, this evidence was sufficient to meet the “meager” plausibility

requirement for in camera review. Love, 57 F.3d at 1313. Rather than conduct an in

camera review, the district court denied Defendant’s request solely based upon Agent

Lewis’s representation that there would not be exculpatory information in the officers’

emails pertaining to the drafting of the report. Relying upon this representation was

error. King, 628 F.3d at 702.

      The district court’s error was even clearer at the time of Defendant’s motion to

reconsider production.          There, Defendant demonstrated additional substantial

inconsistencies between Agent Lewis’s suppression hearing testimony, grand jury

testimony, and final typewritten report.      For example, Agent Lewis testified at the

suppression hearing that he did not use a written waiver because Defendant was “moving

a mile a minute” and he “did not want to stifle” Defendant’s statements. J.A. 101–02.

But Agent Lewis testified before the grand jury that Defendant waived his Miranda rights

“both orally and in writing” prior to the interrogation. J.A. 1256. Furthermore, Agent

Lewis told the grand jury that Defendant “started off slow” after receiving his Miranda

warnings. J.A. 1264. And Agent Lewis did not tell the grand jury that Defendant

interrupted his Miranda warnings at all.

      We recognize that the requested emails “may contain nothing helpful to” the

Defendant.   King, 628 F.3d at 703.        But as was previously discussed, Defendant’s

confession contributed to each count for which the jury convicted Defendant. It was

                                             27
critical for Defendant’s “entire defense” to establish that he unambiguously invoked the

right to remain silent and to impeach the officers’ credibility on the nature and timing of

the Miranda warnings. Id. at 704. Based upon: (1) the inconsistencies that existed

between Inspector Sylvester’s contemporaneous handwritten notes and Agent Lewis’s

final report, (2) the inconsistencies in Agent Lewis’s grand jury testimony and

suppression hearing testimony, and (3) Agent Lewis’s own testimony that there were

“some modifications” over the course of the drafting exchange, it is plausible that an in

camera review of the specific drafting exchange would reveal evidence that was

materially favorable to Defendant’s challenge of when Miranda warnings were given.

The district court thus erred in failing to conduct an in camera review.

                                            IV.

       Defendant raises several additional arguments on appeal. For reasons briefly

discussed below, each of these arguments are without merit.

                                            A.

       Defendant first contends that the district court erred by limiting non-party

witnesses’ testimony on whether they believed—not whether Defendant believed—that

spice was illegal. We review “a trial court’s rulings on the admissibility of evidence for

abuse of discretion” and “will only overturn an evidentiary ruling that is arbitrary and

irrational.” United States v. Cole, 631 F.3d 146, 153 (4th Cir. 2011). Trial courts have

“wide latitude” to “place limitations upon the cross-examination of witnesses . . . based

on concerns including harassment, prejudice, confusion of the issues, repetition, or

marginal relevance.”    United States v. Zayyad, 741 F.3d 452, 459 (4th Cir. 2014)

                                            28
(citations and alterations omitted). Furthermore, we “rarely reverse relevancy decisions

because they are fundamentally a matter of trial management.” Id. (citations omitted).

Under this deferential standard of review, the district court did not abuse its discretion by

excluding non-party witnesses’ testimony on whether they believed spice was illegal.

       In Zayyad, the defendant sought to cross-examine non-party witnesses on their

knowledge of the “gray market” to show that the defendant “reasonably believed that he

dispensed real [as opposed to counterfeit] drugs.” Id. at 458. The district court excluded

this testimony, finding the witnesses’ knowledge of the gray market was not relevant to

the defendant’s mens rea. Id. at 459 (citing Fed. R. Evid. 402 (“Irrelevant evidence is not

admissible”)). This Court affirmed. We explained that absent some showing that the

defendant relied on the witnesses’ belief, the district court reasonably determined that this

testimony was merely a distraction, having “no connection to the knowledge element [of

the crime] and consequently no relevance.” Id. at 460–61.

       As in Zayyad, the district court did not abuse its discretion in excluding the

testimony of non-party witnesses regarding their knowledge of the illegality of spice.

Defendant did not establish any connection between the witnesses’ knowledge and

Defendant’s own mens rea at trial. Without this connection, the district court could

reasonably determine that the witnesses’ knowledge would confuse the jury as to the

critical issue it was tasked with deciding—whether Defendant knew spice was illegal.

Therefore, the district court did not abuse its discretion in limiting the non-party

witnesses’ testimony.

                                             B.

                                             29
       Defendant also challenges the district court’s reliance on Agent Lewis’s

conflicting testimony in denying Defendant’s motion to suppress.               According to

Defendant, the district court “should have considered the conflicting testimony of Special

Agent Lewis [and therefore] granted the motion for reconsideration.” Appellant’s Br. at

17. But even when there are “serious questions about the credibility of some of the

government’s witnesses . . . it is for the [factfinder] and not the appellate court to weigh

the evidence and judge the credibility of the witnesses.” United States v. Wilson, 118

F.3d 228, 236 (4th Cir. 1997).       Unlike the appellate court, the factfinder has “the

opportunity to observe the witnesses, listen to their testimony, and [is] in the best position

to make the credibility finding.” See United States v. Dagnan, 293 F. App’x 205, 207

(4th Cir. 2008) (unpublished opinion). Despite the inconsistencies which existed among

Agent Lewis’s grand jury testimony, suppression hearing testimony, and in the final

typewritten report, it was ultimately for the district court to observe Agent Lewis and

weigh the credibility of testimony at the hearing. Defendant has presented no evidence to

suggest that the district court failed to meet its obligation, and there is no basis for us to

conclude the district court erred in crediting Agent Lewis’s testimony. See United States

v. Friedemann, 210 F.3d 227, 230 (4th Cir. 2000).

                                             C.

       Defendant next argues that the prosecutor improperly relied upon what he views as

the misleading testimony of Inspector Sylvester in its closing argument, and that the

district court erred by failing to cure this improper argument. Defendant did not raise this

argument below. When, as here, a defendant fails to object to an improper closing

                                             30
argument at trial, this Court’s review is limited to plain error. United States v. Hale, 857

F.3d 158, 171 (4th Cir. 2017). Under this circumscribed standard of review, we reject

Defendant’s argument.

       Improper closing arguments by a prosecutor “may so infect the trial with

unfairness as to make the resulting conviction a denial of due process.” United States v.

Lighty, 616 F.3d 321 (4th Cir. 2010) (citations and alterations omitted). To determine

whether a prosecutor’s argument violated a defendant’s due process rights, this Court

examines: “(1) whether the remarks were, in fact, improper, and, (2) if so, whether the

improper remarks so prejudiced the defendant’s substantial rights that the defendant was

denied a fair trial.” Id. In the context of using false testimony, prosecutorial misconduct

occurs “not only where the prosecution uses perjured testimony to support its case, but

also where it uses evidence which it knows creates a false impression of a material fact.”

Hamric v. Bailey, 386 F.2d 390, 394 (4th Cir. 1967); see also United States v. Cargill, 17

F. App’x 214, 224 (4th Cir. 2001) (unpublished opinion).

       The Analogue Act renders it a crime to knowingly distribute a controlled

substance. 18 U.S.C. § 841(a)(1). In McFadden v. United States, the Supreme Court

provided two methods by which the knowledge element may be satisfied: (1) by

“showing that the defendant knew he possessed a substance listed on the [federal drug]

schedules,” and (2) by showing that the defendant “knew the identity of the substance

possessed.” 135 S. Ct. 2298, 2304 (2015). Under the second method, “ignorance of the

law is typically no defense[.]” Id.



                                            31
      During Defendant’s custodial interrogation, Defendant stated that he believed

spice was “‘legal in Virginia” but “not for the feds.” J.A. 147. At trial, Inspector

Sylvester did not mention that Defendant thought spice was legal in Virginia. Instead,

Inspector Sylvester testified that Defendant’s “understanding was that [spice] was illegal

under federal law.” J.A. 343. Defendant did not object, but Defendant did cross-examine

Sylvester using the full statement.        During closing arguments, the prosecutor

reemphasized that Defendant “told agents [spice] was illegal.” J.A. 1148.

      Defendant argues that district court plainly erred because Inspector Sylvester’s

statements were misleading testimony, and it was thus improper for the prosecutor to rely

on them.    We disagree.     First, Inspector Sylvester’s statement was literally true.

Defendant had in fact stated that spice was illegal under federal law. Though Inspector

Sylvester omitted Defendant’s statement that spice was “legal in Virginia,” this omission

is immaterial to the knowledge element of the Analogue Act, 18 U.S.C. § 841(a)(1). To

the extent that the government sought to prove Defendant’s knowledge under the first

McFadden method, it is simply irrelevant whether Defendant believed spice was legal

under Virginia law. Instead, what is relevant is that Defendant knew spice was listed on

the federal drug schedules. To the extent that the government sought to prove knowledge

under the second McFadden method, all that is pertinent is that Defendant knew the

identity of the controlled substance.    Because Inspector Sylvester’s testimony was




                                           32
literally true, and any omission was immaterial, the district court did not plainly err in

failing to take corrective action. 4

                                            V.

       In sum, the district court improperly denied Defendant’s motions to suppress and

to reconsider suppression. Additionally, the district court erred by failing to conduct an

in camera review before denying Defendant’s motions to produce and to reconsider

production. For these reasons, we reverse Defendant’s conviction on all five counts. As

such, this case is remanded for further proceedings consistent with this opinion.

                                                           REVERSED AND REMANDED




       4
         Defendant also argues that the district court erred by failing to grant his Rule 29
motion for acquittal. Because we vacate Defendant’s conviction, we decline to address
this argument.

                                            33
