United States v. Lall

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
_______________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-10794 MAY 28, 2010
_______________________ JOHN LEY
CLERK
D.C. Docket No. 08-20776-CR-FAM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LANCE LALL,
a.k.a. Trini,

Defendant-Appellant.

______________________

Appeal from the United States District Court
for the Southern District of Florida
______________________

(May 28, 2010)

Before TJOFLAT and COX, Circuit Judges, and KORMAN,* District Judge.

KORMAN, District Judge:

*
Honorable Edward R. Korman, United States District Judge for the Eastern District
of New York, sitting by designation.
 Lance Lall appeals from a judgment, entered upon a jury verdict, convicting

him of conspiracy to commit credit card fraud in violation of 18 U.S.C. § 1029(a)(2),

(4), and (b)(2), possession of device-making equipment with intent to defraud in

violation of 18 U.S.C. § 1029(a)(4), and aggravated identity theft in violation of 18

U.S.C. §§ 1028A(a)(1) and (2). Lall was sentenced principally to thirty months in

prison. On this appeal, he challenges the denial of his motion to suppress evidence

obtained after the police responded to an armed robbery targeting his bedroom.

Specifically, he argues that incriminating statements he made at that time and in

response to subsequent interrogation were not voluntary and that the physical

evidence seized from his bedroom was derived improperly from his initial admission.

I. Background

On November 8, 2007, North Miami Police Detectives Michael Gaudio

(“Gaudio”) and Fred Desir (“Desir”) responded to an emergency call regarding an

armed robbery at the home where the twenty-year-old Lall lived with his parents,

Erroll and Hannah Lall, and his brother and sister, Joel and Anissa. Hannah, Anissa,

and Joel were home when two masked men entered and demanded money. The

robbers made statements indicating that Lance had money and equipment that was

valuable, and searched the upstairs bedroom shared by Joel and Lance. The Lalls

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were threatened with violence by the robbers, who eventually settled for a laptop

computer belonging to Lance and the keys to the Ford Mustang owned by the father,

Erroll, in which they made their escape.

Detective Gaudio testified that, after the police arrived at the Lall residence to

investigate the crime scene, Joel indicated to him that Lance “was into credit card

fraud and making ID’s and stuff with the Internet.” The two detectives determined

that the bedroom shared by Joel and Lance was “the focus of this home invasion,

whatever these criminals were looking for, they were looking for in his room.” Lance

then arrived home and was given Miranda warnings by the detectives in the front

yard of the house. Gaudio testified that he told Lance, “my main concern was the

home invasion, about who had done this to his family, you know, this was a pretty

serious crime,” and that Gaudio “needed to find out more information.”

Gaudio then took Lance to the bedroom to, in his words, “try to collect any

evidence that might help” and “[t]o develop any leads to who might have committed

the home invasion robbery.” Once in the bedroom, the door to the room was shut.

Lall testified that there were four officers, including Detective Gaudio, in the

bedroom with him, though Gaudio testified that only he and Detective Desir, and

possibly one other officer, were in the room. Gaudio admitted, however, that Lall’s

father and other family members were purposefully excluded from the room and not

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permitted to enter, despite objections from the family. Significantly, prior to entering

the bedroom, Detective Gaudio told Lall and his family that any information Lall

shared with the police would not be used to prosecute him.

Once inside the bedroom, Lall proceeded to show Detective Gaudio the

equipment he used to commit identity theft and to explain how each device worked.

Based on these admissions, Gaudio seized, inter alia, two “skimmers,” which Lall

used to capture account information from swiped credit cards and driver’s licenses,

and one “encoder,” which he used to transplant that information onto new cards or

licenses for fraudulent purposes.

While Detective Gaudio did not arrest Lall, he alerted the Secret Service to this

evidence less than twenty-four hours after it was taken. Several days later, Gaudio

called Lall and told him to come to the police station with his father. According to

Lall, Gaudio told Lall’s father that they would not need to be accompanied by a

lawyer, and Gaudio testified at the suppression hearing that he again told Lall he

“wasn’t going to be charging him with any of this.” While at the station, Lall was

again given Miranda warnings, and proceeded to further “expound” on his initial

statement. Lall was not aware at this time that Gaudio had already notified the Secret

Service of the evidence originally taken. Ultimately, Lall was arrested by Secret

Service and charged with the offenses of which he was convicted.

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 Prior to trial, Lall moved to suppress the statements made to Gaudio during the

initial interrogation and the physical evidence seized from his bedroom. Lall argued

that the statements, which provided the probable cause for the seizure of the physical

evidence, were improperly obtained. After a suppression hearing, the district judge

denied the motion to suppress. Specifically, he held that Lall was not in custody—a

holding which obviated any Miranda violation—and that there was sufficient

probable cause to seize evidence found in Lall’s bedroom.

The case then proceeded to trial. At the conclusion of trial testimony, Lall

renewed his motion to suppress the evidence and statements obtained by police on

the night of the robbery. The motion was predicated on the claim that certain

evidence had been withheld from him with respect to the issue whether the items

seized from his bedroom were in plain view. More pertinent to the issues raised on

appeal, Lall asked the judge to instruct the jury to disregard testimony concerning the

statements made by Lall at the police station on the grounds that they were not

voluntary. While Lall’s pretrial motion to suppress did not encompass the latter

confession, the district judge denied the motion on the merits after concluding that

the content of the first and second confessions was essentially identical, and that “the

legal issue involved [was] the same,” stating that “it’s the same thing except [Lall] is

entitled to Miranda warnings, perhaps, if he goes to the station voluntarily. But it

5
doesn’t really change anything.”

II. Discussion

The principal issue presented by this appeal is the voluntariness of Lall’s

statements to Detective Gaudio. Lall’s challenge to the admissibility of those

statements encompasses two separate yet interrelated arguments: first, that Gaudio’s

promises of non-prosecution prevented Lall from making a voluntary, knowing, and

intelligent waiver of his Miranda rights; and second, that these promises rendered any

subsequent confession by Lall involuntary and thus inadmissible. The U.S. Attorney

argues that Lall freely and voluntarily confessed to committing identity and credit

card fraud and explained to Detective Gaudio how his equipment facilitated the

commission of those crimes. Moreover, he argues that Lall was not in custody at the

time of the questioning, notwithstanding the fact that he was given the Miranda

warnings. Consequently, he argues, it is immaterial whether Lall knowingly and

voluntarily waived his Miranda rights. The same argument is repeated with respect

to Lall’s challenge to the admissibility of the second statement he made a few days

later after he was summoned to the police station for additional interrogation.

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A. The First Confession

1. Miranda Waiver

We begin with Lall’s first confession made to Detective Gaudio on the night

of the robbery. Before a suspect’s uncounseled incriminating statements made during

custodial interrogation may be admitted, the prosecution must show “that the suspect

made a voluntary, knowing and intelligent waiver of his privilege against self-

incrimination and his right to counsel.” United States v. Beal, 921 F.2d 1412, 1434

(11th Cir. 1991). In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court

explained that a warning that statements could be used against the suspect would

make him aware of the consequences of foregoing the right to remain silent.

Miranda, 384 U.S. at 469. “It is only through an awareness of these consequences

that there can be any assurance of real understanding and intelligent exercise of that

privilege.” Id. Two factors are relevant to whether a waiver of the privilege was

voluntary, knowing, and intelligent:

First, the relinquishment of the right must have been voluntary
in the sense that it was the product of free and deliberate
choice rather than intimidation, coercion, or deception.
Second, the waiver must have been made with a full awareness
of both the nature of the right being abandoned and the
consequences of the decision to abandon it. Only if the

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 “totality of the circumstances surrounding the interrogation”
reveal both an uncoerced choice and the requisite level of
comprehension may a court properly conclude that the
Miranda rights have been waived.

Moran v. Burbine, 475 U.S. 412, 421 (1986) (quoting Fare v. Michael C., 442 U.S.

707, 725 (1979)).

Relying on Hart v. Attorney General of Florida, 323 F.3d 884 (11th Cir. 2003),

Lall contends that the promises of non-prosecution made by Gaudio undermined the

Miranda warnings he had initially been given. In Hart, we held that a suspect’s

waiver was not “voluntary, knowing, and intelligent” under the totality of the

circumstances. Id. at 895. The suspect was advised of his Miranda rights and signed

a form indicating that he wished to waive those rights. Id. at 893. While being

questioned, the suspect asked one particular officer “what were the pros and cons, in

her opinion, of hiring a lawyer.” Id. at 894. The officer responded that one

disadvantage would be that “the lawyer would tell Hart not to answer incriminating

questions,” and stated that “honesty wouldn’t hurt him.” Id.

We held that this latter statement “contradicted the Miranda warning”

previously given to Hart:

The phrase “honesty will not hurt you” is simply not
compatible with the phrase “anything you say can be used
against you in court.” The former suggested to Hart that an

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 incriminating statement would not have detrimental
consequences while the latter suggested (correctly) that an
incriminating statement would be presented at his trial as
evidence of his guilt.

Id.

By contradicting the Miranda warning that a suspect’s statements can later be

used against him, the officer in Hart was “misleading [the suspect] concerning the

consequences of relinquishing his right to remain silent.” Id. Consequently, Hart’s

“decision to waive his rights and confess was the product of [the officer’s] deception

and, as a result of her contradictory statements, he did not truly understand the nature

of his right against self-incrimination or the consequences that would result from

waiving it.” Id. (quoting United States v. Beale, 921 F.2d 1412, 1435 (11th Cir.

1991). Thus, the suspect’s waiver “was not voluntary, knowing, and intelligent as

required by Miranda.” Id.

In this case, Detective Gaudio gave Lall the Miranda warnings on the front

lawn of the house. Nevertheless, Gaudio testified that before he entered the bedroom,

he told Lall that he was not going to pursue any charges against him. Just as in Hart,

this representation contradicted the Miranda warnings previously given. Indeed, this

advice was far more misleading than that given in Hart. Our holding there compels

the conclusion that, as a result of Gaudio’s statements, Lall “did not truly understand

9
the nature of his right against self-incrimination or the consequences that would result

from waiving it.” Hart, 323 F.3d at 895.

Moreover, as in Hart, the totality of the circumstances in this case also bolster

Lall’s challenge to the propriety of his interrogation. The record shows that during

the interview with police, Lall was kept alone in his bedroom, isolated from his

family, and told that the purpose of any questioning was to protect Lall’s family from

future harm. These undisputed facts, taken together with Gaudio’s representations,

compel the conclusion that Lall did not make a “voluntary, knowing and intelligent

waiver of his privilege against self-incrimination and his right to counsel.” Beal, 921

F.2d at 1434.

2. Custodial Interrogation

The U.S. Attorney argues that Lall was not in custody at the time of his

interrogation and that compliance with Miranda was unnecessary. A suspect is only

entitled to Miranda warnings when he is interrogated while in custody, because such

circumstances are presumed to exert pressure on him to speak. See Miranda, 384

U.S. at 444. In determining whether a person was in custody, we look to whether he

was physically deprived of his freedom in any significant way or if a reasonable

person in the defendant’s position would have understood that his freedom was so

10
restrained. “[T]he ultimate inquiry is simply whether there is a formal arrest or

restraint on freedom of movement of the degree associated with a formal arrest.”

Yarborough v. Alvarado, 541 U.S. 652, 662 (2004) (quoting California v. Beheler,

463 U.S. 1121, 1125 (1983)). “The test is objective: the actual, subjective beliefs of

the defendant and the interviewing officer on whether the defendant was free to leave

are irrelevant.” United States v. Moya, 74 F.3d 1117, 1119 (11th Cir. 1996). Thus,

“[a] policeman’s unarticulated plan has no bearing on the question whether a suspect

was ‘in custody’ at a particular time; the only relevant inquiry is how a reasonable

man in the suspect’s position would have understood his situation.” Berkemer v.

McCarty, 468 U.S. 420, 442 (1984). Accordingly, “[c]ourts must examine ‘all of the

circumstances surrounding the interrogation’ and determine ‘how a reasonable person

in the position of the individual being questioned would gauge the breadth of his or

her freedom of action.’” Yarborough, 541 U.S. at 663 (quoting Stansbury v.

California, 511 U.S. 318, 332 (1994)); see also United States v. Brown, 441 F.3d

1330, 1349 (11th Cir. 2006) (“No particular fact in the ‘custody’ analysis is outcome

determinative—we simply weigh the totality of the circumstances.”).

Whether a person was in custody is a mixed question of law and fact, and “we

review the district court’s factual findings on the matter for clear error and its legal

conclusions de novo.” United States v. McDowell, 250 F.3d 1354, 1361 (11th Cir.

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2001) (citing Moya, 74 F.3d at 1119). The U.S. Attorney argues here that Lall was

not in custody at any time during the night of the robbery, an argument that was

accepted by the district judge, who found that “the Defendant was not in custody.”

This holding was not supported by any specific findings of fact, and our review of the

record suggests that it would be unwise to resolve this issue without the benefit of

such findings. Nevertheless, a remand for this purpose is unnecessary because we

conclude that Lall’s confession is inadmissible for other reasons.

3. The Due Process Clause

Even if Lall was not in custody in the technical sense (and thus Miranda

warnings were not required), we would still be required to address the voluntariness

of his confession. While the failure to comply with Miranda creates a presumption

that a confession was not voluntary, an examination of the totality of the

circumstances is necessary to determine whether the confession was actually

voluntarily given. See Arizona v. Fulminante, 499 U.S. 279, 287 (1991); see also

Jarrell v. Balkcom, 735 F.2d 1242, 1252 (11th Cir. 1984) (“[E]ven if a court finds

compliance with Miranda, the court must still rule on the confession’s

voluntariness.”). While we give deference to the district court’s factual findings, we

review de novo whether, all circumstances considered, Lall’s confession was

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voluntary and therefore admissible. See Miller v. Fenton, 474 U.S. 104, 115(1986);

see also Housel v. Head, 238 F.3d 1289, 1299 (11th Cir. 2001).

In Bram v. United States, 168 U.S. 532 (1897), the Supreme Court observed

that “a confession, in order to be admissible, must be free and voluntary; that is, must

not be extracted by any sort of threats or violence, nor obtained by any direct or

implied promises, however slight.” Id. at 542 (internal quotations omitted). In Brady

v. United States, 397 U.S. 742 (1970), the Supreme Court explained that Bram

suggested that “even a mild promise of leniency,” though not “an illegal act as such,”

undermines the voluntariness of a confession “because defendants at such times are

too sensitive to inducement and the possible impact on them too great to ignore and

too difficult to assess.” Id. at 754. Nevertheless, Bram’s suggestion of a per se rule

that would render a confession involuntary if it was preceded by “any direct or

implied promises, however slight,” has been rejected by the Supreme Court. See

Fulminante, 499 U.S. at 284-85. Instead, the issue of voluntariness must be

determined by examining the totality of the circumstances. Id. The burden is on the

prosecution to establish, by a preponderance of the evidence, that a challenged

confession was voluntary. Lego v. Twombly, 404 U.S. 477, 489 (1972).

While we look to the totality of the circumstances to determine the

voluntariness of Lall’s confession, a significant aspect of that inquiry here involves

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the effect of deception in obtaining a confession. We begin by observing that the

deception at issue here did not involve a misrepresentation of fact. Such

misrepresentations are not enough to render a suspect’s ensuing confession

involuntary, nor does it undermine the waiver of the defendant’s Miranda rights. See,

e.g., Frazier v. Cupp, 394 U.S. 731, 739 (1969) (police falsely told suspect that his

cousin had implicated him); Lucero v. Kerby, 133 F.3d 1299, 1311 (10th Cir. 1998)

(police falsely stated that suspect’s fingerprints were found at the crime scene);

Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir. 1992) (police misrepresented the

strength of the case against the suspect). Police misrepresentations of law, on the

other hand, are much more likely to render a suspect’s confession involuntary. See,

e.g., Henry v. Kernan, 197 F.3d 1021, 1027-28 (9th Cir. 1999) (police stated to

suspect “what you say can’t be used against you right now”); see also Hopkins v.

Cockrell, 325 F.3d 579, 584-85 (5th Cir. 2003) (officer assured suspect “that their

conversation was confidential”).

United States v. Walton, 10 F.3d 1024 (3d Cir. 1993), is particularly instructive.

There, law enforcement officers met with a suspect on a park bench. Id. at 1027. The

suspect was not in custody and Miranda warnings were never given. Id. During the

conversation, an officer stated “I’ve known you for a long time. If you want, you can

tell us what happened off the cuff.” Id. at 1028. Because the term “off the cuff”

14
would have been interpreted by the suspect to mean that anything he said would not

be used against him, id. at 1030, the Third Circuit concluded that the officer’s

assurance was sufficiently coercive to render the suspect’s subsequent admissions

involuntary. Id. at 1032; see also United States v. Thompson, 422 F.3d 1285, 1295-

96 (11th Cir. 2005) (“Sufficiently coercive conduct normally involves subjecting the

accused to an exhaustingly long interrogation, the application of physical force or the

threat to do so, or the making of a promise that induces a confession.”) (emphasis

added), cert. denied, 549 U.S. 1087 (2006).

While Walton assessed the totality of the circumstances in determining the

voluntariness of the suspect’s confession, it emphasized that

this does not diminish the significance of the promise itself;
given the uniquely influential nature of a promise from a law
enforcement official not to use a suspect's inculpatory
statement, such a promise may be the most significant factor
in assessing the voluntariness of an accused's confession in
light of the totality of the circumstances.

10 F.3d at 1030 (citation omitted); see also Streetman v. Lynaugh, 812 F.2d 950, 957

(5th Cir. 1987) (“Similarly, certain promises, if not kept, are so attractive that they

render a resulting confession involuntary . . . A promise of immediate release or that

any statement will not be used against the accused is such a promise.”) (internal

citations omitted). The Walton Court continued: “Given the circumstances, there was

15
no reason for Walton to disbelieve [the officer] that nothing he said would be used

against him.” Id. at 1030. Accordingly, it found that Walton’s confession should not

have been admitted at trial. Id. at 1032.

Judge Posner has provided a thoughtful basis for the holdings in cases such as

Walton. In United States v. Rutledge, 900 F.2d 1127 (7th Cir. 1990), he observed that

through promises of non-prosecution, “the government has made it impossible for the

defendant to make a rational choice as to whether to confess—has made it in other

words impossible for him to weigh the pros and cons of confessing and go with the

balance as it appears at the time.” Id. at 1129. Thus, “if the government feeds the

defendant false information that seriously distorts his choice . . . then the confession

must go out.” Id. Speaking to the facts of the case before him, he continued:

If the officers, fully intending to use anything Rutledge said
against him, had said to him, “Tell us all you know about the
drug trade, and we promise you that nothing you tell us will be
used against you,” then he would have a strong argument that
any ensuing confession had been extracted by fraud and was
involuntary. Quartararo v. Mantello, 715 F. Supp. 449, 460-
61 (E.D.N.Y.), aff’d without opinion, 888 F.2d 126 (2d Cir.
1989). For in our hypothetical case the officers would have
deflected Rutledge from weighing the pros and cons of
confessing and going in the direction that the balance leaned.
Alternatively, Rutledge could in our hypothetical case hold the
government to its promise, and could do so whether or not the
promise was fraudulent.

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Id. at 1130.

As already discussed, Gaudio explicitly assured Lall that anything he said

would not be used to prosecute him. Moreover, there is ample record evidence to

support a finding that Gaudio’s promise was deceptive. Lall testified that Gaudio told

him he would not be charged for any statements or evidence collected on the night

of the robbery, and this was corroborated by Gaudio’s testimony at the suppression

hearing. It is inconceivable that Lall, an uncounseled twenty-year-old, understood

at the time that a promise by Gaudio that he was not going to pursue any charges did

not preclude the use of the confession in a federal prosecution. Indeed, it is utterly

unreasonable to expect any uncounseled layperson, especially someone in Lall’s

position, to so parse Gaudio’s words. On the contrary, the only plausible

interpretation of Gaudio’s representations, semantic technicalities aside, was that the

information Lall provided would not be used against him by Gaudio or anyone else.

Under these circumstances, Gaudio’s statements were sufficient to render Lall’s

confession involuntary and to undermine completely the prophylactic effect of the

Miranda warnings Gaudio previously administered.

In reaching his decision to deny Lall’s motion to suppress, the district judge

stated that Gaudio’s assurance of non-prosecution “doesn’t bind the United States

Government,” and concluded that the promise was “not a lie. [Gaudio is] doing it

17
truthfully because he is a robbery detective. He’s not acting for the Secret Service.

That’s the difference.” The district judge also stated: “See, all of your arguments

would make sense if the Secret Service Agent had gone to the home, if the Secret

Service Agent had made promises, if the Secret Service Agent had told the defendant

and his family just for corroboration, but he’s an adult, to do that.”

This statement clearly implies that, if the Secret Service had made the promise

that Lall’s confession would not be used to prosecute him, then such an assurance

would have rendered the confession involuntary. An involuntary confession,

however, is inadmissible in a federal prosecution even if it was improperly coerced

by state law enforcement officers. Indeed, almost a half century ago, in Murphy v.

Waterfront Commission of New York Harbor, 378 U.S. 52 (1964), the Supreme Court

held that “the constitutional privilege against self-incrimination protects a state

witness against incrimination under federal as well as state law and a federal witness

against incrimination under state as well as federal law.” Id. at 78. More specific to

the present case, it held that if a witness was compelled to testify in a state

proceeding, his testimony could not be used against him in a federal prosecution. Id.;

see also United States v. Balsys, 524 U.S. 670, 683 (1998). Consequently, it is

irrelevant whether the tactics used to obtain Lall’s confession were employed by state

or federal officials.

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 Taylor v. Singletary, 148 F.3d 1276 (11th Cir. 1998), does not hold to the

contrary. In Taylor, we held that state officials were not bound by a written immunity

agreement between the defendant, who was represented by counsel, and federal

officials. Id. at 1280. The voluntarily-entered agreement, through which the

defendant agreed to offer self-incriminating testimony in exchange for immunity,

specifically stated: “This agreement is limited to the United States Attorney’s Office

for the Southern District of Florida and cannot bind other federal, state of [sic] local

prosecuting authorities.” Id. at 1278. Under the circumstances, we found that there

was no basis for concluding that the statements made pursuant to the agreement were

involuntary. Id. at 1281-82. Indeed, the express agreement “did not on its face bind

state authorities,” id. at 1284, because it "only obligate[d] the United States Attorney

for the Southern District not to use the information, and perhaps not to disseminate

it to other law enforcement authorities. 148 F.3d at 1284 (emphasis added).

Moreover, we observed that “[t]here is no evidence that the United States Attorney

so disseminated any information provided pursuant to the informal immunity

agreement; Taylor only challenges the use of his Bancoshares testimony, which was

a matter of public record.” Id. at 1284 n.9. Thus, even though we found that Taylor's

immunity agreement did not preclude state prosecutors from using his testimony, we

strongly suggested that the agreement did not allow federal prosecutors to actively

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turn over that evidence to state prosecutors. Indeed, the evidence obtained by the

state prosecutor came from the testimony Taylor gave at the federal trial, which was

a matter of public record.

B. The Second Confession

Lall’s second confession, which was given to Gaudio at the police station

several days after the robbery, is likewise inadmissible. Because Lall failed to move

to exclude this statement in his pretrial motion to suppress, the threshold issue is

whether the admissibility of the second statement was properly preserved for our

review. "[A] defendant who fails to make a timely suppression motion cannot raise

that claim for the first time on appeal." United States v. Pope, 467 F.3d 912, 918 (5th

Cir. 2006). Motions to suppress illegally obtained evidence must be made prior to

trial or such objections are deemed waived, Fed.R.Crim.P. 12(b)(3), though this

waiver may be excused for good cause. See Davis v. United States, 411 U.S. 233, 249

(1973); United States v. Taylor, 792 F.3d 1019, 1025 (11th Cir. 1986).

Lall argues that he failed to move to suppress the second confession because

he never received notice from the U.S. Attorney, prior to filing his suppression

motion, that he intended to use the statement at trial. There is substantial evidence

in the record to support this claim. The discovery response prior to the suppression

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hearing made no mention of Lall’s second confession. Indeed, the response included

the entire police report prepared by Detective Gaudio, which did not discuss Lall’s

second confession at the police station because it had been prepared on a date prior

to that interview. Additionally, Lall’s attorney claims that he believed the second

confession had been recorded by Gaudio at the police station and, if the U.S. Attorney

planned to use the statement at trial, he would have received notice of any plan to

introduce the recording. As Lall’s attorney explained at trial:

The problem for us is we thought that there was a recording of
[the second confession]. I not only would have pursued a
suppression motion, but I would have pursued more the
recording issue. Mr. Lance Lall absolutely swore up and
down to me from the beginning that there was a recording.
Thus, I never expected it to come in unless I saw a recording.
The detective said he’s going to go look for the recording just
on my request, to see if he could find a recording. Again, even
with that, the Government never said, if he finds it we’re
going to introduce it or we plan to change our mind, or
anything like that.

Indeed, Lall’s attorney stated: “What we left it at the suppression hearing was I

brought [the second confession] up. The Government didn’t even know that it had

been made.”

The record of the suppression hearing confirms this representation; it

demonstrates that when Lall’s attorney first raised the second confession for purposes

21
of establishing Gaudio’s ordinary practice of giving Miranda warnings, it was the

Assistant U.S. Attorney who objected on relevancy grounds:

Q: The next day when you give [sic] the Miranda rights, you
did give [Lall] the Miranda warnings on the second day when
he comes [sic] to the police station?

A: Yes.

Q: And he signs the Miranda –

[Government]: Objection. What did or did not happen on the
second day is not an issue here.

The Court: Overruled. You’ve got to give me the legal basis
for the objection. No speaking objection.

[Government]: Relevance.

(emphasis added). The fact that the Assistant U.S. Attorney argued that “[w]hat did

or did not happen on the second day is not an issue here” suggests clearly that the

second confession was not going to be offered at trial.

The record does indicate, however, that sometime after the suppression hearing,

perhaps immediately before the start of trial, Lall learned that the U.S. Attorney

planned to introduce the second confession as part of his case-in-chief. Specifically,

his opening statement appears to anticipate that both confessions would be

introduced, although he later objected unsuccessfully to the admissibility of the

22
second confession only on the ground that the prosecutor failed to comply with his

discovery obligations under Fed.R.Crim.P. 16. While it is difficult to know what to

make of all this, it is clear that the district judge could have properly denied Lall’s

motion to strike Gaudio’s testimony regarding the second statement because the

record indicates that Lall’s attorney knew before trial that the second statement was

going to be offered and made no objection when he learned of that fact, nor did he

object to its admission when the testimony was initially offered at trial on the grounds

that he argues here. Nevertheless, the district judge ultimately addressed the merits

of the admissibility of the second confession on those grounds.

Thus, when Lall’s attorney asked that the jury be told to disregard any

testimony about the second confession, the district judge said that he wanted to know

“why should the second statement be suppressed. What happened at the second

statement?” Lall’s attorney responded that both Lall and his father were “told by

Detective Gaudio bring your son down [to the police station] on Saturday. Mr. Lall

says, do I need to bring a lawyer, literally says do I need to bring a lawyer. The

response at that point is, to him–he explains it very clear. He says, no, I am not going

to turn this over to the State Attorney. I’m not going to pursue charges.” Lall’s

attorney also stated that Lall was Mirandized at this interview.

The district judge then asked: “What does the Government wish to say

23
regarding it? The second statement.” In response, the prosecutor did not contest the

accuracy of the offer of proof and relied solely on the erroneous claim that the issue

of the second confession’s admissibility was raised during the suppression hearing:

“I don't know what to say, Judge, because we had a suppression hearing on the

entirety of Lance Lall’s statements and the entirety of the items that were taken from

his bedroom, all of which already have been addressed.”

The district judge ultimately denied the renewed motion to suppress the first

confession and, regarding the second confession, stated to Lall’s attorney: “Let’s

assume all of that were true and you could prove it . . . it doesn’t matter. If legally it’s

the same argument, what difference does it make?,” and added that: “The content [of

the second confession] is the same as the first,” and “it’s the same legal issue, second

statement or first statement.” Based on this finding, the district judge denied the

motion for an instruction directing the jury to disregard the second confession: “I’m

going to reject the curative instruction. What else did you want to preserve?”

(emphasis added).

This ruling by the district court is enough to preserve the issue for our review.

As we held in United States v. Crosby, 739 F.2d 1542 (11th Cir. 1984):

Appellants did not make a pre-trial motion to suppress the
evidence of the suitcases as required by Fed.R.Crim.P. 12(b)
and first raised this motion at trial. Under Rule 12(f) this

24
 waived the issue, and the district court would not have abused
its discretion under Rule 12(f) if it had denied the motion
solely on the ground of appellants’ non-compliance with
pre-trial procedure. However, the district court did not rely
solely on appellants’ pre-trial omission, but rather heard
argument on the motion to suppress. We thus consider the
merits of the trial court’s ruling.

Id. at 1548; see United States v. Contreras, 667 F.2d 976, 978 n.2 (11th Cir. 1982);

United States v. Hicks, 524 F.2d 1001, 1003 (5th Cir. 1973); see also United States

v. Vasquez, 858 F.2d 1387, 1389 (9th Cir.1988), cert. denied, 488 U.S. 1034 (1989).

The circumstances here are comparable to Crosby. Indeed, the U.S. Attorney here did

not argue below, and he does not argue now, that Lall waived his right to challenge

the admissibility of the second confession by his failure to comply with Rule 12(b),

or that he procedurally forfeited his objection by failing to properly object when

Gaudio was asked to testify about the confession at trial. This provides an additional

basis for not applying any waiver or procedural forfeiture rule. See United States v.

Cichon, 48 F.3d 269, 275 (7th Cir. 1995) (holding that the defendant’s failure to

move to suppress statements as involuntary would normally constitute a waiver,

“[h]owever, the government does not argue that the issue has been waived and

therefore we shall not pursue the matter further”); cf. Howard v. United States, 374

F.3d 1068, 1073 (11th Cir. 2004) (holding that a procedural forfeiture during a

25
criminal prosecution would not preclude review in a collateral proceeding pursuant

to 28 U.S.C. § 2255, because “the government is itself barred from raising that

affirmative defense because of its own default”). Consequently, we consider the

merits of Lall’s challenge to the admissibility of the second confession.

The district judge found the substantive content of Lall’s first and second

confessions to be the same, as were the legal issues surrounding them, and stated that

the second interview “doesn't really change anything.” In his brief here, the U.S.

Attorney’s only response to Lall’s argument is that he “stands by its arguments set

forth” in his discussion of the admissibility of the first confession. Because of this

concession, which is consistent with the district court’s holding that the issues raised

by the second interview are identical to the first, we conclude that Lall’s confession

at the police station was similarly the product of improper promises of

non-prosecution and thus not voluntary. Indeed, the circumstances of the second

interview may lean more heavily towards a finding that Lall’s cooperation was

involuntary. The interview took place at a police station rather than Lall’s house,

Gaudio told Lall’s father that they not need bring a lawyer with them, and Gaudio’s

promises of non-prosecution came after he had already contacted federal officials and

alerted them to the existence of the original evidence held against Lall. In effect,

Gaudio was acting on behalf of the Secret Service.

26
C. Physical Evidence

While a confession obtained in violation of Miranda is inadmissible, the

physical evidence derived from such a confession is not subject to the Miranda

exclusionary rule assuming the predicate for its admissibility can be satisfied without

resort to the confession. See Oregon v. Elstad, 470 U.S. 298, 305-6 (1985); Michigan

v. Tucker, 417 U.S. 433, 450 (1974). The rule is otherwise for evidence derived from

an involuntary confession obtained in violation of the Due Process Clause. Id. In this

case, we have found Lall’s confession involuntary—a conclusion that compels the

suppression of any physical evidence derived from it. The record is clear that the

physical evidence seized from Lall’s bedroom was the fruit of the coerced confession.

While there is an issue of fact as to whether the items were in plain view, even

if the physical evidence was plainly visible, it was only subject to seizure if its

“incriminating character [is] immediately apparent.” Horton v. California, 496 U.S.

128, 136 (1990). “If, however, the police lack probable cause to believe that an

object in plain view is contraband without conducting some further search of the

object—i.e., if its incriminating character [is not] immediately apparent—the

plain-view doctrine cannot justify its seizure.” Minnesota v. Dickerson, 508 U.S.

366, 375 (1993) (citing Arizona v. Hicks, 480 U.S. 321(1987)) (internal quotations

27
and citation omitted).

The record clearly shows that Gaudio did not have probable cause to seize the

physical evidence because he had no idea what this equipment was and could not

have recognized it as incriminating evidence without the benefit of Lall’s admission.

In describing Lall’s bedroom, Gaudio testified: “In the room it was a disarray. There

was computer equipment about. It was in plain view, not knowing what it was, but

it was there.” (emphasis added). By his own admission, Gaudio lacked the ability to

recognize which devices, if any, were used for conducting criminal activity. He

testified during the suppression hearing: “I’m not a computer guy, I’m looking right

at the stuff and I cannot tell you what an embosser was or a skimmer or anything at

the time. [Lall] showed us what the items would be, that [the robbers] should have

been looking for and should have taken were right here . . . And he explained what

everything does.” He further stated that Lall “handed me several, I mean, items,

computer, electronic nature. I really don’t know what they were at the time. Again,

that’s not my forte. I really don’t know.” Indeed, Gaudio admitted that while Lall

was showing him the equipment, Gaudio “even contacted my normal partner who’s

computer savvy if you want to put it that way. I couldn’t get a hold of him to see if

he could help me out in describing some of this stuff that I was impounding.”

Regarding the machine used to emboss credit cards, Gaudio testified:

28
 Q: Now, you said the items were in plain view, but on the
other hand, this what you call an embossing machine
was covered up by books?

A: No, I did not say they were covered by books. I said
there were books on top of it. It’s a square box as the
Judge said maybe a foot-and-a-half, two feet, and books
are stacked on top of it where you can see it.

Q: In any event, you said you did know what it did?

A: I couldn’t tell you what it did.

Q: You didn’t see any criminal value to it?

A: At the time, no. It didn’t have a sign that said
embossing machine on it, no.

Indeed, the district judge agreed that Detective Gaudio lacked the ability to

recognize the items seized: “He doesn’t know what the computer is, what the printer

is, what an embosser is, skimmer.” Consequently, without Lall’s statements and

cooperation, Detective Gaudio lacked probable cause to seize the devices as

contraband, whether they were found in plain view or not, because their incriminating

character was not “immediately apparent.” Horton, 496 U.S. at 136.

United States v. Smith, 459 F.3d 1276 (11th Cir. 2006), to which the U.S.

Attorney cites, does not compel a contrary conclusion. In that case, police officers

were lawfully present within a home pursuant to a warrant authorizing a search for

29
drugs. A police dog alerted the officers to a lockbox, which, when opened, was found

to contain child pornography that was subsequently seized under the plain view

doctrine. The defendant sought to suppress the pornography on the grounds that the

pictures, although pornographic, did not obviously involve minors and thus the

criminality of the evidence was not “immediately apparent” to the police officers at

the time it was taken. In rejecting this argument, we relied on the testimony of

several witnesses, including the police officer who seized the photographs, that the

girls in the photographs “looked extremely young, very very young,” and that it was

“obvious” that the girls were minors. Id. This testimony was corroborated by that of

a detective with extensive experience investigating sex crimes and child abuse, who

stated that “some of the females in the photos were clearly minors with one likely as

young as eleven.” Id. We held that the evidence was properly seized, stating that

“[t]here is no rule of law which requires an officer to know with absolute certainty

that all elements of a putative crime have been completed when he seizes an article

which reasonably appears to be incriminating evidence.” Id. at 1292.

Here, in stark contrast to Smith, Detective Gaudio never testified that he

believed the seized equipment’s criminal characteristics were immediately apparent.

In fact, he testified entirely to the contrary, stating that he couldn’t tell you what the

devices looked like, what they did, or how they were used. When asked: “You didn’t

30
see any criminal value to it?,” Gaudio responded: “At the time, no.” Unlike the

officer in Smith, who made a reasonable determination regarding evidence that was

obviously criminal in nature, Detective Gaudio did not have the slightest clue that the

equipment was incriminating until Lall told him. Accordingly, Smith does not affect

our decision in this case.

D. Harmless Error Analysis

The admission of evidence obtained in violation of Miranda is subject to

harmless error analysis. Hart, 323 F.3d at 895. The same is true regarding an

involuntary confession obtained in violation of due process. Fulminante, 499 U.S.

at 1265. In order to find that an error was harmless on direct appeal, we must

“declare a belief that it is harmless beyond a reasonable doubt.” Chapman v.

California, 386 U.S. 18, 24 (1967). Here, the nature of Lall’s statements and the

physical evidence taken from his bedroom make it impossible to conclude that their

admission was harmless beyond a reasonable doubt. The only other inculpatory

evidence was the testimony of Sobrina Mathurin, a cooperating witness who claimed

to have conspired with Lall to commit identity and credit fraud. Significantly, in his

closing argument, the Assistant U.S. Attorney acknowledged the weakness of

Mathurin’s testimony and admitted to the jury that his case hinged on the evidence

31
directly obtained from Lall:

Folks, if none of this [physical evidence] were here, none of
this, and if Lance Lall’s statements were not before you, I
would tend to agree with defense counsel about the challenges
that he lodged on Sobrina Mathurin’s credibility, because,
after all, what happens if you take away all this stuff and all of
Lance Lall’s statments? What are you left with? Sobrina
Mathurin, not a real pretty witness and not a real strong case
for the government.

We agree with this assessment.1

III. Conclusion

The judgment of conviction is reversed and the case is remanded to the

district court for further proceedings consistent with this opinion.

1
Lall also argues that the district judge abused his discretion in denying Lall’s motion
to reconsider the suppression motion as it related to the first confession. That motion was predicated
on Lall’s claim that certain evidence had been withheld from him regarding the issue whether the
physical evidence seized from his bedroom was found in plain view. Because we find that the
incriminating nature of the items taken from the bedroom was not apparent, even if they were in
plain view, we need not decide this issue.

32
COX, Circuit Judge, specially concurring:

I do not join Judge Korman’s opinion for the court. I agree that Lall’s first

confession, given on the night of the home invasion, was involuntary, and that

evidence of that confession and the physical evidence derived therefrom is

inadmissible. The trial court’s error in admitting this evidence was not harmless.

Accordingly, I concur in the judgment. But I would not reach the issue of whether

Lall’s second confession, given to Detective Gaudio at the police station, was

involuntary and inadmissible.

As Judge Korman’s opinion notes, the second confession was not the subject

of a pretrial motion to suppress. This confession, however, was not introduced at

trial, though there is some brief discussion of it in Detective Gaudio’s testimony.

Gaudio testified that at the police station, Lall admitted that he had been involved in

credit card fraud for over a year and he suggested that one of his clients in the illegal

activity may have committed the home invasion. (R.4-66 at 249.) I have reservations

about whether objections on constitutional grounds to the brief discussion of this

second confession were properly preserved. And, if they were, I have reservations

about the merits. In my view, however, we need not address these issues because the

limited testimony admitted about the second confession does not render the admission

of the first confession and the physical evidence derived therefrom harmless beyond

33
a reasonable doubt.

The admission of the first confession and the physical evidence at issue was

error that implicates a constitutional right. So, in the harmless error analysis, we ask

“whether it appears ‘beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained.’” Neder v. United States, 527 U.S. 1, 15, 119 S.

Ct. 1827, 1837 (1999) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct.

824, 828 (1967). The record indicates that the erroneously admitted evidence was

essential to the Government’s case. After considering all other evidence introduced

at trial, including the limited testimony about the second confession, I cannot

conclude beyond a reasonable doubt that the inadmissible evidence obtained on the

evening of the home invasion did not contribute to Lall’s conviction. During cross

examination, Gaudio made clear that the bulk of his testimony describing Lall’s

admissions was derived from statements made on the night of the home invasion, not

from statements made at the police station:

Q. You only prepared one report in this case?
A. Yes.
Q. And that was the report that the prosecutor showed you about
a half an hour ago?
A. Yes.
Q. And is it fair to say that in that report you did not make any
reference to anything that was discussed during the interview that took
place at the police station?
A. Correct.

34
 Q. And the only information that you recorded in the report was
information that you got on the night of the home invasion, correct?
A. Correct.
Q. And essentially, you’ve summarized that for us, correct, the
contents of the report?
A. I told what happened, yeah.

(Id. at 269.) Gaudio’s testimony regarding the second confession, while damaging

to Lall, does little to support the elements of the charged offenses. So, even if this

evidence were properly admitted, it would not render harmless beyond a reasonable

doubt the erroneous admission of the first confession and the physical evidence

derived therefrom. The “minds of an average jury” would have found the

Government’s case less persuasive if this evidence had been excluded. See United

States v. Gari, 572 F.3d 1352, 1363 (11th Cir. 2009) (citation omitted). Thus I

concur in the judgment of the court reversing Lall’s convictions.

35