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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
FRANKFORT

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

UNITED STATES OF AMERICA PLAINTIFF

V. RESPONSE OF UNITED STATES IN

OPPOSITION TO MOTION TO SUPPRESS

MICKY RIFE DEFENDANT

* * * * *

The United States responds to the Defendant’s Motion to Suppress (DE # 45) by

requesting the Court to deny the Defendant’s motion. Alternatively, the United States

requests the Court to schedule an evidentiary hearing on the Defendant’s Motion to

address the factual disputes.

I. INTRODUCTION AND STATEMENT OF CASE

On February 7, 2019, an indictment was returned against the Defendant charging

him with two counts of violating 18 U.S.C. § 2423(c). Both counts of the Indictment

allege the Defendant engaged and attempted to engage in illicit sexual conduct in a

foreign place, specifically, engaging in sexual acts with minors while traveling and/or

residing in Cambodia. DE # 12: Indictment.

In September 2012, the Defendant traveled to Cambodia and soon after, with no

education, experience, or other qualifications, found a job teaching young children. Id.;

testimony of S.A. Mike Romagnoli at Detention Hearing. From approximately

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September 2012 until December 2018, the Defendant was teaching children as young as

pre-kindergarten. Id. Allegations of his sexual misconduct of students began as early as

2013 and persisted until his employment was terminated for “mishandling students” in

December 2018. Id. at ¶ ¶ 7 – 9, 19; testimony of SA Romagnoli at Detention Hearing.

Homeland Security Investigation agents first learned of an identified minor victim

in February 2018 (“Minor Victim 1” or “MV1”). Id. at ¶ ¶ 11-12. Minor Victim 1’s

mother reported that in approximately June of 2015, when MV1 was four years old, MV1

was diagnosed with a vaginal infection. Id. On the return trip home from the doctor

following this diagnosis, MV1 reported to her mother that the pain she had when

urinating was a result of the Defendant touching her vagina. Id. In an interview in 2018,

MV1 reported that the Defendant would throw her into the air and touch her in her groin

area, underneath her clothing. Id. She stated he would use his hand and “five fingers” to

touch underneath her panties and “inside her.” Id.

In March 2018, a second minor victim was identified (“Minor Victim 2” or

“MV2”). Id. at ¶ 17. Minor Victim 2 was interviewed in March 2018 and April 2018

and reported that the Defendant would slip his hand into her skirt when carrying her and

would put his hand under her panties and inside her. Id. at ¶ 18. Like MV1, MV2

reported that the Defendant would touch her while playing with her, placing his hand on

the inside of her vagina. MV2 reported that this happened “many times.” Id. at ¶ 17;

Testimony of S.A. Mike Romagnoli at Detention Hearing.

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Special Agent Mike Romagnoli of the Department of Homeland Security (DHS) –

Homeland Security Investigations (HSI), began his investigation of the Defendant in May

2018, based upon a referral from HSI in Phnom Penh, Cambodia. The Defendant’s last

address known to investigators before he departed the United States was Salyersville,

Kentucky, which is located within the Eastern District of Kentucky. While the Defendant

was seemingly in Cambodia, the Defendant’s driver’s license was renewed in Kentucky.

In order to locate the Defendant’s twin brother to ask about the Defendant’s driver’s

license, SA Romagnoli and Kentucky State Police (KSP) Sgt. Hazelett interviewed the

Defendant’s father on June 27, 2018, in Magoffin County, Kentucky. DE # 45, Def. Ex.

2, Report of Investigation (ROI) 2 of SA Romagnoli.

The Defendant returned to the United States in December 2018. Affidavit for

Criminal Complaint, DE # 1-1, at ¶ 19. As stated by the Defendant in his Motion (DE

# 45, at p. 2), SA Romagnoli and Sgt. Hazelett interviewed the Defendant’s mother on

December 14, 2018, at her home in Elizabethtown, Kentucky. DE #45, Def. Ex. 3, ROI 5

of SA Romagnoli. The Defendant’s mother refused to open the door of her residence;

instead, she spoke to the agents through a window. Id. The agents asked about the

Defendant’s whereabouts and told her “they needed to discuss Mr. Rife’s driver’s license

which had been renewed while Mr. Rife was in Cambodia apparently by his twin brother,

Ricky.” DE # 45, at p. 2. The agents asked the Defendant’s mother to contact them if

she heard from the Defendant or his brother because “the driver’s license needed to be

straightened out.” Def. Ex. 3, at p. 2. Contrary to what the Defendant states, the

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Defendant’s mother was not told that the Defendant could not renew his license without

speaking to law enforcement or that agents would block any renewal of the license, but

rather that there might be issues if the Defendant tried to renew his license since fraud

was suspected.

After SA Romagnoli and Sgt. Hazelett spoke with the Defendant’s mother, the

Defendant called KSP multiple times. On some occasions, the Defendant spoke directly

to a KSP secretary or Sgt. Hazelett or SA Romagnoli, and on some occasions, the

Defendant left messages. On two occasions, SA Romagnoli spoke to the Defendant

directly on the phone. Both of the calls were initiated by the Defendant. The Defendant

asked SA Romagnoli if he could come to KSP to meet about the driver’s license issue.

SA Romagnoli provided him directions and a description of the building. The Defendant

was the one to choose the week, day of the week, and time of the day for the meeting.

Additionally, the Defendant chose to come accompanied by his mother.

As the Defendant states, he met with SA Romagnoli at the KSP Records and

Technology Center in Frankfort, Kentucky. DE # 45, at p. 3. The KSP Records and

Technology Center is nothing like a typical police station or KSP Post. Although located

not far from KSP Post 12, the Records and Technology Center has a separate entrance

from KSP Post 12, it is separated from Post 12 by at least the length of a football field,

and most of the employees are civilians, not sworn law enforcement officers. The

building is open to the public to obtain records and permits. The law enforcement

officers that are assigned to that building are in plain clothes and not in uniforms.

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Although it has a secure entrance, in that only those persons who check in at the public

entrance are permitted to enter the interior spaces of the building, anyone inside the

building may leave without being “buzzed out.” Cf. DE #45, at p. 10.

As the Defendant points out in his Motion, SA Romagnoli’s report indicates “that

the meeting occurred in the law library in the building.” Id. The law library has no

windows, but based on the layout of the building, very few rooms have windows. The

Defendant and his mother actually met KSP Det. Anthony Gatson in the lobby of the

public entrance to the KSP Records and Technology Center. DE #45, Def. Ex. 4, ROI 7

of SA Romagnoli, at p. 1. The Defendant was provided an opportunity to use the

restroom and was shown where it was by another plain clothes KSP Sergeant. SA

Romagnoli was waiting in the law library. SA Romagnoli’s report indicates that the

Defendant “sat closest to the door at a table in the center of the room with SA Romagnoli

sitting next to him and Det. Gatson sitting in the chair farthest from the door.” DE # 45,

at p. 3. The Defendant disputes the seating arrangement described by SA Romagnoli; he

claims that “he was at the opposite end of the table farthest from the door, seated between

SA Romagnoli and Det. Gatson, with one of the two between [him] and the door.” Id 1

Regardless, both accounts of the facts indicate that the Defendant was not in an

interrogation room nor was he physically restrained in any way.

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If the Court believes this discrepancy impacts the resolution of the Defendant’s Motion to Suppress, the United
States respectfully requests an evidentiary hearing prior to the Court’s ruling.
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As stated in the Defendant’s Motion, after he “was asked about renewing his

driver’s license”, and stating that his “brother appeared in the photo while [he] was in

Cambodia,” SA Romagnoli’s “Report state[d]:”

At this point RIFE was instructed that it was against the law
to lie to federal agents. SA Romagnoli provided RIFE with his
business card to ensure that RIFE realized that he was speaking
with a federal agent. SA Romagnoli told RIFE that he was
probably realizing that this interview was about more than
just his driver’s license. RIFE said he was starting to realize
that, and he agreed to be truthful and to continue the interview.
Id. (emphasis added by Defendant). (DE # 45, at p. 3).

As is clear from this excerpted portion of the report, the Defendant was given an

opportunity to stop the interview once it was clear that the interview was about more than

his driver’s license, but he opted to continue. Id. Approximately one hour after the

interview began, the Defendant was offered water and was once again asked if he was

willing to continue to talk. Def. Ex. 4, at p 4. The Defendant stated he would like some

water and stated that he was willing to continue to talk and make a recorded statement.

Id. At that point, there was an approximate 15 minute break where SA Romagnoli went

to get the Defendant water and Det. Gatson went to get the recorder and the advice of

rights form. Id. The Defendant was provided with water and after the recording began,

he was read his Miranda warnings, and signed the rights form, indicating once again that

he was willing to continue talking. Id.; Def. Ex. 5, Recording of Statement. The

interview ended approximately 48 minutes later. DE #45, at p. 5.

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II. ARGUMENT

After calling several times to set-up and confirm the appointment, the Defendant

chose the date and time to voluntarily speak with agents at the KSP Records and

Technology Center in Frankfort, Kentucky. At no point during his statements was the

Defendant in custody, and his voluntary participation in the interview was confirmed

several times throughout his statements. On at least three separate occasions after the

Defendant’s interview began, he was specifically asked and then acknowledged that he

wished to continue speaking: 1) when SA Romagnoli informed the Defendant that SA

Romagnoli was a federal agent and clarified the interview was about more than the

license; 2) when the Defendant was asked if he was willing to make a recorded statement;

and 3) after the break, when the Defendant was read his rights and he signed the rights

waiver. Providing the Defendant his Miranda warnings halfway through the interview

did not convert his non-custodial interview into a custodial one. On the contrary, the

Miranda warnings reaffirmed that the Defendant could choose not to talk to law

enforcement officers and discontinue talking at any time. Because the interview was

non-custodial and the Defendant voluntarily decided to speak to the agents, both his pre-

and post-Miranda statements should be admitted and his Motion to Suppress should be

denied.

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A. The Entire Interview was Non-Custodial and a Reasonable Person

Would Have Believed They Were Free to Leave

The agents did not have to provide the Defendant with a Miranda warning during

the Defendant’s statement because he was not in custody. “[T]he obligation to administer

a Miranda warning to a suspect only arises ‘where there has been such a restriction on a

person’s freedom as to render him ‘in custody.’’” United States v. Swanson, 341 F.3d

524, 528 (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). To determine if a

custodial interrogation exists, there are two essential questions: 1) what were the

circumstances surrounding the interrogation; and 2) given those circumstances, would a

reasonable person have felt he was not at liberty to terminate the interrogation and leave.

United States v. Malcolm, 435 F. App’x 417, 420 (quoting Coomer v. Yukins, 533 F.3d

477, 485 (6th Cir. 2008)). Here, the circumstances demonstrate that a reasonable person

would have felt he was at liberty to terminate the interrogation and leave.

As the Defendant points out, the factors to examine include whether the place of

questioning was hostile or coercive, the length of questioning, whether the suspect

possessed unrestrained freedom of movement during questioning, and whether the

suspect initiated contact with the police. Id. at 529; DE #45, at p. 8. While law

enforcement agents made the initial contact with the Defendant’s mother, it was the

Defendant who contacted agents multiple times and set the date and time for the meeting.

It was the Defendant who decided to come to KSP’s Records and Technology Center in

Frankfort, Kentucky for the interview. And it was the Defendant who decided to have his

mother drive him to Frankfort for that meeting. The Defendant was questioned in a law
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library in a building with civilians and non-uniformed law enforcement agents, which is

neither hostile nor coercive. Even if the questioning had occurred in an interrogation

room in a typical police station, Miranda warnings would not necessarily be required.

See California v. Beheler, 463 U.S. 1121, 1125 (1983) (“we have explicitly recognized

that Miranda warnings are not required simply because the questioning takes place in the

station house, or because the questioned person is one whom the police suspect.”);

Oregon v. Mathiason, 429 U.S. 492 (reversing order suppressing the confession because

of the lack of a custodial interrogation when defendant called a state police officer after

receiving a note from the officer asking him to call, met the officer at the station, and

confessed after being taken into an office room when told he was a suspect). During the

entirety of the interview, the Defendant “was not handcuffed or physically restrained,

facts which weigh against a custodial interrogation.” Malcolm, 435 Fed. App’x at 421.

The Defendant was only questioned for a total of about two hours (including a break), in

the middle of the day, scheduled based on his preference, and agreed to keep talking after

being asked several times about his willingness to continue. See Ledbetter v. Edwards,

35 F.3d 1061, 1069-70 (6th Cir. 1994) (district court erred when finding confession

involuntary based on questioning from midnight through 3 am and only partially

recorded).

The fact that agents hoped to arrest him at the conclusion of the interview is

irrelevant to the inquiry about whether the interview itself was custodial. As the

Defendant points out, the custody determination “depends on the objective circumstances

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of the interrogation, not on the subjective views harbored by either the interrogating

officers or the person being questioned.” Stansbury v. California, 511 U.S. 318, 323

(1994); DE #45, at p. 7; see also Beheler, 463 U.S. at 1124-25 (explaining that a

noncustodial situation does not become custodial simply because the police may

ultimately cause the suspect to be charged with a crime or know details about the suspect

prior to the interview). Whether or not the Defendant appreciated that SA Romagnoli

was a federal agent and when is similarly irrelevant. However, if the Defendant knew

that the interview was about more than his driver’s license and was nervous about

speaking with agents (possibly based on his own guilt and fear of being caught), and yet

still decided to voluntarily appear and talk with the agents about multiple topics, then it

demonstrates further the voluntariness of his statements. See Malcolm, 435 F. App’x at

421 (noting that defendant voluntarily appeared for the interview) (citing Oregon v.

Mathiason, 429 U.S. 492, 495 (same)). Even when SA Romagnoli made clear that the

Defendant understood he was speaking with a federal law enforcement agent and that the

interview was about more than the driver’s license, the Defendant re-affirmed his

willingness to still talk with the agents. The Defendant could have stated he did not want

to continue answering questions and could have walked out the door. The agents may

have had to decide whether or not to place the Defendant under arrest at that point, but

because the Defendant was willing to still talk, they did not have to make that

determination. Further, even if the Defendant did not know the interview was about more

than his license, the fact that the agents’ proffered reason for wanting to speak to him was

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not “entirely truthful” does not convert a non-custodial interview into a custodial one.

Malcolm, 435 F. App’x at 418 (Miranda did not attach because interview non-custodial

when defendant came to law enforcement office and met in windowless room with agents

on either side of him despite agents informing defendant they wanted to get him “up to

speed” on the arson case even when they suspected he had started the fire); see also

Ledbetter, 35 F.3d at 1069 (“Neither mere emotionalism and confusion, nor mere trickery

will alone necessarily invalidate a confession.”) (internal citations omitted).

B. A Precautionary Miranda Warning Did Not Convert the Non-Custodial

Interview Into a Custodial Interview

For the reasons stated above, the Defendant’s interview both prior to and after the

Miranda warnings was non-custodial. When the Defendant was provided with Miranda

warnings, he knowingly and voluntarily waived his rights, and thus all statements made

are admissible. The Defendant spends several pages citing why “Miranda in the middle”

warnings are ineffective, however, all of the cases he cites are inapposite. For each of

the cited cases that found the warnings ineffective, the defendant was either under arrest

or otherwise physically restrained prior to the Miranda warnings, and the defendant was

under arrest at the time the Miranda warnings were delivered. DE #45 at 14-19. Neither

circumstance applies here. Missouri v. Seibert, 542 U.S. 600, 604-05 (2004) (defendant

was arrested and taken to the police station and questioned for 30-40 minutes prior to

Miranda); United States v. Ray, 803 F.3d 244, 252-53, 268 (6th Cir. 2015) (during a

search warrant at his house, defendant made statements while he was handcuffed and

then made statements after arrest at the police station); United States v. Pacheco-Lopez,
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531 F.3d 420, 422-23 (6th Cir. 2008) (during a search warrant, defendant made

statements while he was handcuffed at the scene both before and after Miranda).

Here, the Defendant remained free of any physical restraint and free to end

questions both before and after the warnings. The Miranda warnings served to reinforce

to the Defendant (and any reasonable person) that he was free to not answer questions

and end his interview. United States v. Lewis, 556 F.2d 446, 449 (6th Cir. 1977)

(“Moreover, we reject the appellant’s suggestion that the very giving of Miranda rights

helped produce a custodial interrogation. The precaution of giving Miranda rights in

what is thought could be a non-custodial interview should not be deterred by interpreting

the giving of such rights as a restraint on the suspect, converting a non-custodial

interview into a custodial interrogation for Miranda purposes). The Defendant never

demonstrated a reluctance to speak and on the contrary, the Defendant’s waiver of his

Miranda warnings demonstrate that he understood his rights and was still willing to talk.

CONCLUSION

The United States respectfully requests this Court to deny the Defendant’s motion

or alternatively, to schedule an evidentiary hearing so the Court may make necessary

factual findings prior to ruling.

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Respectfully submitted,

ROBERT M. DUNCAN, JR.

UNITED STATES ATTORNEY

By: s/David A. Marye

Assistant United States Attorney
260 W. Vine Street, Suite 300
Lexington, Kentucky 40507-1612
(859) 685-4873
FAX (859) 233-2747
David.Marye@usdoj.gov

Lauren S. Kupersmith
Trial Attorney
U.S. Department of Justice, Criminal Division
Child Exploitation & Obscenity Section
1400 New York Avenue, N.W.
Washington, D.C. 20530
202-514-1564 (office)
lauren.kupersmith@usdoj.gov

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CERTIFICATE OF SERVICE

I hereby certify that on July 3, 2019, I electronically filed the foregoing with the
clerk of the court by using the CM/ECF filing system, which will send an electronic
notice to counsel of record.

/s/ Lauren S. Kupersmith

Trial Attorney
U.S. Dept. of Justice, Crim. Div.
Child Exploitation & Obscenity Section

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