United States v. Zabel, No. 21-5766 (6th Cir. 2022)
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Rangers, responding to an incident at Mammoth Cave, encountered a female technician who was monitoring a cave restoration project. She explained that Zabel, a contractor, had pinned her against a wall and attempted to kiss her, grabbed her buttocks and breasts, and exposed his penis. The rangers used an elevator to enter the cave and walked 25 minutes through dark, narrow passages until they found Zabel. They recorded the ensuing encounter. The rangers introduced themselves and explained that he was “not under arrest,” was “free to go,” and that he did not have to talk to them. Zabel made several incriminating statements, including that he had grabbed the woman’s butt and showed her his penis, which “may have been a little” erect.
Zabel, indicted under 18 U.S.C. 2244(b), unsuccessfully moved to suppress those statements, arguing that the rangers improperly solicited those statements during a custodial interrogation without reciting his Miranda rights. Zabel then pled guilty, The PSR sought an upward variance and an upward departure (U.S.S.G. 5K2.8) for Extreme Conduct because Zabel’s behavior was more egregious than typical abusive sexual contact. The district court recessed so that Zabel and his counsel could review recorded statements by the victim and provided Zabel an opportunity to testify. Zabel declined. The Sixth Circuit affirmed a sentence of 18 months’ imprisonment plus a life term of supervised release. The court upheld the denial of the motion to suppress and the procedural and substantive reasonableness of his custodial sentence and term of supervised release.
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