United States v. Taylor

11-2201(L)
United States v. Taylor

1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 August Term, 2013
6
7
8 Argued: February 4, 2013 Decided: December 4, 2013
9 Petition for Rehearing Filed: January 17, 2014
10 Decided: March 4, 2014
11
12 Docket Nos. 11-2201(L), 11-2426(CON), 11-2639(CON)
13
14 - - - - - - - - - - - - - - - - - - - -x
15
16 UNITED STATES OF AMERICA,
17
18 Appellee,
19
20 - v.-
21
22 CURTIS TAYLOR, ANTONIO ROSARIO, AKA Chickee, SAMUEL VASQUEZ,
23 AKA Rock,
24
25 Defendants-Appellants.
26
27 - - - - - - - - - - - - - - - - - - - -x
28

29 Before: KEARSE, JACOBS and CARNEY,
30 Circuit Judges.
31
32 Curtis Taylor, Antonio Rosario, and Samuel Vasquez

33 appeal the judgments of the United States District Court for

34 the Southern District of New York (Marrero, J.), convicting

35 them of various charges related to a robbery of a pharmacy

36 in midtown Manhattan. Because Taylor’s post-arrest

37 statements were not voluntary, and were not properly
1 redacted, the convictions are VACATED, and the case is

2 REMANDED for a new trial.

3 KELLEY J. SHARKEY, Brooklyn, New
4 York, for Defendant-Appellant
5 Curtis Taylor.
6
7 JILLIAN S. HARRINGTON, Monroe
8 Township, New Jersey, for
9 Defendant-Appellant Antonio
10 Rosario.
11
12 COLLEEN P. CASSIDY, Federal
13 Defenders of New York, Inc., New
14 York, New York, for Defendant-
15 Appellant Samuel Vasquez.
16
17 CHRISTOPHER D. FREY (Michael
18 Bosworth, on the brief),
19 Assistant United States
20 Attorneys, for Preet Bharara,
21 United States Attorney for the
22 Southern District of New York,
23 New York, New York, for
24 Appellee.
25
26 DENNIS JACOBS, Circuit Judge:
27
28 The United States petitions for rehearing following our

29 decision in United States v. Taylor, 736 F.3d 661 (2d Cir.

30 2013). The petition is granted, and the opinion filed

31 December 4, 2013 is withdrawn. For the reasons that follow

32 in our revised opinion, we vacate the convictions of the

33 three defendants and remand for a new trial.

34 Curtis Taylor, Antonio Rosario, and Samuel Vasquez

35 appeal judgments of conviction entered in the United States

2
1 District Court for the Southern District of New York

2 (Marrero, J.) for conspiring to commit Hobbs Act robbery and

3 brandishing a firearm during a crime of violence, among

4 other offenses related to the robbery of a pharmacy in

5 midtown Manhattan. Taylor, who claims to have attempted

6 suicide by pills as he was arrested, argues that he was

7 incapacitated when he incriminated himself post-arrest, and

8 that the court’s decision to admit those statements into

9 evidence violated his rights under Miranda v. Arizona, 384

10 U.S. 436 (1966), and the Due Process Clause of the

11 Constitution. Rosario and Vasquez, who raise separate

12 issues, join Taylor’s challenge to the extent that Taylor’s

13 confession was used against them, and appeal the denial of

14 their motion to sever on the ground that Taylor’s statements

15 caused prejudicial spillover and violated the confrontation

16 right protected under Bruton v. United States, 391 U.S. 123

17 (1968).

18 This is a close case. But even assuming that Taylor’s

19 initial waiver of his Miranda rights was knowing and

20 voluntary, Taylor was largely stupefied when he made his

21 post-arrest statements, as confirmed by the testimony of the

22 law enforcement agents and the pretrial services officer who

3
1 interviewed him, and by the evaluations of staff

2 psychologists at the Metropolitan Correctional Center

3 (“MCC”). The agents and officer testified that Taylor fell

4 asleep repeatedly during questioning and was only

5 intermittently alert. Although their testimony also

6 suggests--and the district court found--that Taylor’s

7 incriminating statements were made in relatively lucid

8 intervals, Taylor was impaired throughout, and his

9 interrogators took undue advantage of that impairment by

10 continuing to question him. We therefore conclude that

11 Taylor’s post-arrest statements were not voluntary. We

12 further conclude that admitting those statements into

13 evidence was not harmless. His conviction is therefore

14 vacated and remanded for a new trial. And because Taylor’s

15 statements were redacted in a manner that left obvious

16 indicia that the co-defendants’ names had been deleted,

17 their convictions are also vacated and remanded for a new

18 trial.

19 I

20 On Christmas Eve 2008, Vasquez drove Taylor and Rosario

21 from the Bronx to midtown Manhattan to rob a pharmacy. With

22 them was Luana Miller, a drug addict from Mississippi with

23 an extensive criminal history.

4
1 En route, Miller called the pharmacy and asked them to

2 stay open for a few minutes past 5:00 PM, so that she could

3 pick up a prescription. At the pharmacy, Miller went in

4 first, posing as a customer. As she spoke with the

5 pharmacist, Rosario burst in the door brandishing a gun,

6 screaming that it was a robbery, and demanding OxyContin: a

7 powerful opioid for pain that is often resold illegally.

8 The two took more than $12,000 of controlled substances, as

9 well as cash and subway cards, while Taylor stood lookout at

10 the front door and Vasquez waited in the getaway car. The

11 crew then drove back to the Bronx. Cell phone records for

12 Taylor, Rosario, and Vasquez show that they were in the

13 Bronx that afternoon, traveled to midtown Manhattan just

14 before 5:00 PM, stayed near the pharmacy until just after

15 the robbery, and then returned to the Bronx.

16 While executing a warrant at the home of Miller’s

17 boyfriend in January 2009, police arrested her on

18 outstanding warrants. Fearing extradition to Mississippi,

19 she offered to cooperate with the government’s investigation

20 of the pharmacy robbery, and led police to Taylor, Rosario,

21 and Vasquez.

22 Around 6:00 AM on April 9, 2009, over 25 NYPD and FBI

23 agents came to Taylor’s apartment to effect his arrest.

5
1 Taylor claims that, amid the ensuing chaos, he attempted

2 suicide by taking a bottle-full of Xanax pills. Taylor’s

3 daughter testified that her mother (who died before trial)

4 reported the overdose to an officer who dismissed her and

5 told her to “shut up.” Still, the record is less than clear

6 as to whether Taylor actually took the pills, and as to

7 whether officers were told of his overdose.

8 Around 9:30 that morning, Taylor was interviewed at FBI

9 headquarters in downtown Manhattan by New York City Police

10 Department Detective Ralph Burch, a member of an FBI/New

11 York health care fraud task force. Taylor signed a form

12 waiving his Miranda rights, and went on to give a lengthy

13 statement confessing his involvement in the robbery.

14 Taylor argues that he was falling asleep and was at

15 times unconscious during the interview. Detective Burch

16 said that it seemed like Taylor’s body was “somewhat

17 shutting down” during the two- to three-hour interview.

18 Supplemental App. 51. On the other hand, Burch testified

19 that, though Taylor nodded off at times, he was “coherent”

20 and “fluid” when he was awake and speaking:

21 Mr. Taylor at times was nodding off during the
22 interview. When we asked Mr. Taylor to listen up,
23 that we were asking him questions, he would
24 respond that he knew what he was being asked and
25 he would repeat the questions back to us to show

6
1 that he was understanding what was being asked of
2 him and knew what was going on.
3
4 Id. at 45. Detective Burch clarified that Taylor did not

5 need to be awakened during the interview; he just had to be

6 “refocused.” Id. at 46. “He seemed like he was dozing off,

7 and we had to stress did he understand what was going on.

8 . . . [I]t was my impression that he knew what was going on

9 then.” Id.

10 Taylor was later taken to a hospital for medical

11 clearance before his transfer into the custody of the

12 Marshals Service. FBI Special Agent Ian Tomas, who was also

13 involved in the interrogation, explained that Taylor was

14 taken to the hospital because “[t]here was some talk about

15 him on some medication and possibly an injury he had

16 sustained previous at a construction site.” Id. at 137.

17 Agent Tomas clarified that the hospital visit was necessary

18 because there was some question as to whether the Marshals

19 Service would take custody of someone who “might be off”:

20 “We felt that his do[z]ing off might be a reason the

21 marshals wouldn’t accept the custody of Mr. Taylor.” Id. at

22 160. Taylor spent the rest of the day at the hospital

23 sleeping, but he did not receive medical attention. He was

24 transferred to the MCC later that evening.

7
1 The next morning, April 10, Taylor met with MCC staff

2 psychologists. The MCC’s chief psychologist, Dr. Elissa

3 Miller, explained that they wanted to evaluate Taylor before

4 his arraignment because they knew of Taylor’s earlier

5 schizophrenia diagnosis and several prior attempts at

6 suicide. According to Dr. Miller (who reported on findings

7 by staff psychologists), Taylor “presented with a thought

8 disorder,” drooled, was vague, stared blankly, and “[h]is

9 thoughts lacked spontaneity.” Id. at 110. Miller testified

10 that “if you asked him questions, he really couldn’t

11 elaborate on them because his thought process was impaired.”

12 Id. at 111.

13 Taylor also told one of the staff psychologists that

14 “the day he was arrested by the FBI, he took multiple Xanax

15 pills in an attempt to kill himself because he had promised

16 himself that he would never go back to jail.” Id. at 113.

17 Taylor told Miller that, “[a]s a result of taking all those

18 Xanax pills, he . . . wasn’t waking up and he went to the

19 hospital.” Id.

20 He was then taken to the courthouse for arraignment.

21 While awaiting arrival of a pretrial services officer,

22 Taylor told Agent Tomas that “he wanted to clear up some

23 issues about the charges that he was presented with.” Id.

8
1 at 139. Agent Tomas took Taylor to an interview room and

2 again advised him of his Miranda rights; Taylor confessed to

3 the robbery again.

4 Around 12:30 PM that day, Taylor met with Dennis

5 Khilkevich, a pretrial services officer. Khilkevich

6 testified that when he arrived for the interview, Taylor

7 “appeared sleepy and had to be awakened to be interviewed.”

8 Id. at 319. “He was sitting in a chair and he appeared as

9 if he was asleep or he was taking a nap.” Id. Khilkevich

10 stopped the interview because Taylor “repeatedly fell asleep

11 in the chair.” Id. at 320. When the interview resumed,

12 Taylor “was initially responsive maybe for several minutes,”

13 but “[t]hen he continued to fall asleep.” Id. “He had to

14 be woken up and he would be responsive for a few minutes and

15 then he would go to sleep again.” Id. Khilkevich

16 eventually finished the interview, explaining that Taylor

17 was awake and coherent “[a]t times.” Id. at 323.

18 As to the other defendants:

19 • Rosario was also arrested on April 9, 2009, and

20 waived his Miranda rights. He claimed at first

21 that he was in the hospital the day of the

22 robbery, but then said he had actually been at his

23 girlfriend’s house in Queens. When told that a

9
1 surveillance video showed a suspect like him,

2 Rosario laughed and ambiguously said “yeah.”

3 Trial Transcript (“Tr.”) 571.

4 • Vasquez was arrested a day earlier, on April 8,

5 after surveillance linked him to the car believed

6 to have been used in the pharmacy robbery. When

7 arrested, he was carrying car keys, a cell phone,

8 and a piece of paper listing various milligram

9 doses of oxycodone and OxyContin, along with the

10 number of pills of each dose. Vasquez gave no

11 statement to police.

12 The indictment charged the three with (1) conspiracy to

13 commit Hobbs Act robbery, in violation of 18 U.S.C. §

14 1951(b)(1); (2) Hobbs Act robbery; and (3) use, possession,

15 and brandishing of a firearm during a crime of violence, in

16 violation of 18 U.S.C. § 924(c)(1)(A)(ii). Taylor was

17 additionally charged with (4) fraudulent acquisition of

18 controlled substances by passing forged prescriptions, in

19 violation of 21 U.S.C. § 843(a)(3).

20 Taylor moved to suppress his two post-arrest statements

21 on the ground that his Miranda waivers and his post-arrest

22 statements were neither knowing nor voluntary. The

23 testimony summarized above was given at the suppression

10
1 hearing (starting April 23, 2010, continuing May 4, 2010,

2 and concluding May 6, 2010). The district court denied

3 suppression of Taylor’s post-arrest statements, finding that

4 the government sustained its burden of proving that Taylor’s

5 Miranda waivers were “informed and voluntary.” Supplemental

6 App. 385. The court found that the testimony of the law

7 enforcement agents was consistent, corroborated, and

8 truthful. Id. at 386-87.

9 The court rejected the argument that Taylor’s

10 incapacitation rendered his post-arrest statements

11 involuntary:

12 [T]he defense does not allege that the government
13 failed to read Mr. Taylor [his] rights before
14 questioning began or any other coercion. Even
15 were the Court to assume that Mr. Taylor ingested
16 a large quantity of Xanax shortly before his
17 arrest, the Court credits the testimony from the
18 government’s witnesses that Mr. Taylor was
19 sufficiently lucid during the questioning that his
20 waiver of Miranda rights was knowing and
21 voluntary.
22
23 The fact that there is evidence that Mr. Taylor
24 nodded off from time to time during the
25 questioning does not persuade the Court that
26 during those portions of the testimony when he was
27 awake and lucid he could not have voluntarily and
28 knowingly waived his Miranda rights.

29 Id. at 387-88. The district court went on to explain that

30 it did “not equate nodding off intermittently with total

31 psychotic episodes of hallucination and other extreme

11
1 circumstances that might throw greater doubt on the

2 defendant’s ability to voluntarily and knowingly waive his

3 rights.” Id. at 388.

4 Taylor’s statements, which implicated Rosario and

5 Vasquez, were redacted at trial to remove their names. The

6 jury was instructed that Taylor’s statements should be

7 considered only as to Taylor.

8 In December 2010, the jury convicted on all counts.

9 Taylor was sentenced principally to 200 months’

10 imprisonment, Rosario was sentenced principally to 180

11 months, and Vasquez was sentenced principally to 170 months.

12 They all filed timely notices of appeal.

13

14 II

15 The main issue on appeal is whether Taylor’s Miranda

16 waivers on April 9 and April 10, and his post-arrest

17 statements on each of those dates, were knowing and

18 voluntary. “We review a district court’s determination

19 regarding the constitutionality of a Miranda waiver de novo

20 and a district court’s underlying factual findings for clear

21 error.” United States v. Carter, 489 F.3d 528, 534 (2d Cir.

22 2007).

12
1 A statement made by the accused “during a custodial

2 interrogation is inadmissible at trial unless the

3 prosecution can establish that the accused in fact knowingly

4 and voluntarily waived [Miranda] rights when making the

5 statement.” Berghuis v. Thompkins, 560 U.S. 370, 382 (2010)

6 (internal quotation marks omitted). “The existence of a

7 knowing and voluntary waiver does not, however, guarantee

8 that all subsequent statements were voluntarily made.” In

9 re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d

10 177, 211-12 (2d Cir. 2008); see also Dickerson v. United

11 States, 530 U.S. 428, 444 (2000) (“The requirement that

12 Miranda warnings be given does not, of course, dispense with

13 the voluntariness inquiry.”).

14 We look at the totality of circumstances surrounding a

15 Miranda waiver and any subsequent statements to determine

16 knowledge and voluntariness. See Oregon v. Elstad, 470 U.S.

17 298, 309 (1985). In that context, “knowing” means with full

18 awareness of the nature of the right being abandoned and the

19 consequences of abandoning it, and “voluntary” means by

20 deliberate choice free from intimidation, coercion, or

21 deception. United States v. Plugh, 648 F.3d 118, 127 (2d

22 Cir. 2011), cert. denied, 132 S. Ct. 1610 (2012). The

13
1 government bears the burden of proof. Colorado v. Connelly,

2 479 U.S. 157, 168-69 (1986).

3

4 The analysis applicable to April 9 differs somewhat

5 from the analysis applicable to April 10.

6 April 9. In general, a suspect who reads,

7 acknowledges, and signs an “advice of rights” form before

8 making a statement has knowingly and voluntarily waived

9 Miranda rights. See Plugh, 648 F.3d at 127-28. Before

10 making his April 9 statement, Taylor was given Miranda

11 rights using an “advice of rights” form. He was read every

12 right, voiced his understanding, and signed the form. At

13 the time, according to Detective Burch, Taylor had a “fluid”

14 demeanor, “knew what was going on,” and “understood what was

15 happening.” Supplemental App. 15. This evidence, credited

16 by the district court, supports the conclusion that Taylor

17 knowingly and voluntarily waived his Miranda rights before

18 speaking with law enforcement on April 9.

19 But even accepting that Taylor’s April 9 Miranda waiver

20 was knowing and voluntary, we must nonetheless determine

21 whether the inculpatory statements themselves were

22 voluntary. Dickerson, 530 U.S. at 444. “A confession is

14
1 not voluntary when obtained under circumstances that

2 overbear the defendant’s will at the time it is given.”

3 United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991).

4 The voluntariness inquiry should examine “the totality of

5 all the surrounding circumstances, including the accused’s

6 characteristics, the conditions of interrogation, and the

7 conduct of law enforcement officials.” Id. An individual’s

8 mental state should be considered in the voluntariness

9 inquiry to the extent it allowed law enforcement to coerce

10 the individual. Connelly, 479 U.S. at 164-65; see also

11 United States v. Salameh, 152 F.3d 88, 117 (2d Cir. 1998)

12 (per curiam).

13 The record indicates that Taylor’s April 9 statement

14 was made when he was unable to summon the will to make a

15 knowing and voluntary decision; his will was overborne.

16 It is difficult to determine whether a confession is

17 voluntary; case law “yield[s] no talismanic definition” for

18 the term. Schneckloth v. Bustamonte, 412 U.S. 218, 224

19 (1973). It is clear, however, that when “a person is

20 unconscious or drugged or otherwise lacks capacity for

21 conscious choice,” a confession cannot be voluntary. Id.

22 (internal quotation marks omitted); see also United States

15
1 ex rel. Burns v. LaVallee, 436 F.2d 1352, 1355-56 (2d Cir.

2 1970) (holding a written confession to be involuntary when

3 given “after over eighteen hours of uninterrupted custodial

4 interrogation, after he had been without sleep, and almost

5 without food, for thirty hours”).

6 Taylor claims he was mentally incapacitated during the

7 April 9 interview because of the quantity of Xanax pills he

8 ingested immediately before his arrest. That claim finds

9 support in the record. Detective Burch testified that

10 Taylor’s body “was somewhat shutting down,” and that “at

11 that time that he was answering questions . . . his body was

12 giving up on him.” Supplemental App. 51. The district

13 court credited this testimony. Granted, Burch also

14 testified that, when Taylor was speaking, he was “coherent”

15 and understood what was going on when he was not nodding

16 off. Id. But it nonetheless appears that Taylor fell

17 asleep at least two or three times during the interview, and

18 the officers repeatedly had to awaken him, or (to use the

19 nicer term) “refocus” him--at one point coaxing him, “Mr.

20 Taylor, you have to answer our questions and focus with us.”

21 Id. at 47. Agent Tomas corroborated that Taylor was “a

22 little bit out of it” and dozing off. Id. at 158-61.

16
1 In Mincey v. Arizona, 437 U.S. 385 (1978), statements

2 by a defendant who was hospitalized were ruled involuntary.

3 The Court observed that the defendant was in intensive care

4 for a serious wound and was “evidently confused and unable

5 to think clearly about either the events of that afternoon

6 or the circumstances of his interrogation.” Id. at 398.

7 The statements were “the result of virtually continuous

8 questioning of a seriously and painfully wounded man on the

9 edge of consciousness.” Id. at 401; see also id. (“But

10 despite [the accused’s] entreaties to be let alone, [the

11 police officer] ceased the interrogation only during

12 intervals when [the accused] lost consciousness or received

13 medical treatment, and after each such interruption returned

14 relentlessly to his task.”).

15 On the other hand, in Salameh, we rejected a claim that

16 a statement was involuntary, even though the accused claimed

17 that prior to being taken into U.S. custody, he had been

18 incarcerated in Egypt and tortured for ten days. 152 F.3d

19 at 117. Despite the accused’s weakened mental state, his

20 statements were voluntary because he did “not contend that

21 federal agents either mentally or physically coerced his

22 remarks during that interrogation.” Id.; see also Plugh,

17
1 648 F.3d at 128 (statements voluntary because defendant “was

2 never threatened physically or psychologically abused in any

3 manner, or made any type of promises such that his will was

4 overborne”) (internal quotation marks omitted).

5 One difference between Mincey and Salameh is the

6 presence in Mincey of police overreaching, see Connelly, 479

7 U.S. at 157 (stressing the "crucial element of police

8 overreaching" in assessing voluntariness), and that is no

9 doubt a difficult issue here. Continued questioning of a

10 sleep-deprived suspect can be coercive, depending on the

11 circumstances, see, e.g., Mincey, 437 U.S. at 401; LaVallee,

12 436 F.2d at 1355-56; but the decisive issue is whether the

13 will was “overborne” by the police, so that the defendant is

14 not using such faculties as he has. The conditions in which

15 Taylor was questioned do not appear to have been abusive;1

16 but there is little difference in effect between sleep

17 deprivation as a technique and the relentless questioning of

18 a person who is obviously unable to focus or stay awake for

19 some other reason.

20

1
The law enforcement agents, though persistent in
interrogating Taylor and summoning him to alertness as he
continued to fall asleep, do not appear to have acted
maliciously or abusively during the interrogation.
18
1 The district court credited testimony that Taylor was

2 coherent at times. One such interval is when Taylor signed

3 the “advice of rights” form on April 9, a finding that we do

4 not disturb. But as that interview progressed, it became

5 clear to the officers (as their testimony confirms) that

6 Taylor was in and out of consciousness while giving his

7 statement, and in a trance or a stupor most of the time when

8 not actually asleep. Thus, the officers’ persistent

9 questioning took undue advantage of Taylor’s diminished

10 mental state, and ultimately overbore his will.

11 Accordingly, we conclude that Taylor’s statement on April 9

12 was not voluntary and should have been suppressed.

13

14 April 10. On the morning of April 10, Taylor himself

15 initiated contact with law enforcement by notifying Agent

16 Tomas that “he wanted to clear up some issues about the

17 charges that he was presented with.” Supplemental App. 139.

18 He was then orally re-advised of his rights, orally waived

19 them, and gave an additional statement, altering some

20 aspects of his April 9 account. Although Taylor continued

21 to slip in and out of consciousness that day, Agent Tomas

22 testified that, when Taylor spoke to the agents mid-morning,

19
1 he was “much more alert” than he had been the day before.2

2 Id. at 139-42. But because Taylor’s first confession on

3 April 9 was the product of coercion, we must determine

4 whether his second waiver and confession, less than twenty-

5 four hours later, were rendered involuntary based, at least

6 in part, on the "taint clinging to the first confession."

7 Anderson, 929 F.2d at 102.

8 “[T]he use of coercive and improper tactics in

9 obtaining an initial confession may warrant a presumption of

10 compulsion as to a second one, even if the latter was

11 obtained after properly administered Miranda warnings."

12 Tankleff v. Senkowski, 135 F.3d 235, 245 (2d Cir. 1998)

13 (internal quotation marks omitted). That is so because,

14 “after an accused has once let the cat out of the bag by

15 confessing, no matter what the inducement, he is never

16 thereafter free of the psychological and practical

17 disadvantages of having confessed.” United States v. Bayer,

18 331 U.S. 532, 540 (1947).

19 “In deciding whether a second confession has been

20 tainted by the prior coerced statement, ‘the time that

21 passes between confessions, the change in place of

2
As discussed further below, it is not at all clear
that Taylor was appreciably more alert.
20
1 interrogations, and the change in identity of interrogators

2 all bear on whether that coercion has carried over into the

3 second confession.’” Anderson, 929 F.2d at 102 (quoting

4 Elstad, 470 U.S. at 310). Less than a day passed between

5 Taylor’s first and second confessions, and in that interval,

6 Taylor was hospitalized or unconscious most of the time.

7 Although the venue of the interrogations differed, Agent

8 Tomas was present at both--and it was to Agent Tomas that

9 Taylor addressed his request to “clear up some issues.” The

10 taint of the prior involuntary confession carried over to

11 Taylor’s second waiver and statement, burdening both with a

12 “presumption of compulsion.” Tankleff, 135 F.3d at 245.

13 That presumption is reinforced by uncontradicted

14 testimony regarding Taylor’s lingering mental incapacity on

15 April 10. Taylor continued to doze off that morning and was

16 alert only “at times.” Supplemental App. 162. Just before

17 the April 10 interview, FBI Special Agent Steven Jensen saw

18 Taylor “slouched in his chair, and he appeared to be

19 sleeping.” Id. at 247. When asked for how long Taylor was

20 asleep, Agent Jensen explained (ambiguously) that it was “in

21 excess of minutes.” Id.

22

21
1 Although the record does not suggest that Taylor fell

2 asleep during the April 10 interview, there is evidence

3 that, throughout the day on April 10, Taylor remained in a

4 fog. Dr. Miller reported that Taylor was mentally impaired

5 on the morning of April 10 and could not adequately respond

6 to questions:

7 When he was seen, he presented with a thought
8 disorder. He was noted to be picking at his
9 nails. He was drooling. He was vague in his
10 responses to questioning. He presented with what
11 we call a flat affect . . . just kind of flat and
12 blank-face stare.
13
14 He could not elaborate on questions asked. His
15 thoughts lacked spontaneity. His speech was
16 vague. When we would ask him certain questions
17 about whether he was hearing voices, he couldn’t
18 really elaborate on his responses.
19
20 Id. at 110. Dr. Miller also reported the observation made

21 by psychologists in her division: “[I]f you asked him

22 questions, he really couldn’t elaborate on them because his

23 thought process was impaired.” Id. at 111.

24 Dennis Khilkevich, a pretrial services officer who

25 interviewed Taylor at around 12:30 PM on April 10, found

26 Taylor drowsy and in need of rousing. See id. at 319 (“He

27 was sitting in a chair and he appeared as if he was asleep

28 or taking a nap.”). When Khilkevich tired of waking him up,

29 he suspended the interview; and when he resumed, Taylor

22
1 continued to fall asleep between short intervals of

2 consciousness, so Khilkevich ended the questioning.

3 The district court did not discredit the testimony of

4 Dr. Miller or Khilkevich.

5 Evidence of Taylor’s continued incapacity on April 10,

6 coupled with the taint of his prior confession, renders his

7 second waiver and statement involuntary. Considering the

8 totality of circumstances, we conclude that Taylor’s

9 inculpatory statement on April 10 should have been

10 suppressed.3

11

12 III

13 Next we consider whether the error in admitting those

14 statements was harmless. Arizona v. Fulminante, 499 U.S.

15 279, 310-11 (1991) (Rehnquist, C.J., writing for a majority

16 as to harmless error analysis); see also Zappulla v. New

17 York, 391 F.3d 462, 466 (2d Cir. 2004). “When reviewing the

18 erroneous admission of an involuntary confession, the

19 appellate court, as it does with the admission of other

3
When it appears that a defendant is malingering, the
calculus should be vastly different. Here, all the
witnesses support the account that Taylor was actually
slipping in and out of consciousness during the April 9
interview, and immediately before and after the April 10
interview.
23
1 forms of improperly admitted evidence, simply reviews the

2 remainder of the evidence against the defendant to determine

3 whether the admission of the confession was harmless beyond

4 a reasonable doubt.” Fulminante, 499 U.S. at 310 (emphasis

5 added).

6 “Is it clear beyond a reasonable doubt that a rational

7 jury would have found the defendant guilty absent the

8 error?” Neder v. United States, 527 U.S. 1, 18 (1999).

9 “[T]he court conducting a harmless-error inquiry must

10 appreciate the indelible impact a full confession may have

11 on the trier of fact,” Fulminante, 499 U.S. at 313 (Kennedy,

12 J., concurring); “it may be devastating to a defendant,”

13 Id. at 312 (Rehnquist, C.J., writing for a majority as to

14 harmless error analysis). The following (nonexclusive)

15 factors bear on whether the erroneous admission of a

16 confession was harmless: “(1) the overall strength of the

17 prosecution’s case; (2) the prosecutor’s conduct with

18 respect to the improperly admitted evidence; (3) the

19 importance of the wrongly admitted testimony; and (4)

20 whether such evidence was cumulative of other properly

21 admitted evidence.” Zappulla, 391 F.3d at 468.

22 The admission of Taylor’s involuntary confessions was

23 not harmless error beyond a reasonable doubt. (1) Taylor’s

24
1 confessions were a critical part of the prosecution’s case.

2 The case against Taylor otherwise rested on the testimony of

3 Luana Miller and cell-site records. Miller’s testimony was

4 subject to attack, as Taylor claims, because of her criminal

5 past and because she had much to gain from cooperating with

6 the government. Further, while the cell-site records

7 corroborate Miller’s account of their movements, no other

8 witness or physical evidence links Taylor to the crime. (2)

9 The prosecution emphasized Taylor’s confessions throughout

10 trial, including at opening and closing, and had both

11 statements read to the jury in full. (3) & (4) Taylor’s

12 confessions were important to the case, corroborating

13 Miller’s critical testimony. Further, a confession is

14 recognized to have greater impact than the same testimony

15 given by another witness. See, e.g., Fulminante, 499 U.S.

16 at 312-13. Given the weight that a jury may accord a

17 confession, as well as the other relevant factors, the

18 admission of Taylor’s post-arrest statements was not

19 harmless.

20 In sum, Taylor confessed while in a stupor, his will

21 was overborne, his statements were not voluntarily made, and

22 they should have been suppressed. Considering the other

23 evidence against Taylor and the important role that his

25
1 confessions played at trial, this was not harmless error.

2 We therefore vacate Taylor’s conviction and remand for a new

3 trial.4

4

5 IV

6 Rosario and Vasquez argue that the admission of

7 Taylor’s post-arrest statements violated their rights under

8 the Confrontation Clause because they had no opportunity to

9 cross-examine Taylor and because his statements pointed to

10 them.

11 It matters that the district court gave limiting

12 instructions. The court instructed that “[s]ome evidence is

13 admitted for a limited purpose only,” and pointed

14 specifically to “certain statements that law enforcement

15 agents testified were made to them by Mr. Taylor and Mr.

16 Rosario and that were admitted only as to the particular

17 defendant who made the statement.” Vasquez App. 220. The

18 court later reinforced that instruction:

4
Aside from Counts One, Two, and Three of the
indictment, which stemmed from the pharmacy robbery (of
which all three defendants were convicted), Taylor was also
convicted of making a misrepresentation to obtain OxyContin
(Count Four). The government relied heavily on Taylor’s
confession in proving this offense. Accordingly, we vacate
all of Taylor’s counts of conviction, under the same
harmless error analysis.
26
 1 As I instructed you previously, evidence of
2 statements that law enforcement agents testified
3 were made by a particular defendant was admitted
4 with respect to that particular defendant alone,
5 and if you find that the statements were made, may
6 not be considered or discussed by you in any way
7 with respect to any other defendant when you begin
8 your deliberations.
9
10 Id. at 227; see also id. at 177 (“The evidence of alleged

11 statements made by Curtis Taylor to law enforcement is

12 admitted with respect to Curtis Taylor alone and may not be

13 considered or discussed by you in any way with respect to

14 either of the other defendants . . . .”).

15 We normally assume that jurors follow limiting

16 instructions. See, e.g., United States v. Jass, 569 F.3d

17 47, 55 (2d Cir. 2009). But a confession by one co-defendant

18 in a joint trial poses substantial risk for the other co-

19 defendants notwithstanding such an instruction. See Bruton

20 v. United States, 391 U.S. 123, 135-36 (1968). In Bruton,

21 the Supreme Court recognized the risks posed by “powerfully

22 incriminating extrajudicial statements of a co-defendant,

23 who stands accused side-by-side with the defendant,” which

24 are then “deliberately spread before the jury in a joint

25 trial.” Id. Such limiting instructions call for “a mental

26 gymnastic which is beyond, not only [the jury’s] powers, but

27 anybody’s else.” Nash v. United States, 54 F.2d 1006, 1007

27
1 (2d Cir. 1932) (L. Hand, J.). The risk is heightened when

2 the circumstances deprive a defendant of the constitutional

3 right to confront the witnesses against him. See Gray v.

4 Maryland, 523 U.S. 185, 196 (1998).

5 “The crux of [the Confrontation Clause] is that the

6 government cannot introduce at trial statements containing

7 accusations against the defendant unless the accuser takes

8 the stand against the defendant and is available for cross

9 examination.” Jass, 569 F.3d at 55 (internal quotation

10 marks omitted). When the confession of one defendant

11 implicates his co-defendants, Bruton demands “a redaction

12 and substitution adequate to remove the ‘overwhelming

13 probability’ that a jury will not follow a limiting

14 instruction that precludes its consideration of a redacted

15 confession against a defendant other than the declarant.”

16 Id. at 60. Accordingly, “redacted confessions ‘that simply

17 replace a name with . . . obvious indications of alteration’

18 fall within Bruton because they ‘refer[ ] directly to the

19 “existence” of the nonconfessing defendant.’” Id. at 58

20 (quoting Gray, 523 U.S. at 192) (emphasis in original).

21 Redactions and substitutions can avoid Bruton error if

22 the altered statement uses words “that might actually have

23 been said by a person admitting his own culpability in the

28
1 charged conspiracy while shielding the specific identity of

2 his confederate.” Id. at 62. Along these lines, we have

3 previously allowed proper names to be replaced with the

4 following terms (among others): “another person,” id. at 59;

5 “others,” “other people,” and “another person,” United

6 States v. Tutino, 883 F.2d 1125, 1135 (2d Cir. 1989); the

7 pronoun “he,” United States v. Kyles, 40 F.3d 519, 526 (2d

8 Cir. 1994); “this guy,” “another guy,” and “similar

9 language,” United States v. Williams, 936 F.2d 698, 699, 701

10 (2d Cir. 1991); and “friend,” United States v. Benitez, 920

11 F.2d 1080, 1087 (2d Cir. 1990). We explicitly left open,

12 however, “the possibility of a neutral-word substitution

13 being so conspicuously awkward” that the alteration becomes

14 obvious. Jass, 569 F.3d at 61; see also Tutino, 883 F.2d at

15 1135 (upholding redacted statement where “the jury never

16 knew that [the declarant’s] original statement named

17 names”).

18 The redactions here suggest that Taylor’s original

19 statements contained actual names. Throughout, Luana

20 Miller’s name is used--without redaction--conjoined with

21 reference to persons who are unnamed: “LUANA MILLER and two

22 other individuals”; “The person waiting with LUANA MILLER

23 and TAYLOR”; and “TAYLOR, LUANA MILLER, and the driver.” If

29
1 Taylor had been trying to avoid naming his confederates, he

2 would not have identified one of them--Miller--in the very

3 phrase in which the names of the other confederates are

4 omitted.5 The jurors would notice that Miller is the one

5 person involved who was cooperating, and would infer that

6 the obvious purpose of the meticulously crafted partial

7 redaction was to corroborate Miller’s testimony against the

8 rest of the group, not to shield confederates.

9 Moreover, the wording of the statement suffers from

10 stilted circumlocutions: “The robbery was the idea of the

11 person who waited with Luana Miller and Taylor at the gas

12 station”; “Luana Miller and the other person who had waited

13 with Taylor at the gas station came up with the plan”;

14 “[A]ll four of them went to the house of the mother of one

15 of the other individuals.” And reference to “two other

16 individuals” is suspiciously closer to the speech of a

17 prosecutor than that of a perpetrator.

18 In Jass, we suggested that the following redaction

19 would be inadequate: “When I realized the guard had pulled

20 the alarm, I turned and said to another person, ‘Look, other

5
There was no evidence Taylor knew of Miller’s
cooperation at the time of his arrest; Miller did not sign a
formal cooperation agreement with the government until
months later.
30
1 person, we have to get out of here.’” 569 F.3d at 62.

2 Taylor’s redacted statement betrays a similar flaw in

3 referencing Vasquez, who drove the car: “the driver was

4 running late. When the driver got there, he drove the three

5 of them”; “The driver then drove the car back to the Bronx.”

6 These sentences reflect a mechanical substitution of the

7 driver’s role for the driver’s name.

8 Once it becomes obvious that names have been pruned

9 from the text, the choice of implied identity is narrow.

10 The unnamed persons correspond by number (two) and by role

11 to the pair of co-defendants. This “obviously redacted

12 confession . . . points directly to the defendant[s], and it

13 accuses the defendant[s] in a manner similar to . . . a

14 testifying codefendant’s accusatory finger.” Gray, 523 U.S.

15 at 194. The jury could immediately infer, on the evidence

16 of the redacted confession alone, that Taylor had likely

17 named the co-defendants. See Jass, 569 F.3d at 57 (“The

18 inferences . . . involve statements that, despite redaction,

19 obviously refer directly to someone, often obviously the

20 defendant, and which involve inferences that a jury

21 ordinarily could make immediately, even were the confession

22 the very first item introduced at trial.” (quoting Gray, 523

23 U.S. at 196)).

31
1 Jass does not require the most natural and colloquial

2 rendering of how a drug thief would have shielded the

3 identity of his confederates. But the awkward

4 circumlocution used to reference other participants, coupled

5 with the overt naming of Luana Miller (only), is so

6 unnatural, suggestive, and conspicuous as to offend Bruton,

7 Gray, and Jass.6

8

9 V

10 Rosario and Vasquez also argue that the admission of

11 Taylor’s post-arrest statements caused prejudicial

12 spillover.7 Because we vacate the convictions of Rosario

6
After briefing and oral argument in this appeal,
Taylor and Vasquez sought to raise an issue recently
addressed by the Supreme Court in Alleyne v. United States,
133 S. Ct. 2151 (June 17, 2013): whether their
“brandish[ing]” of a firearm in connection with a crime of
violence--an element of the offense increasing the mandatory
minimum sentence--was found by the jury beyond a reasonable
doubt. Although we need not reach this issue (because we
vacate their convictions on other grounds), the challenge
has no merit; the jury did make the necessary finding. See,
e.g., Verdict Form 5; Tr. 1194.
7
Vasquez raises two other arguments on appeal that may
have some bearing on the proceedings upon remand. First,
Vasquez argues that the district court erred by limiting his
cross-examination of Miller on the circumstances surrounding
Rosario’s possession of a gun. Second, Vasquez argues that
the district court delivered an unbalanced jury instruction
on the significance of the ledger found in his pocket after
his arrest. We see no abuse of discretion on either score.
32
1 and Vasquez on other grounds, we need not reach this claim.8

2

3 CONCLUSION

4 For the foregoing reasons, we vacate the convictions

5 and remand for a new trial.

8
It may matter on remand that Rosario’s challenge to
the admissibility of Miller’s testimony under Rule 404(b) is
without merit. Miller’s testimony about plans to commit a
pharmacy robbery related to the crime charged in this case,
and the district court did not abuse its discretion by
admitting that evidence as relevant background. See United
States v. Greer, 631 F.3d 608, 614 (2d Cir. 2011).
33