United States v. Eric Kevin Mashburn, 406 F.3d 303 (4th Cir. 2005). · Go Syfert
United States v. Eric Kevin Mashburn, 406 F.3d 303 (4th Cir. 2005). Cases Citing This Book View Copy Cite
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cited 3× by 2 distinct cases, last quoted 2008 · …irrebuttably presumed involuntary at p. 306
116 citation events (116 in the last 25 years) across 37 distinct courts.
Strongest positive: State v. Shawn William Wass (idaho, 2017-06-22)
Treatment trajectory · 2005 → 2026 · click a year to view as-of
2005 2015 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) State v. Shawn William Wass
Idaho · 2017 · quote attribution · 1 verbatim quote · confidence high
justice kennedy's opinion therefore represents the holding of thé seibert court: the admissibility of postwaming statements is governed by elstad unless the deliberate 'question-first' strategy is employed.
examined Cited as authority (verbatim quote) United States v. Sanchez-Gallegos (2×) also: Cited as authority (rule)
10th Cir. · 2011 · quote attribution · 1 verbatim quote · confidence high
justice kennedy's opinion therefore represents the holding of the seibert court: the admissibility of postwarning statements is governed by elstad unless the deliberate 'question-first' strategy is employed.
discussed Cited as authority (verbatim quote) United States v. Willimas
9th Cir. · 2006 · signal: see also · quote attribution · 1 verbatim quote · confidence high
the admissibility of postwarning state- ments is governed by elstad unless the deliberate 'question- first' strategy is employed.
discussed Cited as authority (rule) People of Michigan v. Scott Jeffray Deming
Mich. Ct. App. · 2026 · confidence medium
See, e.g., Hernandez v McIntosh, 146 F4th 142 , 158-159 (CA 2, 2025); United States v Neely, 124 F4th 937, 949 (CA DC, 2024); Guillen, 995 F3d at 1120 ; United States v Hernandez, 751 F3d 538, 539-540 (CA 7, 2014); United States v Street, 472 F3d 1298, 1313 (CA 11, 2006); United States v Courtney, 463 F3d 333, 338 (CA 5, 2006); United States v Ollie, 442 F3d 1135, 1142 (CA 8, 2006); United States v Williams, 435 F3d 1148, 1157-1158 (CA 9, 2006); United States v Naranjo, 426 F3d 221, 231-232 (CA 3, 2005); United States v Mashburn, 406 F3d 303, 308-309 (CA 4, 2005); Secret v Commonwealth, 296 Va…
discussed Cited as authority (rule) United States v. Darrell Neely
D.C. Cir. · 2024 · confidence medium
See, e.g., United States v. Capers, 627 F.3d 470, 476 (2d Cir. 2010); Kiam, 432 F.3d at 532 ; United States v. Mashburn, 406 F.3d 303, 309 (4th Cir. 2005); Courtney, 463 F.3d at 338 ; United States v. Torres-Lona, 491 F.3d 750, 758 (8th Cir. 2007); United States v. Williams, 435 F.3d 1148, 1158 (9th Cir. 2006); United States v. Guillen, 995 F.3d 1095, 1120 (10th Cir. 2021); United States v. Street, 472 F.3d 1298, 1313 (11th Cir. 2006).
discussed Cited as authority (rule) United States v. El Elsheikh
4th Cir. · 2024 · confidence medium
But the Supreme Court’s reasoning for its conclusion was split and, as we’ve previously recognized, Justice Kennedy’s concurring opinion, which provided the narrowest grounds for the holding, “represents the holding of the Seibert Court.” United States v. Mashburn, 406 F.3d 303, 309 (4th Cir. 2005).
cited Cited as authority (rule) MCALLISTER v. WINSTON-SALEM POLICE DEPARTMENT
M.D.N.C. · 2023 · confidence medium
Defendant Henry here made “no specific promises of leniency.” United States v. Mashburn, 406 F.3d 303, 309 (4th Cir. 2005).
discussed Cited as authority (rule) Irby v. Warden of Evans Correctional Institution
D.S.C. · 2022 · confidence medium
But, “government agents may validly make some representations to a defendant or may discuss cooperation without rendering the resulting confession involuntary.” United States v. Mashburn, 406 F.3d 303, 310 (4th Cir. 2005) (quoting United States v. Shears, 762 F.2d 397, 401 (4th Cir. 1985)).
discussed Cited as authority (rule) United States v. Mohamad Khweis (2×)
4th Cir. · 2020 · confidence medium
“Recognizing that the pressure and isolation inherent in custodial interrogation could overcome the resilience of a suspect otherwise not inclined to incriminate himself,” United States v. Mashburn, 406 F.3d 303, 306 (4th Cir. 2005), the Supreme Court in Miranda instituted “measures to insure that the right against compulsory self-incrimination is protected,” New York v. Quarles, 467 U.S. 649, 654 (1984) (brackets omitted) (quoting Michigan v. Tucker, 417 U.S. 433, 444 (1974)); see Miranda, 384 U.S. at 478–479.
discussed Cited as authority (rule) Jones v. Lexington Medical Center
Bankr. D.S.C. · 2020 · confidence medium
“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.” United States v. Mashburn, 406 F.3d 303, 308 (4th Cir. 2005) (quoting Marks v. United States, 430 U.S. 188 , 193 (1977)).
discussed Cited as authority (rule) Secret v. Commonwealth of Virginia (2×) also: Cited "see, e.g."
E.D. Va. · 2020 · confidence medium
“Because Seibert is a plurality decision and Justice Kennedy concurred in the result on the narrowest grounds, it is his concurring opinion that provides the controlling law.” United States v. Street, 472 F.3d 1298, 1313 (11th Cir. 2006) (citing United States v. Gonzalez-Lauzan, 437 F.3d 1128 , 1136 n.6 (11th Cir. 2006) ); see also United States v. Capers, 627 F.3d 470, 476 (2d Cir. 2010); United States v. Kiam, 432 F.3d 524, 532 (3d Cir. 2006); United States v. Mashburn, 406 F.3d 303, 309 (4th Cir. 2005); United States v. Courtney, 463 F.3d 333, 338 (Sth Cir. 2006); United States v. Torre…
discussed Cited as authority (rule) People v. Krebs
Cal. · 2019 · confidence medium
U.S. v. Ray (6th Cir. 2015) 803 F.3d 244, 272 [“we adopt Seibert plurality’s multi-factor test for this Circuit and direct the district court to apply this test”] with U.S. v. Capers (2d Cir. 2010) 627 F.3d 470, 476 [“this Court joined the Eleventh, Fifth, Ninth, Third, and Eighth Circuits in applying Justice Kennedy’s approach in Seibert”]; U.S. v. Kiam (3d Cir. 2006) 432 F.3d 524, 532 ; U.S. v. Mashburn (4th Cir. 2005) 406 F.3d 303, 309 [“Justice Kennedy’s opinion therefore represents the holding of the Seibert Court”]; U.S. v. Courtney (5th Cir. 2006) 463 F.3d 333, 338 ; U…
discussed Cited as authority (rule) United States v. David Sherwood
4th Cir. · 2019 · confidence medium
Additionally, we review “the legal determination that the statement was voluntary de novo.” United States v. Holmes, 670 F.3d 586, 591 (4th Cir. 2012) (citing United States v. Mashburn, 406 F.3d 303, 306 (4th Cir. 2005)).
discussed Cited as authority (rule) United States v. Rahsaan Pearson (2×) also: Cited "see"
4th Cir. · 2019 · confidence medium
In addition, Pearson also would need to establish that either his confession was involuntary or law enforcement elicited his post-Miranda-warning statements after using “deliberately coercive or improper tactics in obtaining the initial statement.” United States v. Mashburn, 406 F.3d 303, 309 (4th Cir. 2005) (internal quotation marks omitted).
discussed Cited as authority (rule) United States v. Willis Terrance Dorsey
4th Cir. · 2018 · confidence medium
See Oregon v. Elstad, 470 U.S. 298, 314 (1985) (holding “that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion” as to any subsequent, post-warning statement); United States v. Mashburn, 406 F.3d 303, 307-10 (4th Cir. 2005) (holding that pre-warning questions will not render post-warning responses involuntary and inadmissible if there was no evidence that officer’s failure to convey Miranda warnings was deliberate or intentional and that the post-wa…
discussed Cited as authority (rule) United States v. Abu Khatallah
D.D.C. · 2017 · confidence medium
See United States v. Carter, 489 F.3d 528, 536 (2d Cir. 2007) (adopting Justice Kennedy’s “deliberate, two-step” test); United States v. Kiam, 432 F.3d 524, 532 (3d Cir. 2006) (same); United States v. Mashburn, 406 F.3d 303, 308-09 (4th Cir. 2005) (same); United States v. Courtney, 463 F.3d 333, 338 (5th Cir. 2006) (same); United States v. Briones, 390 F.3d 610, 613 (8th Cir. 2004) (same); United States v. Williams, 435 F.3d 1148, 1158 (9th Cir. 2006) (same); United States v. Street, 472 F.3d 1298, 1313 (11th Cir. 2006) (same).
discussed Cited as authority (rule) United States v. Master Giddins (2×)
4th Cir. · 2017 · confidence medium
“When reviewing the district court’s denial of a motion to suppress, we review factual findings for clear error and the legal determination that the statement was voluntary de novo.” United States v. Holmes, 670 F.3d 586, 591 (4th Cir. 2012) (citing United States v. Mashburn, 406 F.3d 303, 306 (4th Cir. 2005)).
examined Cited as authority (rule) Adrian Reyes v. Greg Lewis (3×)
9th Cir. · 2016 · confidence medium
See United States v. Capers, 627 F.3d 470, 476 (2d Cir. 2010); United States v. Torres-Lona, 491 F.3d 750, 758 (8th Cir. 2007); United States v. Street, 472 F.3d 1298, 1313 (11th Cir. 2006); United States v. Courtney, 463 F.3d 333, 338 (5th Cir. 2006); United States v. Kiam, 432 F.3d 524, 532 (3d Cir. 2006); United States v. Mashburn, 406 F.3d 303, 309 (4th Cir. 2005).
discussed Cited as authority (rule) United States v. Thomas Wooten
6th Cir. · 2015 · confidence medium
The Second Circuit, for example, held that “Seibert la[id] out an exception to Elstad for cases in which a deliberate, two-step strategy was used by law enforcement to obtain the postwarning confession.” United States v. Carter, 489 F.3d 528, 536 (2d Cir.2007) (emphasis added); see also United States v. Torres-Lona, 491 F.3d 750, 758 (8th Cir.2007); United States v. Williams, 435 F.3d 1148, 1158 (9th Cir.2006); United States v. Street, 472 F.3d 1298, 1313-14 (11th Cir.2006); United States v. Kiam, 432 F.3d 524, 532 (3d Cir.2006); United States v. Courtney, 463 F.3d 333, 338 (5th Cir.2006);…
discussed Cited as authority (rule) State v. Nightingale
Me. · 2012 · confidence medium
See, e.g., United States v. Williams, 681 F.3d 35, 41 (2d Cir.2012) (“[W]e join[ ] our sister circuits in regarding Justice Kennedy’s concurrence in Seibert as controlling.” (citing United States v. Carter, 489 F.3d 528 (2d Cir.2007))); United States v. Nunez-Sanchez, 478 F.3d 663 , 668 n. 1 (5th Cir.2007) (identifying Justice Kennedy’s concurrence as the “holding” of the Seibert Court (quoting United States v. Courtney, 463 F.3d 333, 338 (5th Cir.2006))); United States v. Street, 472 F.3d 1298, 1313 (11th Cir.2006) (“Because Seibert is a plurality decision and Justice Kennedy co…
discussed Cited as authority (rule) Jamie Aaron Kuhne v. Commonwealth of Virginia
Va. Ct. App. · 2012 · confidence medium
See United States v. Carter, 489 F.3d 528, 536 (2d Cir.2007); United States v. Naranjo, 426 F.3d 221, 231-32 (3rd Cir.2005); United States v. Mashburn, 406 F.3d 303, 309 (4th Cir.2005); United States v. Courtney, 463 F.3d 333, 338 (5th Cir.2006); United States v. Torres-Lona, 491 F.3d 750, 758 (8th Cir.2007); United States v. Williams, 435 F.3d 1148, 1157-58 (9th Cir.2006); United States v. Street, 472 F.3d 1298, 1313 (11th Cir.2006).
discussed Cited as authority (rule) State v. Johnson
S.C. Ct. App. · 2012 · confidence medium
We affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities: State v. Saltz , 346 S.C. 114, 136 , 551 S.E.2d 240, 252 (2001) ("When reviewing a trial court's ruling concerning voluntariness, this [court] does not reevaluate the facts based on its own view of the preponderance of the evidence, but simply determines whether the trial court's ruling is supported by any evidence."); United States v. Mashburn , 406 F.3d 303, 309-10 (4th Cir. 2005) (finding law enforcement officer's statement that defendant could only help himself by providing assistance to law enforcement did not …
cited Cited as authority (rule) United States v. Holmes
4th Cir. · 2012 · confidence medium
United States v. Mashburn, 406 F.3d 303, 306 (4th Cir.2005).
discussed Cited as authority (rule) Pueblo v. Millán Pacheco
prsupreme · 2011 · confidence medium
United States v. Williams, supra, págs. 1157-1158; United States v. Ollie, supra, págs. 1142 (2006); United States v. Courtney, 463 F.3d 333, 338 (5to Cir. 2006); United States v. Mashburn, 406 F.3d 303, 308-309 (4to Cir. 2005).
discussed Cited as authority (rule) Wilkerson v. State
Md. · 2011 · confidence medium
Consistent with the principle that “[w]hen 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 judgment on the narrowest grounds,” Marks v. United States, 430 U.S. 188, 193 , 97 S.Ct. 990, 993 , 51 L.Ed.2d 260, 266 (1977) (internal quotation marks and citation omitted), the overwhelming majority of courts to decide the issue post -Seibert hold that Justice Kennedy’s concurring opinion controls a Seibert-type analysis. 9 See Ro…
discussed Cited as authority (rule) Commonwealth v. Charleston
Pa. Super. Ct. · 2011 · confidence medium
See United States v. Torres-Lona, 491 F.3d 750, 758 (8th Cir.2007); United States v. Courtney, 463 F.3d 333, 338 (5th Cir.2006); United States v. Williams, 435 F.3d 1148, 1157-58 (9th Cir.2006); United States v. Street, 472 F.3d 1298, 1313 (11th Cir.2006); United States v. Naranjo, 426 F.3d 221, 231-32 (3rd Cir.2005); United States v. Mashburn, 406 F.3d 303, 308-09 (4th Cir.2005).
examined Cited as authority (rule) Ross v. State (4×) also: Cited "see"
Fla. · 2010 · confidence medium
Stewart, 388 F.3d at 1090; 34 see also United States v. Mashburn, 406 F.3d 303, 309 (4th Cir.2005) (“The admissibility of post- warning statements is governed by Elstad unless the deliberate ‘question-first’ strategy is employed.
discussed Cited as authority (rule) Carter v. State
Tex. Crim. App. · 2010 · confidence medium
United States v. Narvaez-Gomez, 489 F.3d 970, 974 (9th Cir.2007) (applying clear-error standard of review); United States v. Nunez-Sanchez, 478 F.3d 663, 668-69 (5th Cir.2007) (without deciding the matter, appearing implicitly to apply clear-error review); United States v. Naranjo, 426 F.3d 221, 226, 232 (3d Cir.2005) (applying clear-error standard of review); United States v. Mashburn, 406 F.3d 303, 309 (4th Cir.2005) (applying clear-error standard of review); Ford v. United States, 931 A.2d 1045, 1052-52 (D.C.2007) (applying clear error to the trial court's findings on remand, noting that it…
discussed Cited as authority (rule) Carter, Carl Allen
Tex. Crim. App. · 2010 · confidence medium
A specific factual finding in this regard greatly assists the Court on appellate review.43 We therefore adopt the position of those federal and state courts that have applied a highly 42 United States v. Narvaez-Gomez, 489 F.3d 970, 974 (9th Cir. 2007) (applying clear- error standard of review); United States v. Nunez-Sanchez, 478 F.3d 663, 668-69 (5th Cir. 2007) (without deciding the matter, appearing implicitly to apply clear-error review); United States v. Naranjo, 426 F.3d 221, 226, 232 (3d Cir. 2005) (applying clear-error standard of review); United States v. Mashburn, 406 F.3d 303, 309 (…
discussed Cited as authority (rule) Carter, Carl Allen
Tex. Crim. App. · 2010 · confidence medium
United States v. Narvaez-Gomez , 489 F.3d 970, 974 (9th Cir. 2007) (applying clear-error standard of review); United States v. Nunez-Sanchez , 478 F.3d 663, 668-69 (5th Cir. 2007) (without deciding the matter, appearing implicitly to apply clear-error review); United States v. Naranjo , 426 F.3d 221, 226, 232 (3d Cir. 2005) (applying clear-error standard of review); United States v. Mashburn , 406 F.3d 303, 309 (4th Cir. 2005) (applying clear-error standard of review) ; Ford v. United States , 931 A.2d 1045, 1052-52 (D.C. 2007) (applying clear error to the trial court's findings on remand, not…
discussed Cited as authority (rule) Michael Fitzroy Crosby v. Commonwealth of Virginia
Va. Ct. App. · 2009 · confidence medium
See also Panetti v. Quarterman, 551 U.S. 930, 949 (2007) (noting “[w]hen there is no majority opinion, the narrower holding controls”); United States v. Mashburn, 406 F.3d 303, 309 (4th Cir. 2005) (holding Justice Kennedy’s opinion concurred in the judgment on the narrowest grounds and is controlling; thus the “admissibility of post-warning statements is governed by Elstad unless the deliberate ‘question-first’ strategy is employed”).
discussed Cited as authority (rule) United States v. Hill
4th Cir. · 2009 · confidence medium
See Oregon v. Elstad, 470 U.S. 298, 314 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985) (holding that "absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion” as to any subsequent, post-warning statement); United States v. Mashburn, 406 F.3d 303, 307-10 (4th Cir.2005) (holding that a few pre-warning questions will not render post-warning responses involuntary and inadmissible if: (i) there was no evidence that an officer's failure to convey Miranda warnings was deli…
discussed Cited as authority (rule) United States v. Davis
W.D.N.C. · 2009 · confidence medium
Because Seibert is a plurality opinion, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” United States v. Mashburn, 406 F.3d 303, 308 (4th Cir.2005) (quoting Marks v. United States, 430 U.S. 188, 193 , 97 S.Ct. 990 , 51 L.Ed.2d 260 (1977)).
discussed Cited as authority (rule) State v. Gaw
Mo. · 2009 · confidence medium
See also United States v. Carter, 489 F.3d 528, 535 (2d Cir.2007); United States v. Courtney, 463 F.3d 333, 338 (5th Cir.2006); United States v. Ollie, 442 F.3d 1135, 1142 (8th Cir.2006); United States v. Williams, 435 F.3d 1148, 1157-58 (9th Cir.2006); United States v. Kiam, 432 F.3d 524, 532-33 (3d Cir.2006); United States v. Mashburn, 406 F.3d 303, 308-09 (4th Cir.2005); and United States v. Stewart, 388 F.3d 1079, 1090 (7th Cir.2004). 2 The trial court overruled Gaw’s motion to suppress and admitted the testimony.
discussed Cited as authority (rule) United States v. Campbell
E.D. Mich. · 2009 · confidence medium
Because Defendant was in custody and did not receive Miranda warnings, the statements elicited by Officer Connor’s questions are “irrebuttably presumed involuntary.” United States v. Pacheco-Lopez, 531 F.3d 420, 424 (6th Cir.2008) (quoting United States v. Mashbum, 406 F.3d 303, 306 (4th Cir. 2005)).
discussed Cited as authority (rule) State v. Hughes
Mo. Ct. App. · 2008 · confidence medium
We accordingly join numerous other courts which have held that Justice Kennedy’s concurring opinion supplies the standard we must apply, since it constitutes the “ ‘position taken by those Members [of the Court] who concurred in the judgments on the narrowest grounds.’ ” Marks, 430 U.S. at 193, 97 S.Ct. 990 (citation omitted); see, e.g., United States v. Carter, 489 F.3d 528, 535 (2d Cir.2007); United States v. Courtney, 463 F.3d 333, 338 (5th Cir.2006); United States v. Ollie, 442 F.3d 1135, 1142 (8th Cir.2006); United States v. Williams, 435 F.3d 1148, 1157-58 (9th Cir.2006); Unite…
discussed Cited as authority (rule) United States v. Stewart, Timothy
7th Cir. · 2008 · confidence medium
See United States v. Torres-Lona, 491 F.3d 750, 758 (8th Cir. 2007) (applying clear-error standard of review); United States v. Narvaez- Gomez, 489 F.3d 970, 974 (9th Cir. 2007) (applying clear- error standard of review); United States v. Carter, 489 F.3d 528, 536 (2d Cir. 2007) (without deciding the matter, appearing implicitly to apply de novo review); United 8 No. 06-4323 States v. Nunez-Sanchez, 478 F.3d 663, 668-69 (5th Cir. 2007) (without deciding the matter, appearing implicitly to apply clear-error review); United States v. Street, 472 F.3d 1298, 1314 (11th Cir. 2006) (without deciding…
discussed Cited as authority (rule) United States v. Stewart
7th Cir. · 2008 · confidence medium
See United States v. Torres-Lona, 491 F.3d 750, 758 (8th Cir.2007) (applying clear-error standard of review); United States v. Narvaez-Gomez, 489 F.3d 970, 974 (9th Cir.2007) (applying clear-error standard of review); United States v. Carter, 489 F.3d 528, 536 (2d Cir.2007) (without deciding the matter, appearing implicitly to apply de novo review); United States v. Nunez-Sanchez, 478 F.3d 663, 668-69 (5th Cir.2007) (without deciding the matter, appearing implicitly to apply clear-error review); United States v. Street, 472 F.3d 1298, 1314 (11th Cir.2006) (without deciding the matter, appearin…
examined Cited as authority (rule) United States v. Pacheco-Lopez (4×)
6th Cir. · 2008 · confidence medium
United States v. Mashburn, 406 F.3d 303, 306 (4th Cir.2005) (citing Oregon v. Elstad, 470 U.S. 298, 307 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985)).
discussed Cited as authority (rule) United States v. Pacheco-Lopez (2×)
6th Cir. · 2008 · confidence medium
United States v. Mashburn, 406 F.3d 303, 306 (4th Cir. 2005) (citing Oregon v. Elstad, 470 U.S. 298, 307 (1985)).
discussed Cited as authority (rule) People v. Lopez (2×)
Ill. · 2008 · confidence medium
United States v. Carter, 489 F.3d 528, 535-36 (2d Cir. 2007); United States v. Naranjo, 426 F.3d 221, 231-32 (3d Cir. 2005); United States v. Mashburn, 406 F.3d 303, 308-09 (4th Cir. 2005); United States v. Courtney, 463 F.3d 333, 338 (5th Cir. 2006); United States v. Stewart, 388 F.3d 1079, 1090 (7th Cir. 2004); United States v. Ollie, 442 F.3d 1135, 1142 (8th Cir. 2006); United States v. Williams, 435 F.3d 1148, 1157-58 (9th Cir. 2006); but see United States v. Carrizales-Toledo, 454 F.3d 1142, 1151 (10th Cir. 2006); see also United States v. Capers, No. 06 Cr. 266 (S.D.N.Y.
discussed Cited as authority (rule) People v. Lopez
Ill. · 2008 · confidence medium
United States v. Carter, 489 F. 3d 528, 535-36 (2d Cir. 2007); United States v. Naranjo, 426 F.3d 221, 231-32 (3d Cir. 2005); United States v. Mashburn, 406 F.3d 303, 308-09 (4th Cir. 2005); United States v. Courtney, 463 F.3d 333, 338 (5th Cir. 2006); United States v. Stewart, 388 F.3d 1079, 1090 (7th Cir. 2004); United States v. Ollie, 442 F.3d 1135, 1142 (8th Cir. 2006); United States v. Williams, 435 F.3d 1148, 1157-58 (9th Cir. 2006); but see United States v. Carrizales-Toledo, 454 F.3d 1142, 1151 (10th Cir. 2006); see also United States v. Capers, No. 06 Cr. 266 (S.D.N.Y.
examined Cited as authority (rule) United States v. Simmons (4×) also: Cited "see"
E.D.N.C. · 2007 · confidence medium
Based on this fundamental right, the Supreme Court in Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966) “conditioned the admissibility at trial of any custodial confession on warning a suspect of his rights ... [and] obtaining] a waiver of those rights before custodial interrogation.” United States v. Mashburn, 406 F.3d 303, 306 (4th Cir.2005).
discussed Cited as authority (rule) Commonwealth v. Calvin Lamont Bowman Jr. (2×) also: Cited "see"
Va. Ct. App. · 2007 · confidence medium
In other words, of the trial court’s two, alternative rulings, it is the court’s ruling under the subjective test that “legally constitute[s] a freestanding basis in support of the trial court’s decision.” Johnson v. Commonwealth, 45 Va. App. 113, 117 , 609 S.E.2d 58, 60 (2005). -7- *6 (9th Cir. 2007), that this “deliberateness finding is appropriately reviewed as a factual finding.” See United States v. Mashburn, 406 F.3d 303, 306-10 (4th Cir. 2005).
discussed Cited as authority (rule) United States v. Moser
4th Cir. · 2007 · confidence medium
Accordingly, *142 “[i]n reviewing the denial of [a] motion to suppress, we must accept the factual findings of the district court unless clearly erroneous, but we review de novo the conclusion of the district court that ... statements were voluntary.” United States v. Mashburn, 406 F.3d 303, 306 (4th Cir.2005).
cited Cited as authority (rule) United States v. Luis Narvaez-Gomez, AKA Manuel Gomez-Feliz
9th Cir. · 2007 · signal: cf. · confidence medium
Cf. United States v. Mashburn, 406 F.3d 303, 306 (4th Cir.2005) (in case involving pre- and posh-warning statements, only voluntariness determination was reviewed de novo).
discussed Cited as authority (rule) United States v. Narvaez-Gomez
9th Cir. · 2007 · signal: cf. · confidence medium
Cf. United States v. Mashburn, 406 F.3d 303, 306 (4th Cir. 2005) (in case involving pre- and postwarning statements, only voluntariness determination was reviewed de novo).
discussed Cited as authority (rule) Edwards v. United States (2×)
D.C. · 2007 · confidence medium
See United States v. Williams, 435 F.3d 1148, 1157-58 (9th Cir.2006) ("Although the plurality would consider all two-stage interrogations eligible for a Seibert inquiry, Justice Kennedy's opinion narrowed the Seibert exception to those cases involving deliberate use of the two-step procedure to weaken Miranda’s protections.”); United States v. Kiam, 432 F.3d 524, 532-33 (3d Cir.2006) (applying Justice Kennedy’s test in finding that law enforcement officials had not performed a deliberate two-step interrogation); United States v. Mashburn, 406 F.3d 303, 308-09 (4th Cir.2005) ("In Seibert,…
discussed Cited as authority (rule) United States v. Hernandez
5th Cir. · 2006 · confidence medium
See United States v. Ollie, 442 F.3d 1135, 1142 (8th Cir.2006); United States v. Williams, 435 F.3d 1148, 1158 (9th Cir.2006); United States v. Naranjo, 426 F.3d 221, 231-32 (3d Cir.2005); United States v. Mashburn, 406 F.3d 303, 309 (4th Cir.2005); United States v. Stewart, 388 F.3d 1079, 1086-87 (7th Cir.2004).
cited Cited as authority (rule) United States v. Carrizales-Toledo
10th Cir. · 2006 · confidence medium
United States v. Mashburn, 406 F.3d 303, 308-09 (4th Cir.2005).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Eric Kevin MASHBURN, Defendant-Appellant
03-4932.
Court of Appeals for the Fourth Circuit.
Apr 25, 2005.
406 F.3d 303
ARGUED: James B. Craven, III, Durham, North Carolina, for Appellant. Kearns Davis, Assistant United States Attorney, Office of the United States Attorney, Greensboro, North Carolina, for Ap-pellee. ON BRIEF: Anna Mills Wagoner, United States Attorney, Greensboro, North Carolina, for Appellee.
Wilkins, King, Duncan.
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Affirmed by published opinion. Chief Judge WILKINS wrote the opinion, in which Judge KING and Judge DUNCAN joined.

OPINION

WILKINS, Chief Judge:

Eric Kevin Mashburn appeals a decision of the district court denying his motion to suppress statements he made to police following his arrest for conspiracy to distribute, distribution of, and possession with the intent to distribute methamphetamine, see 21 U.S.C.A. §§ 841(a)(1), 846 (West 1999), as well as for possession of a firearm in connection with a drug trafficking offense, see 18 U.S.C.A. § 924(c)(1)(A) (West 2000). Mashburn argues that con[*305] sideration of his statements by the district court at sentencing violated the Fifth Amendment. Finding no Fifth Amendment violation, we affirm.

I.

Federal agents,' acting on information obtained through a controlled narcotics purchase, arrested Mashburn outside his home in Chatham County, North Carolina. When arrested, Mashburn was in possession of methamphetamine and a firearm. One of the agents placed Mashburn in handcuffs and held him outside his home for 10 to 15 minutes while several other agents executed a search warrant inside. Mashburn, still in handcuffs, was then brought into his home and seated.on the couch in his living room.

One of the agents told Mashburn that he was facing 10 years in prison for the drug and firearm offenses and that “the only way that [he' could] actually help [himself] in a federal system is, number one, by acceptance of responsibility, and number two is substantial assistance.” J.A. 48. Mashburn then began to respond to the agents’ questions. After “approximately two to three” questions, id. at 50, the agents realized that Mashburn had not yet been given the required Miranda warnings, see Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). [1] The agents immediately ceased questioning, and one of the agents retrieved a waiver-of-rights form from a patrol car. The agents informed Mash-burn of his Miranda rights, Mashburn signed the waiver form, and the questioning resumed. To cover the material discussed before the Miranda warnings were given, the agents asked leading questions to - which Mashburn responded “yes” or “no.” In his postwarning statements, Mashburn detailed the extent of his involvement with drug trafficking, including the amounts and sources of his purchases. [2]

Mashburn pleaded guilty to possession with the intent to distribute and distribution of methamphetamine, as well as to possession of a firearm in connection with a drug trafficking offense. He moved to suppress consideration at sentencing of his statements made before and after he was warned of and waived his Miranda rights. After a hearing, the district court denied the motion to suppress and considered the substance of the postwarning statements at sentencing. Mashburn was sentenced to 168 months’ imprisonment. [3]

II.

The Self-Incrimination Clause of the Fifth Amendment ensures that “[n]o person ... shall be compelled in any criminal ease to be a wit-ness against himself.” U.S. Const. amend. V. With “the advent[*306] of modern custodial police interrogation” there arose “an increased concern about confessions obtained by coercion” in violation of the guarantee against compelled self-incrimination. Dickerson v. United States, 530 U.S. 428, 434-35, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). Recognizing that the pressure and isolation inherent in custodial interrogation could overcome the resilience of a suspect otherwise not inclined to incriminate himself, the Supreme Court in Miranda “conditioned the admissibility at trial of any custodial confession on warning a suspect of his rights: failure to give the prescribed warnings and obtain a waiver of rights before custodial questioning generally requires exclusion of any statements obtained.” Missouri v. Seibert, 542 U.S. 600, ——, 124 S.Ct. 2601, 2608, 159 L.Ed.2d 643 (2004) (plurality opinion). Statements obtained in violation of' Miranda are admissible only in narrow circumstances. See Oregon v. Elstad, 470 U.S. 298, 307, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (holding that statements obtained in violation of Miranda are irre-buttably presumed involuntary “for purposes of the prosecution’s case in chief’); New York v. Quarles, 467 U.S. 649, 655-57, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) (establishing a narrow public-safety exception to Miranda); Harris v. New York, 401 U.S. 222, 226, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) (holding that voluntary statements obtained in violation of Miranda are admissible on cross-examination for purposes of impeachment).

Because Mashburn’s initial statements preceded the administration and his voluntary waiver of Miranda rights, the parties agree that his initial statements are irrebuttably presumed involuntary. See Elstad, 470 U.S. at 307, 105 S.Ct. 1285. The issue presented here is whether those initial, unwarned statements rendered involuntary the statements Mashburn made after receiving and waiving Miranda rights. In reviewing the denial of Mash-burn’s motion to suppress, we must accept the factual findings of the district court unless clearly erroneous, but we review de novo the conclusion of the district court that Mashburn’s postwarning statements were voluntary. See United States v. Braxton, 112 F.3d 777, 781 (4th Cir.1997) (en banc).

A.

In Elstad, the Supreme Court held that “[a] subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.” Elstad, 470 U.S. at 314, 105 S.Ct. 1285. There, police officers questioned Michael Elstad about an alleged burglary without first administering Miranda warnings. See id. at 301, 105 S.Ct. 1285. Seated in his living room, Elstad admitted to the officers that he was present when the burglary occurred. See id. The officers then took Elstad to police headquarters and, approximately one hour later, advised him of his Miranda rights. See id. After knowingly and voluntarily waiving those rights, Elstad gave a full confession. See id. At trial, Elstad moved to suppress his confession, arguing that his prior unwarned statement “let the cat out of the bag” and “tainted the subsequent confession as fruit of the poisonous tree.” Id. at 302, 105 S.Ct. 1285 (internal quotation marks omitted). The trial court admitted the confession, but the Oregon Court of Appeals reversed. See id. at 302-03, 105 S.Ct. 1285. “Regardless of the absence of actual compulsion,” the court of appeals explained, “the coercive impact of the unconstitutionally obtained statement remains, because in a defendant’s mind it has sealed his fate.” Id. at 303, 105 S.Ct. 1285 (internal quotation marks omitted).

[*307] After the Oregon Supreme Court denied further review, the United States Supreme Court granted certiorari and reversed. See id. at 303, 318, 105 S.Ct. 1285. The Court first rejected application of the “fruit of the poisonous tree” doctrine—familiar from the Fourth Amendment context, see Taylor v. Alabama, 457 U.S. 687, 694, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982); Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) — to voluntary, warned statements that come on the heels of unwarned but otherwise voluntary statements. See Elstad, 470 U.S. at 304-09, 105 S.Ct. 1285. Noting the “fundamental differences between the role of the Fourth Amendment exclusionary rule and the function of Miranda in guarding against the prosecutorial use of compelled statements as prohibited by the Fifth Amendment,” id. at 304, 105 S.Ct. 1285, the Court deemed it

an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period,

id. at 309, 105 S.Ct. 1285. Therefore, the Court ruled that “[t]hough Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent [warned] statement should turn ... solely on whether it is knowingly and voluntarily made.” Id.

The Court then rejected the “cat out of the bag” theory embraced by the state court. See id. at 309-14, 105 S.Ct. 1285. The Court first noted that even in extreme cases “in which police forced a full confession from the accused through unconscionable methods of interrogation, the Court has assumed that the coercive effect of the confession could, with time, be dissipated.” Id. at 311-12, 105 S.Ct. 1285. The Court explained that “the causal connection between any psychological disadvantage created by [an earlier] admission and [the] ultimate decision to cooperate is speculative and attenuated at best.” Id. at 313-14, 105 S.Ct. 1285. Therefore, the Court ruled that “absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion” as to any subsequent, warned statement. Id. at 314, 105 S.Ct. 1285.

B.

Last Term, in Seibert, the Court addressed the admissibility of statements obtained through a two-step police protocol: first, intentionally withholding Miranda warnings from a suspect, questioning the suspect until securing a confession; then obtaining a waiver of Miranda rights from the suspect and covering the same material using leading questions. See Seibert, 124 S.Ct. at 2605-06, 2608-09 (plurality opinion). This tactic, termed “question-first,” was designed “to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed.” Id. at 2610. Deeming it “absurd to think that mere recitation of the litany suffices to satisfy Miranda in every conceivable circumstance,” a four-justice plurality considered it “likely that if the interrogators employ the technique of withholding warnings until after interrogation succeeds in eliciting a confession, the warnings will be ineffective in preparing the suspect for successive interrogation, close in time and similar in content.” Id.

The plurality distinguished Elstad, characterizing “the living room conversation” at issue there “as a good-faith Miranda [*308] mistake, not only open to correction by careful warnings before systematic questioning ..., but posing no threat to warn-first practice generally.” Id. at 2612. In the plurality’s view, the admissibility of warned statements that follow on the heels of unwarned statements should depend “on whether Miranda warnings delivered midstream could be effective enough to accomplish their object,” taking into account

the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.

Id. Applying these factors to the question-first protocol, the plurality concluded that the Miranda warnings delivered midstream would not have adequately conveyed to the suspect “that she retained a choice about continuing to talk,” and the statements obtained thereby were inadmissible. Id. at 2613.

Justice Kennedy, concurring in the judgment, added the fifth vote for suppression. In his view,- the plurality’s multi-factor test, which would apply to both intentional and unintentional two-stage interrogations, “cut[ ] too broadly.” Id. at 2616 (Kennedy, J., concurring in the judgment). Instead, he believed that “[t]he admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed.” Id. If so, he explained, “postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made.” Id. 4 Because no curative steps had been taken in Seibert, he deemed the postwarning statements inadmissible. See id.

C.

Because none of the opinions in Seibert garnered the votes of five Justices, the parties invite us to examine the individual opinions in both Elstad and Seibert (as well as which Justices joined each opinion) to predict how the Court would resolve the issue before us. We are mindful, however, that our duty “is not to predict what the Supreme Court might do but rather to follow what it has done.” West v. Anne Arundel County, 137 F.3d 752, 757 (4th Cir.1998). “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.” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (internal quotation marks omitted).

In Seibert, Justice Kennedy concurred in the judgment of the Court on the narrowest grounds. Unlike the plurality opinion which announced a multi-factor test that would apply to both intentional and unintentional two-stage interrogations, see Seibert, 124 S.Ct. at 2612 (plurality opinion), Justice Kennedy’s concurring opinion set forth “a narrower test applicable only in the infrequent case ... in[*309] which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning,” id. at 2616 (Kennedy, J., concurring in the judgment). Justice Kennedy’s opinion therefore represents the holding of the Seibert Court: The admissibility of postwarning statements is governed by Elstad unless the deliberate “question-first” strategy is employed. [5] See id. If that strategy is deliberately employed, postwarning statements related to the substance of prewarning statements must be excluded unless curative measures are taken before the post-warning statements are made. See id.; accord United States v. Stewart, 388 F.3d 1079, 1086, 1090 (7th Cir.2004) (holding that, under Marks, Justice Kennedy’s opinion provided the applicable rule); Reinert v. Larkins, 379 F.3d 76, 91 (3d Cir.2004) (holding that Seibert did not apply because the failure to give Miranda warnings “seem[ed] much more likely to have been a simple failure to administer the warnings rather than an intentional withholding that was part of a larger, nefarious plot”). But cf. United States v. Fellers, 397 F.3d 1090, 1098 (8th Cir.2005) (applying the plurality’s test but finding both the plurality’s and Justice Kennedy’s tests satisfied).

D.

Here, the district court found no evidence that the agents’ failure to convey Miranda warnings to Mashburn was deliberate or intentional. See J.A. 85 (“[T]he Court finds no intent in this case on the part of [Agent] Brown.”); id. (“The Court can’t find ... any intent to do wrong.”); id. at 86 (“I do not find it in this case, that it was inappropriate conduct.”). Therefore, the admissibility of Mashburn’s statements is governed by Elstad.

Elstad instructs that “absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion” as to any subsequent, post-warning statement. Elstad, 470 U.S. at 314, 105 S.Ct. 1285. Rather, “[t]he relevant inquiry is whether, in fact, the second statement was also voluntarily made.” Id. at 318, 105 S.Ct. 1285.

Mashburn concedes that his second, postwarning statement “was certainly voluntary.” Appellant’s Br. at 17. He argues, however, that the agents obtained his initial, prewarning statement using the deliberately coercive or improper tactics alluded to in Elstad. See Elstad, 470 U.S. at 314, 105 S.Ct. 1285. Specifically, he contends that his initial statement was “the product of an implied threat/promise,” Appellant’s Br. at 18, because the “agents sat [him] down and told him he was in very serious trouble, looking at five years for the gun on top of five years for the methamphetamine,” id. at 14, and that the “only way that [he could] actually help [himself] in a federal system is, number one, by acceptance of responsibility, and number two is substantial assistance,” J.A. 48. We reject this contention.

“[G]overnment agents may validly make some representations to a defendant or may discuss cooperation without rendering the resulting confession involuntary.” United States v. Shears, 762 F.2d 397, 401 (4th Cir.1985). Here, the agents made no specific promises of leniency in exchange for Mashburn’s statement. See id. at 402 & n. 5 (discussing circumstances[*310] under which specific promises, if not kept, could render a statement involuntary). Rather, the agents simply informed Mash-burn of the gravity of his suspected offenses and the benefits of cooperation under the federal system. Cf. United States v. Pelton, 835 F.2d 1067, 1073 (4th Cir.1987) (“General encouragement to cooperate is far different from specific promises of leniency.”). Any coercion that Mash-burn may have felt was not the product of official action, but rather the consequence of the severity of the offenses he chose to commit. See Elstad, 470 U.S. at 304-05, 105 S.Ct. 1285 (explaining that the Fifth Amendment is not “concerned with moral and psychological pressures to confess emanating from sources other than official coercion”). We hold that Mashburn’s postwarning statements were voluntary and properly considered by the district court.

III.

For the reasons stated above, we affirm the decision of the district court.

AFFIRMED

1

. The warnings required by Miranda are that a suspect has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Miranda, 384 U.S. at 479.

2

. The record is uncleár as to what exactly Mashburn said before he received his Miranda warnings. Mashburn's motion to suppress indicates that, before receiving Miranda warnings, he talked about the quantities of drugs in which he had been dealing. Special Agent Jeff Brown testified at the suppression hearing that Mashburn “pretty well told us what we wanted to know" before he was given his Miranda warnings. J.A. 49. It is clear from the record, however, that the post-warning statements left none of the prewarn-ing statements uncovered.

3

. Mashburn does not argue that his sentence was imposed in violation of United States v. Booker, - U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

4

. In Justice Kennedy’s view, such curative measures "should be designed to ensure that a reasonable person in the suspect's situation would understand the import and effect of the Miranda warning and of the Miranda waiver”' — for example, “a substantial break in time and circumstances” between the two statements, or "an additional warning that explains the likely inadmissibility of the pre-warning custodial statement.” Seibert, 124 S.Ct. at 2616 (Kennedy, J., concurring in the judgment).

5

. Because Mashburn conceded that the question-first strategy was not deliberately employed by the agents here, we need not reach the issue of which party bears the burden of proving whether the strategy was deliberately employed.