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March 24, 2026 Get Citation Alerts Download PDF Add Note

United States v. Henry Guice, Jr.

Court of Appeals for the Eleventh Circuit

• Citations: None known
• Docket Number: 24-13110
• Precedential Status: Non-Precedential

• Nature of Suit: NEW

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (24K)

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Combined Opinion

USCA11 Case: 24-13110 Document: 30-1 Date Filed: 03/24/2026 Page: 1 of 16

NOT FOR PUBLICATION

In the
United States Court of Appeals
For the Eleventh Circuit

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No. 24-13110
Non-Argument Calendar

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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus

HENRY GUICE, JR.,
Defendant-Appellant.

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Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:23-cr-00379-RAH-SMD-1

---

Before JORDAN, BRANCH, and KIDD, Circuit Judges.
PER CURIAM:
Henry Guice, Jr., appeals his drug-related convictions,
arguing that the district court erred in denying his motion to
suppress the self-incriminating statements that he made to law
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2 Opinion of the Court 24-13110

enforcement without being advised of his rights under Garrity v.
New Jersey, 385 U.S. 493 (1967). After review, we affirm.
I. Background
A federal grand jury indicted Guice on one count of
conspiracy to distribute methamphetamine in violation of
21 U.S.C. § 846 and one count of possession with intent to
distribute methamphetamine in violation of 21 U.S.C. § 841 (a)(1).
Thereafter, Guice filed a motion to suppress the self-incriminating
statements he previously made to police. He argued that, as a
public employee of the Alabama Department of Corrections
(“ADOC”) when the drugs were discovered, an ADOC
administrative policy required him to cooperate with the
underlying investigation or risk facing discipline, including possible
termination of employment, and the police failed to inform him
that as a public employee he had a right against self-incrimination
under Garrity. Accordingly, he maintained that his statements
were coerced and involuntary.
Following the government’s response, a magistrate judge
held an evidentiary hearing on the motion. Guice called W.D.
Favor, an investigator with the law enforcement service division of
the ADOC, as a witness who testified to the following. Favor’s
division investigated criminal activity within the ADOC, while the
separate Inspector General’s Office division handled administrative
investigations or discipline cases. On June 20, 2023, a K-9 unit at
Alabama’s Staton Correctional Facility notified Favor that a dog
had “made a hit” on Correctional Officer Guice’s car in the prison’s
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24-13110 Opinion of the Court 3

parking lot. A search of the car revealed narcotics and drugs were
also found on Guice’s person. Guice was placed in handcuffs and
transported to Favor’s office for questioning.1 Upon arrival at
Favor’s office, Favor removed the handcuffs and read Guice his
Miranda 2 rights, and Guice signed the form waiving his Miranda
rights. Favor explained that he never told Guice that he had to
speak with him.
Favor testified that, at the time of the investigation, he was
generally familiar with ADOC regulations that governed ADOC
employees like Guice. Administrative Regulation 208, in relevant
part, provided that “[a]ll ADOC employees shall adhere to the
following standards,” including “[c]ooperate with investigations to
include, but not limited to, providing information or
verbal/written statements in connection with employment,
investigation, or incident reports.” And ADOC policy further
provided that if an employee violated the regulations, the
employee “could be subject to [various] levels of discipline, from a
warning all the way up to dismissal.” The Commissioner of ADOC
had the ultimate discretion to determine the appropriate
punishment for a violation of ADOC policy, procedures, and
regulations. Favor maintained that because his investigation was
criminal, not an internal administrative investigation, Regulation
208 did not apply and Guice could have opted not to make a

1 Favor explained that the law enforcement division’s office was separate from

the prison grounds and was located “about a quarter mile away.”
2 Miranda v. Arizona, 384 U.S. 436 (1966).
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4 Opinion of the Court 24-13110

statement without ADOC punishment. Nevertheless, he admitted
that “theoretically” “any violation” of ADOC policy “could result
in [an] employee’s dismissal.”
Favor admitted that he was aware of a waiver of rights form
based on Garrity that was similar to the Miranda waiver form, but
he had never used that form in his almost 30 years of service
because he never worked on internal or administrative
investigations. He reiterated that he did not give Guice the Garrity
form because Favor did not “work in the inspector general’s office”
and his investigation was criminal not administrative. Favor
confirmed that his colleague Agent Charday Jackson was also
present for Guice’s interrogation.
The government then introduced audio recordings of
Guice’s interviews and played them for the court. At the beginning
of the interview, Agent Favor stated that the “case charge” was
promoting prison contraband in the second degree and possession
of methamphetamine, and Favor orally reviewed Guice’s Miranda
rights. Favor explained that it was completely up to Guice if he
decided to speak with Favor and that Guice could cease answering
questions at any time. Guice indicated that he understood and
executed the waiver. Initially, Guice denied knowing how the
drugs got into his vehicle. After detailing his movements for the
previous 24 hours, Guice asked, “If I resign, I ain’t going to be
fired?” Favor responded, “that is something totally different from
what I do, but yes, you can resign.” When Guice expressed
frustration with the interview and that he did not want to answer
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24-13110 Opinion of the Court 5

any more questions, Favor reiterated that Guice could stop
answering questions at any time and that Guice had the right not
to talk to Favor. Favor then explained that “this [was] going to go
to court” regardless and that Guice was “going to jail today.” Guice
responded that he thought he would get a chance to resign first,
and Favor explained that Guice’s resignation had “nothing to do
with the criminal part.” Favor stated that Guice’s employment had
“nothing to do” with Favor and that Favor was a police officer.
Favor reiterated that he had “nothing to do with the admin side of
things,” that his job concerned “the criminal side of things,” and
that he was there to talk about the two felonies that Guice was
facing. Guice indicated that he wanted to stop the interview, and
Favor complied. Favor testified that he left the room to complete
paperwork and about 15 minutes later, Agent Jackson informed
him that Guice wanted to talk.
Agent Jackson testified that, after Guice terminated the first
interview and exited the room, Guice asked her “what the process
was.” She informed Guice that Agent Favor was securing warrants
and that Guice would be transported to the county jail based on
those warrants. Guice again asked her “about the process of him
resigning,” and she reiterated “what Agent Favor had already
said . . . about the criminal aspect versus the administrative aspect
and [she and Agent Favor] were only solely concerned with the
criminal investigation and that the administrative investigation
would be conducted by investigators from the office of the
inspector general.” In response, Guice “hung his head” and
expressed concern with his arrest being aired on the news and
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6 Opinion of the Court 24-13110

upsetting his mother who was ill. Guice then expressed that he had
just been trying to take care of his ill mother, at which point, Agent
Jackson advised him that if he wished to continue talking and
wanted to make a statement, she would need to get Agent Favor.
Guice indicated that he wished to make a statement, and Agent
Jackson notified Favor, and they initiated the second interview.
At the beginning of the second interview, Guice confirmed
that he wanted to talk and that the agents were not forcing him to
do so. Guice then made incriminating statements in which he
admitted to bringing drugs into the prison for an inmate known as
“Country” in exchange for money for the past several months.
Favor explained that, at the end of the second interview, the
prison’s assistant warden, Warden McKee, asked to speak with
Guice. After speaking with Guice, Warden McKee informed Agent
Favor that Guice had resigned. Favor then resumed the interview
by showing Guice a photographic lineup and seeing if he could pick
out the inmate with whom he had been working. Guice then
identified the inmate.
Finally, Guice testified that he resigned only after making
incriminating statements to Agent Favor. Guice stated that, at the
time of his interview, it was his understanding that, if an employee
refused to participate in an investigation, the employee could be
fired. Furthermore, he stated that Favor and Jackson’s status as
ADOC employees influenced his decision to make a statement.
On cross-examination, Guice admitted that he was
handcuffed and that he understood being handcuffed was
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24-13110 Opinion of the Court 7

associated with a crime. Even though Guice acknowledged that
Agent Favor explained to him that Guice could resign but that his
resignation had nothing to do with the pending criminal matter,
Guice testified that he still thought that the criminal investigation
and the administrative investigation were “the same” because
Favor was “ADOC” and “an investigation is an investigation.”
When Agent Favor explained that his job was “to find out what
happened in the criminal side of things,” Guice denied
understanding this statement to mean that Agent Favor’s job was
criminal and “not the admin side of things.” Instead, Guice stated
“[i]t’s all ADOC.” Guice reiterated that it was his understanding
that, based on Regulation 208, he had to participate, and if he did
not, he would be fired. He confirmed that he feared losing his job
at the time he made the statements.
Following the hearing, the magistrate judge issued a report
and recommendation (“R&R”), recommending the denial of
Guice’s motion to suppress. Citing United States v. Smith, 821 F.3d
1293 (11th Cir. 2016), the magistrate judge concluded that, where,
as here, there was not a direct threat of termination, “statements
are protected under Garrity only when (1) the employee in fact
believed that he would be fired unless he gave the statement, and
(2) the employee’s subjective belief that he would be fired was
objectively reasonable under all of the circumstances.” The
magistrate judge concluded that Guice failed to establish either
element. First, the magistrate judge concluded that, in Smith, we
determined that Regulation 208, which was entirely speculative
about the possibility of termination, was insufficient to trigger
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8 Opinion of the Court 24-13110

Garrity protection. Second, with regard to whether Guice
possessed the necessary subjective belief that he would be
terminated unless he cooperated, the magistrate judge determined
that Guice’s “testimony at the hearing was not credible.” The
magistrate judge noted that his testimony—that he thought the
regulation required him to participate and that if he refused he
could be fired—was “inconsistent” with statements he made in the
interview “and seemed rehearsed.” Furthermore, at no point in
the interview did Guice mention this regulation or his alleged belief
that he was required to participate or else be fired. Rather, the
magistrate judge noted that Guice mentioned his employment
twice during the interviews and “seemed eager to resign”—“[h]e
never mentioned any desire or expectation to keep his job.”
Accordingly, the magistrate judge deemed Guice’s testimony as to
his subjective belief unbelievable.
Moreover, the magistrate judge concluded that, even
assuming Guice’s testimony was believable, it was not objectively
reasonable under the circumstances for Guice to believe he would
be fired unless he gave a statement. In support of this conclusion,
the magistrate judge cited the following facts: (1) Guice had already
given the assistant warden his resignation when he gave the
incriminating statement; (2) Agent Favor repeatedly informed
Guice that Favor was conducting a criminal investigation that had
nothing to do with his employment and that Guice had a right to
refuse to participate, which Guice invoked at least once without
mention of any employment repercussions; and (3) nothing in the
text of the regulation “compels an ADOC employee to give a
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24-13110 Opinion of the Court 9

statement in a criminal investigation or be fired.” Finally, the
magistrate judge rejected Guice’s contention that McKathan v.
United States, 969 F.3d 1213 (11th Cir. 2020), demonstrated that his
statement was compelled in violation of Garrity. Accordingly, the
magistrate judge concluded that Guice’s statement was not
coerced and recommended denial of the motion to suppress.
Guice objected to the R&R, arguing that the magistrate
judge (1) clearly erred in concluding that Guice had resigned prior
to giving his incriminating statement as the record clearly
demonstrated the opposite; (2) misinterpreted the holding in
Smith; and (3) erred in concluding that McKathan did not apply.
The district court summarily overruled Guice’s objections and
adopted the R&R denying the motion to suppress.
Thereafter, Guice entered a conditional plea of guilty to
both counts, reserving his right to appeal the denial of his motion
to suppress. The district court sentenced Guice to a total of 75
months’ imprisonment to be followed by 60 months of supervised
release. This appeal followed.
II. Discussion
Guice argues that the district court erred in denying his
motion to suppress because his incriminating statements were
clearly compelled and made under threat of job-related sanctions
in violation of the Fifth Amendment and Garrity. He also maintains
that the district court’s Garrity analysis was flawed for several
reasons and that the court improperly discredited his testimony
without justification.
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10 Opinion of the Court 24-13110

“A district court’s ruling on a motion to suppress presents a
mixed question of law and fact. We review the district court’s
findings of fact for clear error and its application of the law to the
facts de novo.” United States v. Lopez-Garcia, 565 F.3d 1306, 1312–13
(11th Cir. 2009) (quotations and citation omitted). “[W]here there
are two permissible views of the evidence, the fact-finder’s choice
between them cannot be clearly erroneous.” Smith, 821 F.3d at
1302 (quotations omitted).
Additionally, “[c]redibility determinations are typically the
province of the fact finder because the fact finder personally
observes the testimony and is thus in a better position than a
reviewing court to assess the credibility of witnesses.” United States
v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). Thus, we must
defer to the district court’s credibility determination “unless it is
contrary to the laws of nature, or is so inconsistent or improbable
on its face that no reasonable factfinder could accept it.” Id.
(quotations omitted).
The Fifth Amendment provides, in relevant part, that “[n]o
person . . . shall be compelled in any criminal case to be a witness
against himself.” U.S. Const. amend. V. Generally, the Fifth
Amendment privilege against self-incrimination “is not self-
executing,” and a person must specifically assert the right. United
States v. Vangates, 287 F.3d 1315, 1320 (11th Cir. 2002). “An
exception to this rule arises when assertion of the Fifth
Amendment privilege is penalized so as to foreclose a free choice
to remain silent and compel incriminating testimony.” Id.
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24-13110 Opinion of the Court 11

(quotations omitted). For instance, in Garrity v. New Jersey, state
police officers who were the subject of an investigation by the
Attorney General were told that “anything [they] said might be
used against [them] in any state criminal proceeding” and that they
could exercise their Fifth Amendment right and not answer the
questions if doing so would tend to incriminate them, but should
they invoke the privilege and decline to answer, their employment
would be terminated. 385 U.S. 493, 494 (1967). The Supreme
Court held that, when public employees are given the choice of
either forfeiting their jobs or incriminating themselves, the Fifth
Amendment has been violated because a choice of that kind is
“‘likely to exert such pressure upon an individual as to disable him
from making a free and rational choice.’” 385 U.S. 493, 497 (1967)
(quoting Miranda, 384 U.S. at 464–65). Accordingly, “a public
employee may not be coerced into surrendering his Fifth
Amendment privilege by threat of being fired or subjected to other
sanctions.” Vangates, 287 F.3d at 1320. And such compelled
statements cannot be used in any criminal proceeding or
prosecution. See Garrity, 385 U.S. at 499–500.
When, as here, there is no outright direct threat of job loss,
“we determine whether the [public employee’s] statements were
compelled by examining [his] belief and, more importantly, the
objective circumstances surrounding it.” Vangates, 287 F.3d at
1321–22. First, we must examine whether the defendant
“subjectively believed that he was compelled to give a statement
upon threat of loss of job.” Id. at 1322 (quotations omitted).
“Second, this belief must have been objectively reasonable at the
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12 Opinion of the Court 24-13110

time the statement was made.” Id. (emphasis omitted) (quotations
omitted). In determining whether the belief was objectively
reasonable, we must examine “the totality of the circumstances
surrounding the [allegedly compelled statement].” Id.
In Smith, we considered a similar claim to Guice’s. In that
case, Smith, an ADOC employee, filed incident reports with
falsified information following his beating of an inmate. 821 F.3d
at 1297–98. He moved to suppress these statements in the incident
reports on the basis that they were compelled under Garrity
because (1) ADOC regulations required employees to complete a
report of any unusual incidents that occur during a shift and to
cooperate with investigations, and (2) failure to comply with those
regulations triggered potential progressive disciplinary action. 821
F.3d at 1302. We reiterated that “where there is no direct threat,
the mere possibility of future discipline is not enough to trigger
Garrity protection,” 3 and we determined that Smith failed to

3 The district court relied on this language in Smith and noted in passing that

“[t]his holding effectively ends the analysis here.” Homing in on this isolated
statement, Guice argues that the district court misinterpreted Smith as holding
that policies like Regulation 208 can never support Garrity protection, and he
urges us to reverse on that basis. However, any error in the district court’s
interpretation of Smith was harmless because in the very next sentence, the
district court went on to explain that even though it believed that Smith
foreclosed Guice’s claim, it “[n]evertheless . . . address[ed] the two elements
of the Garrity standard,” and it determined that Guice failed to satisfy the
Garrity standard and denied Guice’s claim on the merits. Thus, any error was
harmless and did not affect the outcome. Consequently, this alleged error
does not serve as a basis for reversal. See Fed. R. Crim. P. 52(a) (“Any error,
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24-13110 Opinion of the Court 13

establish either that he had a subjective belief of termination, or
that such a belief would have been objectively reasonable under
the circumstances. Id. at 1303. Accordingly, we held that Smith’s
statements in the incident reports were not compelled within the
meaning of Garrity. Id.
As in Smith, Guice cannot show that his statements to Agent
Favor were compelled within the meaning of Garrity. Applying the
two-step approach set forth for non-direct threats, the district court
first found not credible Guice’s testimony that he subjectively
believed that he would be fired for failing to answer Agent Favor’s
questions. And we must defer to this credibility determination
because Guice has not shown that it was “contrary to the laws of
nature, or is so inconsistent or improbable on its face that no
reasonable factfinder could accept it.” 4 See Ramirez-Chilel, 289 F.3d
at 749; United States v. Joseph, 978 F.3d 1251, 1262 n.8 (11th Cir.

defect, irregularity, or variance that does not affect substantial rights must be
disregarded.”).
4 Guice challenges the credibility determination, but his arguments ignore that

we must defer to the district court’s credibility determination “unless it is
contrary to the laws of nature, or is so inconsistent or improbable on its face
that no reasonable factfinder could accept it.” Ramirez-Chilel, 289 F.3d at 749.
He does not argue that the district court’s determination that he was not
credible meets this exceedingly high bar. Instead, he merely quarrels with the
court’s view of his testimony and the weight it placed on certain facts.
Accordingly, he cannot overcome the deference owed to the district court’s
credibility determination. See United States v. McPhee, 336 F.3d 1269, 1275 (11th
Cir. 2003) (“As long as the district court’s findings are plausible, we may not
reverse the district court even if we would have decided the case differently.”
(quotations omitted)).
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14 Opinion of the Court 24-13110

2020) (“We defer to and accept the trial court’s choice of whom to
believe because it is the finder of fact who personally observes the
witness’s testimony and is in a better position to assess witness
credibility.”). And absent a subjective belief that he would be fired
if he did not answer Agent Favor’s questions, Guice’s Garrity claim
necessarily fails. See Vangates, 287 F.3d at 1322.
Furthermore, even assuming arguendo that we were to
credit Guice’s subjective belief, as the district court concluded, his
belief was not objectively reasonable under the circumstances.5
First, after the discovery of the drugs, Guice was handcuffed and
taken to Agent Favor’s office at ADOC’s law enforcement building
(which was not located on prison grounds)—these facts were
objective indicators that the matter was criminal in nature and not
related to Guice’s employment. Second, at the start of the
interview, Agent Favor informed Guice of the “charges” that he
was facing and advised Guice of his Miranda rights, which were
additional indicators that the matter was criminal and had nothing

5 Guice makes much of the fact that, in determining that his subjective belief

was not objectively reasonable, the district court erroneously stated that Guice
had already submitted a resignation letter when he gave his incriminating
statement. We agree that this factual finding was clearly erroneous as the
record establishes that Guice did not resign until after he made the
incriminating statement. Nevertheless, this factual error is not a basis for
reversal because the district court did not base its entire holding on this fact.
Instead, the district court independently determined that Guice’s subjective
belief that he would be fired if he did not cooperate was not objectively
reasonable under the circumstances. And that holding provides an
independent, sufficient basis for denying relief.
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24-13110 Opinion of the Court 15

to do with Guice’s employment. Third, at no point during the
interviews, did Agent Favor tell Guice that he had to speak with
him. Fourth, Agent Favor informed Guice multiple times that he
did not have to answer questions; that Agent Favor’s investigation
was criminal and not related to the “admin side of things”; that
Guice was “going to jail”; and that Guice’s resignation had
“nothing to do” with Agent Favor. Finally, Agent Favor ceased the
first interview after Guice stated that he no longer wanted to speak
without mentioning anything about Guice’s job or indicating that
Guice would face any form of discipline for failing to cooperate
with the interview. Thus, under the totality of the circumstances
in this case, it was not objectively reasonable for Guice to believe
that he would be fired or otherwise disciplined if he failed to
cooperate with Agent Favor’s investigation.6 See Vangates, 287 F.3d

6 To the extent that Guice argues that McKathan dictates a finding that his

statements were compelled because he faced a classic penalty situation, we
disagree. McKathan involved a claim of ineffective assistance of counsel in a
28 U.S.C. § 2255 proceeding based on counsel’s failure to challenge the
admissibility of certain statements McKathan made to his probation officer as
being compelled in violation of the Fifth Amendment. 969 F.3d at 1218, 1220–
21. Specifically, McKathan argued that his incriminating admissions to his
probation officer were compelled due to the supervised release conditions
which required him to truthfully answer all questions by his probation officer.
Id. We concluded that McKathan faced a “classic penalty situation” because
the probation officer told him that “if he did not follow the conditions of his
supervised release,” his release would be revoked and he would go back to
prison, which McKathan explained that he subjectively understood to mean
that if he did not answer the probation officer’s questions, his supervised
release would be revoked. Id. at 1228–29 (quotations omitted). Thus, because
McKathan’s incriminating statements were made in a classic penalty situation,
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16 Opinion of the Court 24-13110

at 1322–24. Accordingly, Guice’s statements were not protected by
Garrity, and the district court properly denied the motion to
suppress.
AFFIRMED.

we held that the government could not use those statements against him in a
subsequent criminal prosecution. Id. at 1229. Accordingly, we concluded that
there was a reasonable likelihood that a motion to suppress would have been
successful had counsel raised a Fifth Amendment challenge. Id. at 1231.
Guice’s case is distinguishable from McKathan for the reasons discussed
above—Guice was never threatened with job-related sanctions for failing to
answer Agent Favor’s questions and the totality of the circumstances made
clear that the matter being investigated was criminal, that Guice’s
employment had nothing to do with Agent Favor or the criminal
investigation, and that Guice had the right to stop answering questions at any
time without any negative consequences. Accordingly, unlike McKathan,
Guice did not face a classic penalty situation.