                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-3726

U NITED S TATES OF A MERICA,
                                              Plaintiff-Appellee,
                               v.

R OHAN G. H ERON,
                                           Defendant-Appellant.


          Appeal from the United States District Court
                for the Southern District of Illinois.
          No. 06-30068-WDS—William D. Stiehl, Judge.



      A RGUED O CTOBER 31, 2008—D ECIDED M AY 5, 2009




 Before F LAUM, R OVNER, and W OOD , Circuit Judges.
  W OOD , Circuit Judge. In May of 2006, Rohan Heron
decided to ride shotgun with his friend Gigiman
Hamilton on a cross-country road trip. It is unclear
whether Heron initially knew that this trip was for the
purpose of trafficking drugs. A confidential informant did
know, however, and tipped off the Drug Enforcement
Administration (“DEA”). The DEA, in turn, let the
Caseyville Police Department know that a semi-tractor
trailer carrying a shipment of marijuana and possibly
2                                              No. 07-3726

cocaine would be arriving in St. Clair County, Illinois.
Based on this information, Officer Greg Hosp stopped
Hamilton’s vehicle. After a dog alerted to the presence
of drugs, Hosp and the K-9 unit officer searched the
truck, discovered marijuana and cocaine, and arrested
Hamilton and Heron.
  Heron was charged with possession with the intent to
distribute five or more kilograms of cocaine and possession
with intent to distribute 100 or more kilograms of mari-
juana, both in violation of 21 U.S.C. § 841(a)(1). He was
convicted and sentenced to 120 months’ imprisonment.
Before trial, he filed a motion to suppress statements he
had made, but his motion was denied in part. During trial,
he made a motion for a continuance, which was also
denied. He now appeals, asserting that the court’s denial
of his motion for a continuance was both an abuse of
discretion and a violation of his constitutional rights to
due process and effective assistance of counsel. We
agree with Heron that it was an abuse of discretion to
deny the motion for a continuance. We therefore
reverse and remand for further proceedings.


                             I
  Hosp stopped Hamilton’s vehicle at 1:30 a.m. on May 10,
2006, and Hamilton’s and Heron’s arrests followed
shortly thereafter. Hamilton was given Miranda warnings
and interrogated the next day. According to the DEA-6
Report of Investigation for this interview, Hamilton
stated that he had asked “his friend, Rohan HERON, to
drive with him to California in order to help him drive
No. 07-3726                                              3

back.” Hamilton did not allude to any other trips the two
might have taken. On November 13, 2006, Hamilton gave
an additional statement, with counsel present, which
was memorialized in another DEA-6 Report. At this
meeting, Hamilton stated that Heron “was only involved
in the transportation of marihuana on the occasion in
which they were arrested in Illinois” and that “at first,
HERON did not want to participate in the transportation.”
Hamilton added, however, that Heron “agreed to assist
in the transportation of the marihuana for $20,000,”
which was half of the payment for the entire shipment.
   On June 11, 2007, the day before Heron’s trial, Hamilton
changed his story. He informed the government that he
now intended to testify that Heron had been involved
in two prior drug trips as well. At 6:00 that evening—that
is, as soon as it could—the government informed defense
counsel of this change in testimony. The next morning,
defense counsel made an oral motion “to compel the
government to generate a DEA-6,” or, in the alternative, to
“compel Mr. Hamilton to discuss with me the testimony
that he has already discussed with the government.” The
court ordered the government to make Hamilton avail-
able but refused to compel him to speak to defense
counsel. Defense counsel then moved for a continuance
to investigate the new testimony. The government did not
oppose the motion, but the district court denied it, com-
menting only that it was 9:30 in the morning of trial
and that despite the court’s sympathy “to the immediacy
of the events that prompted your Motion at this time,” the
trial would not be continued. The court offered no
further explanation of its ruling.
4                                             No. 07-3726

  Heron had been interrogated on May 10 at 4 a.m. by
Special Agent Scott and Task Force Officer Wade
Gummersheimer. The government says that this
meeting was conducted at Heron’s request and that
someone at the Fairview Heights Police Department
conveyed the request to Gummersheimer. Heron asserts
that there is insufficient evidence in the record to sup-
port that contention, as Gummersheimer did not testify
at the suppression hearing, and the person who allegedly
made the phone call was never identified. The critical
point, however, is undisputed: Heron was not given
Miranda warnings at this interview. The DEA-6 Report
for this meeting notes that Heron maintained that it was
only in Phoenix, Arizona, that he became aware that he
and Hamilton were driving bags full of marijuana
across the country. Thirty-two hours later on May 11,
Scott and Special Agent Rehg began another interrogation
of Heron at the Fairview Heights Police Department,
except this time they did administer Miranda warnings.
During the second session, Heron said essentially the
same thing as he had at the May 10 session.
  Heron filed a motion to suppress his statements from
both the May 10 and May 11 interrogations. The district
court ruled that the May 10 statements had to be sup-
pressed, but that the May 11 statements could be admitted.


                            II
  We begin with Heron’s assertion that the district court
erred when it refused to grant a continuance after Hamil-
ton changed his testimony at the eleventh hour. Heron
No. 07-3726                                               5

argues that the court’s refusal to do so was both an abuse
of discretion and a constitutional violation. We need not
reach the constitutional argument unless we conclude
that the district court did not abuse its discretion (the
relevant standard of review) when it acted. United States v.
Vincent, 416 F.3d 593, 598 (7th Cir. 2005). This court has
identified several factors that a district court should
consider in deciding whether to grant such a motion:
    1) the amount of time available for preparation; 2) the
    likelihood of prejudice from denial of the continuance;
    3) the defendant’s role in shortening the effective
    preparation time; 4) the degree of complexity of the
    case; 5) the availability of discovery from the prosecu-
    tion; 6) the likelihood a continuance would have
    satisfied the movant’s needs; and 7) the inconvenience
    and burden to the district court and its pending
    case load.
Id. In Heron’s case, most of these points weigh in favor
of granting a continuance, some strongly so. Defense
counsel had no time, as a practical matter, to prepare
for the dramatic change in Hamilton’s testimony, as he
received notice only fifteen hours before the trial was to
begin (Factor 1). While defense counsel was able to im-
peach Hamilton’s revised story, the new account was
more than enough to cast Heron in the jury’s eyes as an
active participant in the drug trip. Hamilton’s previous
statements had portrayed Heron as a reluctant participant
who was coaxed into continuing the drug trip with
offers of money. The change in testimony thus created a
likelihood of prejudice (Factor 2). Heron did not play any
6                                                  No. 07-3726

role in creating the time pressure (Factor 3). The presence
of the new testimony added some complexity to the case,
as the alleged previous trips would require further in-
vestigation (Factor 4). Finally, although defense counsel
initially wondered whether Hamilton would testify with
enough specificity about the timing of the trips to allow
further investigation, Hamilton did in fact testify that the
first prior trip was “[s]hortly after February” of 2006 and
that the second prior trip was “[s]hortly after that. I think
about a month or so.” This narrowed the date range for
the earlier trips and would have provided an adequate
starting point for the investigation into trucking records,
receipts, and cell phone records that Heron wished to
conduct (Factor 6).
  Only two factors weighed against granting a continu-
ance. First, the government provided all information
that was available to it immediately after Hamilton
changed his testimony, even though it did not formally
create a DEA-6 Report (Factor 5). In addition, delaying
the trial may have been an inconvenience and a burden
to the district court, even though the judge did not
mention any special circumstances beyond the fact that
the motion was being made at 9:30 a.m. on the morning
of trial (Factor 7). While it is true that the court is entitled
to adhere to the date it sets for trial, it “cannot have a
myopic insistence upon expeditiousness in the face of a
justifiable reason for delay.” United States v. Jones, 455
F.3d 800, 804-05 (7th Cir. 2006) (internal quotation
marks omitted).
  Hamilton’s changed testimony was a crucial piece of
evidence that defense counsel should have had an oppor-
No. 07-3726                                               7

tunity to develop. We hold that the district court abused
its discretion in denying the motion for a continuance.


                            III
  While our conclusion with respect to the continuance
is enough to require a remand, we address Heron’s sup-
pression arguments as well, since this issue will inevitably
arise again in the proceedings below. Heron argues that
his May 11 statements should have been suppressed
pursuant to Miranda v. Arizona, 384 U.S. 436 (1966) and
Missouri v. Seibert, 542 U.S. 600 (2004). In reviewing a
district court’s ruling on a motion to suppress, this court
reviews conclusions of law de novo and factual determina-
tions for clear error. United States v. Figueroa-Espana,
511 F.3d 696, 701 (7th Cir. 2007).
  Calling it a “close call,” the district court suppressed
the May 10 statements because “the officers should have
given the defendant his Miranda warnings before
engaging in a conversation with him.” With regard to the
May 11 statements, the court applied the test set forth in
Justice Kennedy’s concurring opinion in Seibert. This test
requires that the court suppress statements that are a
product of a “two-step interrogation technique [that is]
used in a calculated way to undermine the Miranda warn-
ing.” Seibert, 542 U.S. at 622. Importantly, “[t]he admissi-
bility of postwarning statements should continue to be
governed by the principles of [Oregon v. Elstad, 470 U.S.
298 (1985)] unless the deliberate two-step strategy was
employed.” Id. The district court found no intent on the
8                                                No. 07-3726

part of the DEA agents to engage in a two-step interroga-
tion in an effort to evade the dictates of Miranda. It there-
fore analyzed the interrogations under Elstad and found
that the statements were given voluntarily after Miranda
warnings had been administered.
  No single opinion in Seibert spoke for the Court; we
thus must strive to discern what exactly the decision
requires. Marks v. United States, 430 U.S. 188, 193 (1977)
provides the general rule for dealing with this kind of
outcome: “When a fragmented Court decides a case and
no single rationale explaining the result enjoys the
assent of five Justices, the holding of the Court may be
viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds”
(internal quotation marks omitted). When, however, a
concurrence that provides the fifth vote necessary to
reach a majority does not provide a “common denomina-
tor” for the judgment, the Marks rule does not help to
resolve the ultimate question. See Schindler v. Clerk of the
Circuit Court, 715 F.2d 341, 345 (7th Cir. 1983) (declining to
apply the Marks rule to Baldasar v. Illinois, 446 U.S. 222
(1980)). See also United States v. Carrizales-Toledo, 454 F.3d
1142, 1150 (10th Cir. 2006) (“When the plurality and
concurring opinions take distinct approaches, and
there is no narrowest opinion representing the common
denominator of the Court’s reasoning, then Marks be-
comes problematic. We do not apply Marks when the
various opinions supporting the Court’s decision are
mutually exclusive.”) (citations omitted) (internal quota-
tion marks omitted); A. T. Massey Coal Co. v. Massanari, 305
F.3d 226, 237 (4th Cir. 2002) (because it found “no theoreti-
No. 07-3726                                                9

cal overlap between the rationales employed by the
plurality and Justice Kennedy” in Eastern Enterprises v.
Apfel, 524 U.S. 498 (1998), the court did not consider
Justice Kennedy’s reasoning to be a narrower ground or
controlling); King v. Palmer, 950 F.2d 771, 781 (D.C. Cir.
1991) (en banc) (“But Marks is workable—one opinion can
be meaningfully regarded as ‘narrower’ than an-
other—only when one opinion is a logical subset of
other, broader opinions. In essence, the narrowest opin-
ion must represent a common denominator of the
Court’s reasoning; it must embody a position implicitly
approved by at least five Justices who support the judg-
ment.”).
  Applying that guidance, we conclude that the Marks rule
is not applicable to Seibert. Although Justice Kennedy
provided the crucial fifth vote for the majority, we find
it a strain at best to view his concurrence taken as a
whole as the narrowest ground on which a majority of the
Court could agree. It is true that parts of his reasoning
could be construed as a narrower ground than the one
described in Justice Souter’s plurality opinion, in that
Justice Kennedy would carve out a smaller exception to
Elstad. On the other hand, Justice Kennedy’s intent-based
test was rejected by both the plurality opinion and the
dissent in Seibert. Id. at 611-12 (“The threshold issue
when interrogators question first and warn later is thus
whether it would be reasonable to find that in these
circumstances the warnings could function effectively as
Miranda requires.”) (Souter, J., plurality opinion) (internal
quotation marks omitted); id. at 624 (“The plurality’s
rejection of an intent-based test is also, in my view, cor-
10                                             No. 07-3726

rect.”) (O’Connor, J., dissenting). Although it is hard to
be sure, it is possible that Justice Breyer agreed with
Justice Kennedy’s focus on intent. Id. at 618 (“I also
agree with Justice Kennedy’s opinion insofar as it is
consistent with [the fruits] approach and makes clear
that a good-faith exception applies.”). Counting Justice
Breyer in the Kennedy camp, we are left with only two
Justices who support the intent-based test. This is obvi-
ously not the “common denominator” that Marks was
talking about.
  In a situation like this, it is risky to assume that the
Court has announced any particular rule of law, since
the plurality and dissent approaches garnered only four
votes each. See United States v. Alcan Aluminum Corp., 315
F.3d 179, 189 (2d Cir. 2003) (“When it is not possible to
discover a single standard that legitimately constitutes
the narrowest ground for a decision on that issue, there
is then no law of the land because no one standard com-
mands the support of a majority of the Supreme Court.”);
Anker Energy Corp. v. Consolidation Coal Co., 177 F.3d 161,
170 (3d Cir. 1999) (“[I]n cases where approaches differ,
no particular standard is binding on an inferior court
because none has received the support of a majority of the
Supreme Court.”). In the case of Seibert, the only thing
we know for sure is that at least seven members of the
Court rejected an intent-based approach and accepted
some kind of exception to Elstad, even if the scope of that
exception remains unclear. See United States v. Rodriguez-
Preciado, 399 F.3d 1118, 1141 (9th Cir. 2005) (Berzon, J.,
dissenting).
No. 07-3726                                                  11

   Under these circumstances, we must continue to work
with the authoritative sources that remain available to
us. Up until now, we have not yet settled on a definitive
approach toward the problem addressed in Seibert. Our
first analysis of that decision in United States v. Stewart, 388
F.3d 1079 (7th Cir. 2004), produced a set of tentative
statements. We said that
    at least as to deliberate two-step interrogations in
    which Miranda warnings are intentionally withheld
    until after the suspect confesses, the central voluntari-
    ness inquiry of Elstad has been replaced by a presump-
    tive rule of exclusion, subject to a multifactor test
    for change in time, place, and circumstances from
    the first statement to the second.
Id. at 1090 (first emphasis added). We also expressed the
opinion that “Elstad appears to have survived Seibert.”
Id. (emphasis added). In a later case, United States v.
Peterson, 414 F.3d 825 (7th Cir. 2005), we did not reach
the question how Seibert would apply, but we observed
that the intent-based test was shared by only Justices
Kennedy and Breyer. Id. at 828. We then delved into the
rationale of Seibert:
    The thinking behind this is that a suspect who has been
    induced to make a statement may see little point in
    clamming up after warnings have been given; he
    may think that the cat is out of the bag. Moreover,
    eliciting a statement before the suspect has been
    informed of his rights implies that the warnings and
    rights are charades, which reduces the chance that
    the suspect will invoke his constitutional privilege.
12                                              No. 07-3726

Id. This reasoning appears to be defendant-focused. If that
is so, then it may be in some tension with our decision
in Stewart and Justice Kennedy’s intent-based test, as the
latter converts Miranda’s focus from a concern with the
defendant’s knowledge of her own rights into what
looks more like a rule designed to curb abuse by the police.
  We have no need here to resolve once and for all what
rule or rules governing two-step interrogations can be
distilled from Seibert. This is because Heron’s May 11
statements would be admissible under any test one
might extract. We agree with the district court that those
statements would be admissible under Justice Kennedy’s
intent-based test. The district court found as a fact that
there was “no evidence that the officers, during the de-
fendant’s first statement, had any intent or strategy to
deliberately withhold Miranda warnings in an attempt
to get the defendant to confess.” In all likelihood, the
court was relying on Scott’s testimony that Heron had
requested the meeting with the officers and that Scott
and Rehg assumed that Heron had already been given
Miranda warnings.
  Heron argues that the court’s finding was clearly errone-
ous. He points out that Scott testified that she had
been with the DEA for nine-and-a-half years, and he
argues that the court could have inferred impermissible
intent directly from the fact that she failed to take the
precaution of administering Miranda warnings before
talking to Heron on May 10.
  While this may have been a possible inference, the
district court was not compelled to make it. We cannot
No. 07-3726                                              13

find that the court committed clear error in crediting
Scott’s testimony that her lack of precaution was an
honest mistake. The court was entitled to conclude that
it was reasonable for her to assume that Heron would
have been given Miranda warnings upon arrest. There is
also a question whether the May 10 meeting was called
in response to Heron’s request, or if instead someone
from the Fairview Heights Police Department requested
the meeting. We decline to engage in speculation about
whether the police or Heron initiated the meeting, be-
cause nothing turns on it. Law enforcement cannot be
expected to keep track of the identity of every person
who makes a phone call on behalf of another police
department.
  We also see no reason to disturb the district court’s
conclusion that Heron gave the May 11 statement volun-
tarily. As it notes, “[i]t is clear that Agent Rehg gave the
defendant his Miranda warnings before he questioned
him, and that the defendant appeared to understand
those warnings, but chose to waive his rights and gave
his statement to Agent Rehg.” Heron notes that Rehg
did not obtain a written Miranda waiver, but this alone
does not make Heron’s statement involuntary. Because
the May 11 statements were given voluntarily, they
would be admissible under the interpretation of Elstad
favored by the Seibert dissenters as well.
  Finally, Heron’s   statements would be admissible under
the approach of      the Seibert plurality. For them, the
central inquiry is   whether, given the totality of the cir-
cumstances, the      midstream Miranda warnings were
14                                              No. 07-3726

effective. The district court must weigh several factors
in determining effectiveness:
     [1] the completeness and detail of the questions and
     answers in the first round of interrogation, [2] the
     overlapping content of the two statements, [3] the
     timing and setting of the first and the second, [4] the
     continuity of police personnel, and [5] the degree to
     which the interrogator’s questions treated the
     second round as continuous with the first.
Seibert, 542 U.S. at 615. We acknowledge that some of
these (unweighted) factors suggest that the court should
have excluded Heron’s May 11 statements. There was
sufficient overlap between the May 10 and May 11 state-
ments (and likely the questions that elicited the state-
ments) such that the officers involved did not think it
necessary to produce another DEA-6 Report for the
second interrogation (Factors 1, 2, & 5). The interrogations
also occurred in the same location, the Fairview Heights
Police Department (Factor 3). There was some but not
complete continuity of police personnel—Scott was
present at both interrogations (Factor 4).
  The remaining factor supports admissibility. Thirty-two
hours elapsed between the first interrogation and the
second (Factor 3). This contrasts with the 20-minute
break in Seibert. Id. at 605. While this is a close case,
nothing in the Seibert plurality opinion condemns us to a
mechanical counting of items on a list. We must instead
examine each one of them for the light it throws on the
central inquiry: whether the later Miranda warnings
were effective. Here, the lengthy temporal separation
No. 07-3726                                               15

between Heron’s first and second encounters persuades
us that the district court did not err when it found that the
later warnings served their intended purpose. The May 11
statements thus would be admissible under the
Seibert plurality’s approach. Any way we look at the
problem, in summary, we conclude that the district
court correctly concluded that Heron’s May 11 state-
ments were admissible. They may therefore be used in
any further proceedings conducted by the district court.
                           * * *
  For these reasons, we R EVERSE the court’s judgment of
conviction and R EMAND for further proceedings con-
sistent with this opinion.




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