United States v. Joshua Fortson

NOT RECOMMENDED FOR PUBLICATION File Name: 26a0438n.06 Case No. 25-3210 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Oct 29, 2026 ) KELLY L. STEPHENS, Clerk UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE NORTHERN JOSHUA FORTSON, ) DISTRICT OF OHIO Defendant-Appellant. ) ) OPINION Before: BUSH, READLER, and DAVIS, Circuit Judges. DAVIS, Circuit Judge. A jury convicted Joshua Fortson on drug-trafficking and firearms- related charges based, in part, on evidence seized during a warrantless search of an apartment where Fortson was arrested on parole violations. Fortson now challenges his conviction based on the district court’s denial of his request for a pretrial continuance, denial of his motion to suppress evidence derived from the aforementioned warrantless search, and admission of post-arrest interview statements that he says occurred during plea negotiations or alternatively were involuntary. Seeing no reversible error, we AFFIRM. I. A. Factual Background In 2016, Fortson was on parole in Ohio for several state convictions. Ohio’s standard supervision conditions required Fortson to follow all directives given by his parole officer, notify No. 25-3210, United States v. Fortson the Adult Parole Authority (“APA”) of any change in his residential address, and consent to warrantless searches. See Ohio Rev. Code §§ 2951.02, 2967.131. On his parole paperwork, Fortson listed his father’s Ravenna, Ohio address as his place of residence. The APA approved that address. And once released from custody, Fortson moved to his father’s house in Ravenna. Drug Investigation. In 2018, the Drug Enforcement Administration (“DEA”) and the Portage County Drug Task Force (“PCDTF”)1 began investigating Fortson for drug trafficking. In February 2018, a confidential source (“CS”)—referred to as “CS-3” in the investigative file and a subsequent search warrant affidavit—told authorities that Fortson was an active member of a drug- trafficking ring that sold cocaine, methamphetamine, and marijuana. CS-3 was a PCDTF source who had been deactivated as a DEA source for engaging in unauthorized drug deals. In May 2018, CS-3 performed a controlled buy from Fortson, netting three ounces of methamphetamine for $2,000. After the controlled buy with CS-3, three other CSs—CS-1, CS-2, and CS-4—reported that Fortson had sold them drugs in January and February of 2018 from or near an apartment on Snowfall Road in Akron, Ohio (“Snowfall”). Collectively, the CSs conducted multiple buys from Fortson, and they observed him handle various quantities of methamphetamine and paraphernalia at Snowfall—with one CS having observed a 55-gallon drum of methamphetamine inside the apartment. One of the CSs advised that Fortson drove a dark Lexus and that he often heat-sealed methamphetamine into potato chip bags. Additionally, a PCDTF officer stopped a vehicle that was being driven by a person the officer had seen exit Snowfall, after receiving information from one of the CSs that the driver had just purchased narcotics from Fortson while inside the apartment. 1 In the record below, this unit of the Portage County Sheriff’s Office is referred to as both the “Portage County Drug Task Force” and the “Portage County Drug Unit.” On appeal, the parties only use the former term. For consistency, this opinion uses “Portage County Drug Task Force” (“PCDTF”) to refer to this unit. -2- No. 25-3210, United States v. Fortson From the driver, the officer recovered a heat-sealed potato chip bag filled with methamphetamine and an admission that he had bought the drugs from Fortson. Authorities homed in on Snowfall. The utilities at Snowfall were in Fortson’s father’s name, and Fortson’s girlfriend, Jasmine White, was listed as an authorized user on the account. According to PCDTF’s CS information, White and Fortson resided together at Snowfall. Fortson never reported a change in address, however. And Fortson’s parole officer, Chad Rankin, continued home visits at the Ravenna address without issue. Parole Violations. After Fortson failed a drug test on March 4, 2019, Rankin required him to begin wearing a GPS monitor. Due to a technological issue with the monitor, the day after Rankin outfitted Fortson with the device, he directed Fortson to return to the parole office. Fortson did not show up. On March 6, GPS data showed that Fortson had been at or around Snowfall for 48 hours, rather than at his approved address on Ravenna. The APA arranged to arrest Fortson on parole violations—failing to report as directed and changing addresses without permission—and conduct a parole search at Snowfall. Arrest and Search. On March 6, APA officers and members of the U.S. Marshals Service (“USMS”) Task Force arrested Fortson at Snowfall. En route, an officer from the PCDTF advised Todd Liggett—an Ohio parole officer and Task Force Officer (“TFO”) assigned to the USMS— that Fortson might be dealing again. When officers arrived at the Snowfall address, they saw the dark Lexus that prior investigations had linked to Fortson. One team knocked and announced at the front door, the other at the back. Fortson answered the back door and let the officers in Snowfall. Officers arrested him soon after. During an initial security sweep of the apartment, officers observed marijuana, heat sealers, vacuum sealers, scales, a gun, and a magazine in plain view. Male clothes and shoes were strewn -3- No. 25-3210, United States v. Fortson about the apartment. And officers found methamphetamine during the warrantless parole search. In the meantime, authorities secured a warrant to search Snowfall. The affidavit supporting the warrant described the years-long investigation into Fortson’s drug-trafficking activities, including the various CSs’ reports of drug transactions at Snowfall in early 2019 and the controlled buy in 2018. Authorities recovered methamphetamine heat-sealed in chip bags, a firearm, and $26,000 in cash during the warranted search. Jail Interview. Two days later, DEA Special Agent Richard Schmitt and DEA TFO Kevin Nicolino visited Fortson in jail, where he was being held for his parole violations, to follow up on the March 6 search. Schmitt read Fortson his Miranda rights, and Fortson declined to speak without his attorney present. A few weeks later, Jasmine White texted Nicolino to tell him that Fortson had an attorney and wanted to talk. White said that Fortson needed to get out of jail and suggested that authorities should consolidate any criminal charges against Fortson in exchange for Fortson becoming an informant. Roughly two weeks later, through Fortson’s attorney, Nicolino arranged a meeting at the Stark County Jail. Fortson, his attorney, Nicolino, Schmitt, and DEA Special Agent Steve Rapp attended. As best the officers recall, they did not re-Mirandize Fortson. The officers saw the meeting as a chance to “get information regarding known traffickers,” “identify . . . sources of supply,” and “advance drug trafficking investigations.” (Trial Tr. Vol. 4, R. 115, PageID 1746, 1748). During the meeting, the parties did not discuss a potential proffer or plea agreement, but Schmitt wrote in a post-interview report that the interview was conducted in accordance with a proffer agreement. -4- No. 25-3210, United States v. Fortson B. Procedural History In 2021, a grand jury indicted Fortson for distribution of at least 50 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(l) and (b)(l)(A)(viii); possession with intent to distribute at least 50 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii); and possession of a firearm and ammunition as a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). As relevant here, the district court disposed of three issues that Fortson now challenges on appeal. First, the court did not grant Fortson’s request for a trial continuance to investigate CS- 3’s DEA activation status. Second, it denied Fortson’s motion to suppress evidence recovered from the Snowfall search. And third, the court determined that Fortson’s interview statements were admissible because he did not make them as part of plea negotiations and they were not involuntary. A jury convicted Fortson of all charges. In post-trial proceedings and through new counsel, Fortson moved for a new trial and to reopen the suppression hearing. As grounds for these requests, Fortson argued that his trial counsel had provided ineffective assistance in failing to argue that the officers needed probable cause to believe that he resided at Snowfall or an arrest warrant before they could enter the apartment. The district court denied Fortson’s motion. Fortson timely appealed. II. Continuance Request. We review the district court’s decision denying Fortson’s request for a trial-date continuance for an abuse of discretion. United States v. Amawi, 695 F.3d 457, 480 (6th Cir. 2012). “A district court abuses its discretion when it improperly applies the law, uses the wrong legal standard, or relies on clearly erroneous findings of fact.” United States v. You, -5- No. 25-3210, United States v. Fortson 74 F.4th 378, 388 (6th Cir. 2023). We will find clear error only when we are “left with the definite and firm conviction that a mistake has been committed.” United States v. Reed, 163 F.4th 338, 354 (6th Cir. 2025) (citation modified). Fortson argues that the district court abused its discretion in failing to grant him a continuance to more thoroughly investigate CS-3’s activation status and find more witnesses to impeach CS-3 at trial. Fortson raised the issue of a continuance shortly after the government disclosed CS-3’s identity and provided details about the circumstances of CS-3’s deactivation as a DEA informant. The government’s disclosure and Fortson’s non-specific request for more time to prepare occurred the day before trial when the parties appeared to argue motions in limine. Perhaps because Fortson’s request was never articulated more concretely than a bid for “a little time to research,” (Mot. in Lim. Hr’g. Tr., R. 112, PageID 1068), the district court did not formally rule on it. But Fortson’s request was effectively denied when the court proceeded to trial as scheduled on November 28, 2023. Under the circumstances, doing so was not an abuse of discretion. Denial of a continuance will “amount[] to a constitutional violation only if there is an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay.” United States v. Warshak, 631 F.3d 266, 298 (6th Cir. 2010) (citation modified). Even then, a party challenging such a denial must also show that the failure to afford more time “actually prejudiced” his defense. United States v. Lewis, 605 F.3d 395, 401 (6th Cir. 2010). A defendant can establish actual prejudice by showing that “a continuance would have made relevant witnesses available or added something to the defense.” United States v. King, 127 F.3d 483, 487 (6th Cir. 1997). Fortson has not made any such showing here. -6- No. 25-3210, United States v. Fortson United States v. Garner stands as an example of how a party can make the requisite showing. 507 F.3d 399 (6th Cir. 2007). There, the district court denied a continuance following the government’s eleventh-hour disclosure of technically complex information that had taken the FBI more than five days to figure out. Id. at 403, 408–09. The court’s denial left the defendant to decipher that evidence on the day of trial. Id. at 408–09. The newly disclosed evidence in Garner had extraordinary impeachment value, was novel, and was late-breaking. Under those circumstances, we concluded that Garner was deprived of “an opportunity to prepare an adequate defense” and therefore suffered actual prejudice. Id. at 409. But when a last-minute disclosure involves subject matter already familiar to the defendant, the defendant’s need for a continuance is less pronounced. Take United States v. Doyle, where the defendant claimed that he needed more time to investigate an issue that he had known about for the past month. 720 F. App’x 271, 277 (6th Cir. 2018). Under that scenario, we determined that the district court did not abuse its discretion in denying Doyle more time because he had received ample notice of the issue and had failed to timely act on information of which he was already aware. Id. A continuance, we reasoned, “would not have opened a door previously closed to” him. Id. The same is true for Fortson. The disclosure Fortson complains of is the government’s day-before-trial production of documents relating to CS-3’s activation status as an informant.2 The newly disclosed documents, however, merely corroborated information contained in discovery that Fortson had received months earlier. In particular, when Fortson asked for a continuance, he had already received the 2 The government points out that it complied with the district court’s order covering the timing of production for Jencks Act materials (i.e., any “statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant)”). 18 U.S.C. § 3500(a). That order strongly encouraged the parties to provide such materials by the close of the day before the witness whose report or statement was to be produced was expected to testify, unless there was a well-founded concern about the witness’s safety. Here, the government produced the materials the day before CS-3 was set to testify. -7- No. 25-3210, United States v. Fortson warrant affidavit in May 2022. That affidavit included information that CS-3 was a PCDTF source who had been deactivated by the DEA for misconduct. And it also revealed the dates when CS-3 was activated, deactivated, and reactivated, and by whom. Yet, armed with that information, Fortson apparently took no investigative steps of his own concerning CS-3’s change in status. Instead, he waited until the government produced law-enforcement reports—some eighteen months later—detailing the circumstances of the activation decisions. Fortson argued to the district court that, before disclosure of those reports, the case had been moving forward “under the guise that [CS-3] was a confidential source for [the] DEA.” (Mot. in Lim. Hr’g Tr., R. 112, PageID 1071). But the timeline for CS-3’s activation status as laid out in the search warrant affidavit belies that claim. Regardless, the district court confirmed with defense counsel that the defense could extensively cross-examine CS-3 on the subject. And at the court’s request, the prosecution explained that it would present “extensive information” about the CSs and the controlled buy, which would provide the defense with “plenty of avenues” to challenge CS-3’s credibility. (Id. at 1070). Satisfied with this explanation, the district court discerned no actual prejudice to Fortson’s defense. We see no abuse of discretion here. The district court did not draw any questionable conclusions about defense counsel’s ability to parse evidence, as in Garner. Nor did it misapprehend or misapply the law. Rather, just as in Doyle, the government’s disclosure merely supplemented information that Fortson already had and on which he failed to act earlier. 720 F. App’x at 277. By the time he received these additional reports, Fortson had had over a year to investigate the details of CS-3’s activation status, research the legal implications (if any) of CS- 3’s status at the time of the controlled buy, and prepare a defense. We have considered shorter lengths to be sufficient. See Amawi, 695 F.3d at 481 (“[E]ight months . . . [was] significant time -8- No. 25-3210, United States v. Fortson to review the materials in the case.”); Warshak, 631 F.3d at 299 (“[T]he defendants were given months to comb through the bulk of [the evidence in question].”). Consequently, Fortson’s insistence that a continuance would have allowed him time to prepare a more thorough cross-examination of CS-3 and that he could have found more witnesses to attack CS-3’s credibility gets him nowhere. Fortson has not shown how he was deprived of an “opportunity to prepare an adequate defense.” Garner, 507 F.3d at 409. To the contrary, the record shows that he extensively cross-examined CS-3 at trial. And, using the pretrial-disclosure materials, he elicited testimony from other witnesses sufficient to cast doubt on CS-3’s credibility. The possibility that more witnesses could have aided his defense does not amount to prejudice. See United States v. Vance, 758 F.2d 654, 1985 WL 12983, at *1 (6th Cir. Feb. 11, 1985) (per curiam) (table) (denying continuance to a defendant who “needed more time to locate witnesses for trial”); Doyle, 720 F. App’x at 277 (denying continuance where defendant “may have sought out an expert witness” to opine on recently discovered information). Thus, the district court’s failure to accommodate Fortson’s request did not amount to an abuse of discretion. III. Motion to Suppress Evidence. In appeals challenging the denial of a motion to suppress, we review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Taylor, 121 F.4th 590, 594 (6th Cir. 2024). We will not disturb a denial of suppression “if the district court’s conclusion can be justified for any reason.” United States v. Moorehead, 912 F.3d 963, 966 (6th Cir. 2019) (citation modified). Fortson argues that the district court should have suppressed evidence seized from Snowfall because the officers lacked probable cause to believe that he lived there. He contends -9- No. 25-3210, United States v. Fortson that a reasonable suspicion of his residency was not enough, and this failing rendered the search unconstitutional. The district court concluded that the officers had probable cause to believe that Fortson lived at Snowfall, and that regardless of whether the parole search was constitutional, the officers inevitably would have discovered the challenged evidence during the later, warranted search. Inevitable Discovery. We agree that officers inevitably would have discovered the evidence, so we need not address the degree of suspicion required to effectuate a parole search of a third-party residence.3 “The inevitable discovery doctrine allows for the admission of evidence that would have been discovered even without the unconstitutional source.” United States v. Cooper, 24 F.4th 1086, 1091 (6th Cir. 2022) (citation modified) (quoting Utah v. Strieff, 579 U.S. 232, 238 (2016)). A “paradigmatic example[]” of when the doctrine applies is “when, after seizing evidence during an illegal search, police obtain and execute a search warrant based on probable cause developed before the illegal search.” Id. “Probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.” Chatrie v. United States, 609 U.S. 605, 638 (2026) (citation modified). There must be “a ‘fair probability that contraband or evidence of a crime will be found’ in the place searched.” Id. (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). Here, the officers had information sufficient to support a fair probability that drugs would be found inside Snowfall even before their warrantless search. In particular, PCDTF’s same-day 3 But see United States v. Hernandez, 182 F.4th 484, 486–89 (6th Cir. 2026) (allowing search of a third party’s house at which location data showed the supervised releasee spent most of his day where officers had reasonable suspicion that the releasee, whose official residence was elsewhere, was engaged in illegal activities at the third-party’s residence). - 10 - No. 25-3210, United States v. Fortson search warrant relied on an affidavit that described seven methamphetamine deals between January and February 2019. Each transaction involved drugs that originated from inside Snowfall. The affidavit accompanying the warrant included information that CS-1 saw a 55-gallon drum of methamphetamine inside. CS-1 and CS-2 observed White heat-seal the drugs for sale. And just outside the apartment, an officer recovered a heat-sealed chip bag filled with methamphetamine. The warrant permitted the officers to search Snowfall for evidence of Fortson’s possession with intent to distribute methamphetamine. And the affidavit in support of the search did not rely on any of the evidence uncovered during the earlier parole search. The warranted search uncovered methamphetamine sealed in chip bags, a firearm, and about $26,000 in cash. Thus, based on probable cause developed well before the search, officers were bound to discover the items that officers recovered during the parole search. For his part, Fortson does not address the inevitable-discovery doctrine in his appeal, despite the district court’s alternative ruling on this basis and the government’s argument for its application here. He has, thus, waived his ability to challenge this aspect of the district court’s ruling. See, e.g., United States v. Russell, 26 F.4th 371, 374–75 (6th Cir. 2022). As we have explained, “the failure to challenge all of a district court’s alternative bases for its decision generally precludes appellate relief.” United States v. Atkins, 843 F.3d 625, 639 (6th Cir. 2016). And under similar circumstances, we have declined to consider a defendant’s arguments challenging the denial of a suppression motion where he addressed only one of two grounds supporting the district court’s ruling. See, e.g., United States v. Thornton, 609 F.3d 373, 380 (6th Cir. 2010); see also United States v. Jackson, No. 25-1187, 2026 WL 735066, at *6 (6th Cir. Mar. 16, 2026) (declining to address whether a search was constitutional where the inevitable discovery doctrine allowed for admission of the evidence seized). - 11 - No. 25-3210, United States v. Fortson Because we agree with the district court that the evidentiary outcome would have been the same regardless of any constitutional infirmity with the parole search, Fortson has not established grounds for suppressing evidence from the Snowfall searches. IV. Admission of Post-Arrest Statements. We review the district court’s evidentiary rulings for an abuse of discretion. You, 74 F.4th at 388. And we treat the district court’s credibility determinations with “great deference.” United States v. Prigmore, 15 F.4th 768, 777 (6th Cir. 2021) (citation modified). By contrast, we review the “district court’s conclusions concerning the voluntary nature of an inculpatory statement” de novo. United States v. Mahan, 190 F.3d 416, 422 (6th Cir. 1999). Fortson argues that his statements to Nicolino, Schmitt, and Rapp were inadmissible because he made them during plea negotiations or, alternatively, because they were involuntary. The district court rejected both arguments and admitted the statements. We address Fortson’s arguments in turn and affirm. A. Plea Negotiations—Fed. R. Evid. 410 Federal Rule of Evidence 410 governs the admissibility of a defendant’s statements made in relation to plea proceedings or plea discussions. To be inadmissible under Rule 410, such statements must have been “made during plea discussions with an attorney for the prosecuting authority.” Fed. R. Evid. 410(a)(4); see also Fed. R. Crim. P. 11(f). We have yet to delineate the parameters of “an attorney for the prosecuting authority.” But in at least one unpublished decision we embraced the notion that this text “can be fairly read to apply to statements made to a [prosecutor] during the course of plea discussions or to an agent whom the [prosecutor] has authorized to engage in plea discussions.” United States v. O’Neal, 992 F.2d 1218, 1993 WL - 12 - No. 25-3210, United States v. Fortson 133807, at *8 (6th Cir. Apr. 28, 1993) (per curiam) (table); see also United States v. Grant, 622 F.2d 308, 313 (8th Cir. 1980) (explaining that this reading prevents prosecutors from “avoid[ing] the operation of the rules by authorizing law enforcement officials to conduct plea negotiations”). Fortson’s situation does not trigger Rule 410. First, Fortson never spoke to a prosecutor about any plea deal. See United States v. Mullins, 164 F.4th 1179, 1192 (10th Cir. 2026). Second, as the district court found, “there [were] no communications between the agents and any prosecuting authority” about authorizing or sanctioning either meeting with Fortson. (Trial Tr. Vol. 3, R. 113, PageID 1162). See Rachlin v. United States, 723 F.2d 1373, 1376–77 (8th Cir. 1983). Indeed, Nicolino and Schmitt recognized that they lacked prosecutorial authority to engage in plea-related bargaining. And Fortson does not argue that either agent represented to him or his attorney that they had any such authority. Hence, with no prosecutor involved in the discussions with Fortson and his attorney and no authority delegated to the agents with whom he spoke, Fortson’s statements were not covered by Rule 410.4 As such, we affirm the district court’s ruling. See Campbell v. Riahi, 109 F.4th 854, 860 (6th Cir. 2024) (“We may affirm on any basis supported by the record.”). 4 Because Fortson has not satisfied the threshold requirement that he made statements to an “attorney for the prosecuting authority,” we have no occasion to opine on the continuing vitality of the subjective/objective inquiry articulated in United States v. Little and discussed extensively by the parties. 12 F.3d 215, 1993 WL 501570, at *3 (6th Cir. Dec. 6, 1993) (per curiam) (table) (quoting United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir. 1978) (en banc)). But see Christopher B. Mueller & Laird C. Kirkpatrick, 2 Federal Evidence § 4:68 (4th ed., July 2025 update) (“The Robertson standard survived the 1980 amendment, and represents a good (if rather general) approach.” (surveying authority)). There, the defendant spoke to an assistant U.S. attorney before agreeing to cooperate in discussions with a law enforcement agent who was “acting with the express authority” of the assistant U.S. attorney. Little, 1993 WL 501570, at *3. So the court was left to resolve the factual question of whether the defendant’s discussions with the agent were, in fact, plea negotiations. See id.; see also 2 Weinstein’s Federal Evidence § 410.09[3]–[4] (2026) (recognizing that Robertson can be considered in determining whether a “statement has been made in the course of plea discussions”). Not so, here. - 13 - No. 25-3210, United States v. Fortson Fortson’s arguments to the contrary are unavailing. First, he challenges the district court’s finding that the officers were unaware of any pending charges against Fortson. But even if the officers were aware of charges, that knowledge does not bear on whether they had the authority to engage in plea discussions. For the same reason, Fortson’s second contention—that White’s text messages with Nicolino were a form of plea negotiation—is beside the point. Finally, Fortson points us to Schmitt’s report stating that “a proffer agreement was in effect.” (Appellant’s Br., ECF 18, 51). Although “Rule 410 serves to protect a defendant from having admitted against him incriminating statements made” during a proffer session, United States v. Walker, ___ F.4th ____, No. 25-1356, 2026 WL 2884115, at *6 (6th Cir. Sep. 25, 2026) (Readler, J., concurring), the trial court credited Schmitt’s testimony that his statement reflected his own misunderstanding and that the meeting was just an interview. Fortson does not challenge that credibility determination on appeal or point to any other evidence in the record substantiating the existence of a proffer agreement, so it must stand. See United States v. Hudson, 405 F.3d 425, 442 (6th Cir. 2005). B. Voluntariness of Statement Finally, we consider Fortson’s alternative argument that his statements were involuntary and therefore inadmissible. In the district court, Fortson argued that even if any of his April 12 statements were confessions, they were not voluntary because they were the product of the agents’ coercive conduct. The district court rejected this argument, concluding the agents were not coercive. We agree. The Fifth Amendment prohibits “compel[ling]” a criminal defendant “to be a witness against himself.” U.S. Const. amend. V. Thus, a defendant’s statements made during custodial interrogation are admissible at trial only if they were “made freely, voluntarily[,] and without compulsion or inducement of any sort.” United States v. Binford, 818 F.3d 261, 271 (6th Cir. - 14 - No. 25-3210, United States v. Fortson 2016) (citation modified) (quoting Haynes v. Washington, 373 U.S. 503, 513 (1963)). Statements “obtained through official coercion” “do not meet this standard.” United States v. Guerrero, 168 F.4th 454, 461 (6th Cir. 2026). Police conduct is coercive when, viewed objectively, the officers’ actions were “sufficient to overbear the defendant’s will” and were “the crucial motivating factor in the defendant’s decision to speak.” Id. (citation modified). In assessing whether a suspect’s will was overborne, courts must examine “the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). The record lacks any indicia of coercion. For instance, Fortson’s attorney helped organize and attended the whole April 12 meeting. Cf. Miranda v. Arizona, 384 U.S. 436, 470 (1966) (“With a lawyer present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it in court.”). The meeting was also not protracted; it lasted about two hours and could have been terminated by Fortson at will. [Id.]; See United States v. Williams, 612 F.3d 417, 422 (6th Cir. 2010) (collecting caselaw to demonstrate that “interrogations of great duration have been deemed improper only when they were accompanied by other facts indicating coercion” (citation modified)). And the officers made no promises of leniency and no mentions of a potential plea or proffer. Cf. United States v. Johnson, 351 F.3d 254, 262 (6th Cir. 2003). Such behavior does not resemble “coercive government misconduct” that overbears a suspect’s will or effectively forces him to speak. Colorado v. Connelly, 479 U.S. 157, 163–65 (1986) (canvassing authority). And Fortson does not appear to challenge the district court’s factual findings on these points as clearly erroneous. So we see no clear error in the district court’s finding that the officers did not ask Fortson incriminating questions and that they wanted to glean information about other drug traffickers, not about the - 15 - No. 25-3210, United States v. Fortson March 6 search. With these facts, the district court was correct in holding that Fortson was not coerced to make statements. To avoid this conclusion, Fortson claims for the first time that his statements were involuntary because he was not Mirandized during the second meeting. Not so. Though the “[f]ailure to administer Miranda warnings creates a[n] [irrebuttable] presumption of compulsion,” Oregon v. Elstad, 470 U.S. 298, 307 (1985); see also United States v. Pacheco-Lopez, 531 F.3d 420, 424 (6th Cir. 2008), the record does not support Fortson’s contention that he was interrogated as that term is understood under Miranda. This unpreserved claim fails under any applicable standard of review.5 Here, we review it de novo as both parties have briefed it. Fortson’s new argument falters because the record does not establish that his statements were made in response to “interrogation.” To safeguard the right to self-incrimination, police must inform suspects of their constitutional protections before a custodial interrogation. See Miranda, 384 U.S. at 444. Police have interrogated a person if they “should [have] know[n]” their “words or actions” were “reasonably likely to elicit an incriminating response.” Guerrero, 168 F.4th at 460 (citation modified) (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). But under Fortson’s facts, no “reasonable person” would say that the agents “attempt[ed] to obtain a response [from Fortson] to use at trial.” Bachynski v. Stewart, 813 F.3d 241, 246 (6th Cir. 2015). Fortson, through White, represented that he wanted to cooperate with law enforcement by offering information about other drug dealers. His attorney organized a meeting with the agents soon after. The agents attended the meeting to “listen” rather than “question.” (Mot. in Lim. Hr’g. 5 Although “plain-error review might have been available” for Fortson’s new involuntariness argument, the government has not “requested” its application here. United States v. Williams, 641 F.3d 758, 763 (6th Cir. 2011). And we have previously held that we “will not apply the plain error standard unless requested to do so by one of the parties.” Id.; see also United States v. Lane, No. 24-6083, 2025 WL 3163753, at *7 n.6 (6th Cir. Nov. 12, 2025). - 16 - No. 25-3210, United States v. Fortson Tr., R. 112, PageID 1091). They entered “looking for information to advance their investigation into other drug traffickers” and never “ask[ed] him to confess to all his crimes” when the meeting took place. (Id. at 1137). Despite this posture, Fortson made several inculpatory statements, such as disclosing who he had sold to and where, out of a “hope” that it “would do something for him.” (Id.). Such “unexpected and unresponsive” statements do not “transform [an interaction] into an interrogation,” though. United States v. Lester, 98 F.4th 768, 773 (6th Cir. 2024) (citation modified); Miranda, 622 F.3d at 478 (“Volunteered statements of any kind are not barred by the Fifth Amendment . . . .”). And Fortson points to no evidence to refute the officers’ testimony about the nature of their questioning or otherwise show that the agents asked incriminating questions. Because there was no interrogation, any Miranda analysis “is at an end.” United States v. Woods, 711 F.3d 737, 740 (6th Cir. 2013). V. We AFFIRM. - 17 -