11-2201(L)
United States v. Taylor
11-2201(L), 11-2426(CON), 11-2639(CON)
United States v. Taylor
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 23rd day of May, two thousand fourteen.
PRESENT: ROBERT A. KATZMANN,
Chief Judge,
DENNIS JACOBS,
JOSÉ A. CABRANES,
ROSEMARY S. POOLER,
REENA RAGGI,
RICHARD C. WESLEY,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
GERARD E. LYNCH,
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
SUSAN L. CARNEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
- - - - - - - - - - - - - - - - - - - - - -x
UNITED STATES OF AMERICA,
Appellee,
- v.- 11-2201, 11-2426,
11-2639
CURTIS TAYLOR, ANTONIO ROSARIO,
AKA CHICKEE, SAMUEL VASQUEZ, AKA ROCK,
Defendants-Appellants.
- - - - - - - - - - - - - - - - - - - - -x
For Appellee: Christopher D. Frey, Brent S. Wible,
and Michael A. Levy, Assistant
United States Attorneys, for Preet
Bharara, United States Attorney for
the Southern District of New York,
New York, NY.
For Defendant- Kelley J. Sharkey, Brooklyn, NY.
Appellant Taylor:
For Defendant- Jillian S. Harrington, Monroe
Appellant Rosario: Township, NJ.
For Defendant- Colleen P. Cassidy, Assistant
Appellant Vasquez: Federal Public Defender, Federal
Defenders of New York, Inc., New
York, NY.
ORDER
Following disposition of this appeal on March 4, 2014,
an active judge of the Court requested a poll on whether to
rehear the case en banc. A poll having been conducted and
there being no majority favoring en banc review, rehearing
en banc is hereby DENIED.
Rosemary S. Pooler, Circuit Judge, concurs by opinion
in the denial of rehearing en banc.
José A. Cabranes, Circuit Judge, dissents by opinion
from the denial of rehearing en banc.
Reena Raggi, Circuit Judge, joined by José A. Cabranes,
Richard C. Wesley, Peter W. Hall, Debra Ann Livingston, and
Christopher F. Droney, Circuit Judges, dissents by opinion
from the denial of rehearing en banc.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
2
1 POOLER, Circuit Judge, concurring in the denial of rehearing en banc:
2 I write as one of the majority of active judges who voted to deny rehearing
3 en banc in this case. I write only for myself. I carefully studied the memoranda
4 circulated by my colleagues who voted in favor of rehearing en banc, which
5 presented arguments similar to those set forth in Judge Raggi’s dissent from the
6 denial of en banc review. I did not vote against rehearing en banc because of
7 some imagined distaste for en banc proceedings or because I thought that the
8 issues presented here are so important we should expedite the Supreme Court’s
9 consideration of this case. Instead, I voted to deny rehearing en banc because I
10 believe that the panel’s decision in this case is substantively correct.
José A. Cabranes, Circuit Judge, dissenting from the order denying rehearing en banc:
I respectfully join, without qualification, in Judge Raggi’s forceful opinion. The dissenters
having failed to persuade a majority of the active judges to rehear this appeal, our concerns
necessarily now rest in the hands of our highest court. I write separately, and in my name alone, for
the sole purpose of recalling some salient aspects of en banc practice in the Second Circuit.1
As a result of our decision not to rehear this case before the full court of active judges, by a
vote of seven to six, one can know for certain only one thing: Judge Raggi’s opinion dissenting from
the denial of en banc review is, by definition, an expression of the views of the six subscribing
judges that the panel’s resolution of this case presents legal issues of exceptional importance, and
defies not only our own case law, but controlling Supreme Court precedent. In contrast, the order
itself denying rehearing without elaboration may, or may not, reflect the substantive views of
particular judges in the seven-judge majority voting against rehearing.2 This is so because, even
when the criteria enumerated in Rule 35 are satisfied—when “(1) en banc consideration is necessary
to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question
of exceptional importance”3—the active circuit judges nonetheless exercise considerable discretion
to vote against en banc rehearing.4
In light of how judges of the Second Circuit have historically exercised such discretion, the
decision not to convene the en banc court does not necessarily mean that a case either lacks
significance or was correctly decided. Indeed, the contrary may be true. An oft-cited justification
for voting against rehearing, perhaps counterintuitively, is that the case is “too important to en
banc.”5 This view was apparently first stated in published case law in 1973 by Judge Irving R.
1 It seems worthwhile to explain again the variation in the number of en banc dispositions between the Second
Circuit and our sister courts of appeal, perhaps tracing back to Judge Learned Hand’s promise that he would never vote
to convene an en banc court. Gerald Gunther, Learned Hand: The Man and the Judge 515-16 (1994); see also Wilfred
Feinberg, The Office of Chief Judge of a Federal Court of Appeals, 53 Fordham L. Rev. 369, 376 (1984) (“The tradition in the
Second Circuit, a tradition that goes back to Learned Hand, is that in bancs are not encouraged.”). Our Court hears the
fewest cases en banc of any circuit by a substantial margin, both in absolute terms and when considering the relative size
of our docket. See Federal Bar Council, Second Circuit Courts Committee, En banc Practices in the Second Circuit: Time for a
Change? 6 (July 2011). As the Federal Bar Council has observed, “[t]he vast difference . . . indicates that something
different is happening when the judges of the Second Circuit consider whether to grant en banc review.” Id. at 22.
2 Indeed, nothing about the merits of a case is revealed in the standard order denying rehearing, which, as here,
states: “Following disposition of this appeal on [a particular date], an active judge of the Court requested a poll on
whether to rehear the case en banc. A poll having been conducted and there being no majority favoring en banc review,
rehearing en banc is hereby DENIED.” The order itself, moreover, does not reveal the precise tally of the en banc poll.
Thus, in cases where no dissenting opinions are filed, six active judges may still have voted in favor of en banc rehearing.
3 Fed. R. App. P. 35(a).
4 See id., Advisory Committee Notes (1998 Amendments).
5 James L. Oakes, Personal Reflections on Learned Hand and the Second Circuit, 47 Stan. L. Rev. 387, 392 (1995)
(emphasis supplied).
1
Kaufman, who voted against en banc consideration of a panel decision in order to “wisely speed this
case on its way to the Supreme Court as an exercise of sound, prudent and resourceful judicial
administration.”6 This view has perdured,7 leaving open the possibility that some judges in the
majority in any particular case may have voted against en banc rehearing precisely because of the
importance of the legal questions at issue.
Other reasons for voting against rehearing that may not be related to the case’s merits can be
grouped under what Judge Jon O. Newman called the “virtues of restraint.”8 Such “virtues” include
judicial economy,9 collegiality,10 and what Chief Judge Robert A. Katzmann more recently described
as “our Circuit’s longstanding tradition of general deference to panel adjudication—a tradition which
holds whether or not the judges of the Court agree with the panel’s disposition of the matter before
it.”11
Accordingly, a reader should not attempt to ascertain the substantive views of particular
judges in the majority (or even, in some circumstances, the unsuccessful minority) from a decision
not to rehear a case en banc. Nor should a reader accord any extra weight to a panel opinion in light
of such a decision, inasmuch as the order denying rehearing may only reflect, for some judges, a
6 Eisen v. Carlisle & Jacquelin, 479 F.2d 1005, 1021 (2d Cir. 1973) (Kaufman, J., concurring in the denial of
rehearing en banc).
Judge Kaufman argued, in a related vein, that en banc proceedings threatened the “institutional integrity of the
appellate court and the three-judge panel” because they send the message that “decisions reached by three-judge panels
are not final, but represent merely one step on an elongated appellate ladder.” Irving R. Kaufman, Do the Costs of the En
Banc Proceeding Outweigh Its Advantages?, 69 Judicature 7, 8 (1985); see also Green v. Santa Fe Indus., Inc., 533 F.2d 1309, 1310
(2d Cir. 1976) (per curiam) (denying en banc review “not because we believe these cases are insignificant, but because
they are of such extraordinary importance that we are confident the Supreme Court will accept these matters under its
certiorari jurisdiction,” and stating that “[a] case in which Supreme Court resolution is inevitable should not be permitted
to tarry in this Court for further intermediate action”).
7 As recently as 2001, then-Chief Judge John M. Walker urged an approach to en banc review “that holds the
process in reserve for the exceptional case that is an unlikely candidate for Supreme Court resolution.” John M. Walker,
Jr., Foreword, 21 Quinnipiac L. Rev. 1, 14 (2001).
8 Jon O. Newman, In Banc Practice in the Second Circuit: The Virtues of Restraint, 50 Brook. L. Rev. 365 (1984).
By avoiding the costs and delays associated with convening en banc, Judge Newman argued that we can better
9
“use judicial resources efficiently, concentrating our efforts on the prompt hearing and disposition of cases by panel
opinion.” Jon O. Newman, In Banc Practice in the Second Circuit, 1989-93, 60 Brook. L. Rev. 491, 503 (1994). Other judges
have likewise questioned the utility of en banc rehearings, insofar as they “produce[ ] either a majority opinion that was
crafted in a purposefully vague manner to forge a consensus within the court, or a litany of diverging opinions, injecting
a degree of uncertainty into the law.” Kaufman, supra note 6, at 8.
10 Judge Newman observed twenty years ago that our limited approach to en banc rehearings has “contributed
significantly to the high level of collegiality that this court enjoys.” Newman, supra note 9, at 503. At about the same
time, Judge Oakes likewise reflected that “our en banc policy has helped us to maintain collegiality by avoiding the
divisions that have caused friction on other courts of appeal.” Oakes, supra note 5, at 393. More recently, Judge Gerard
E. Lynch stated that, although respect for a colleague’s strongly held view may bring about acquiescence, it may be seen
as an investment in collegiality. Gerard E. Lynch, Comment at the Columbia Law School Courts and Legal Process
Workshop (April 23, 2012).
11 Ricci v. DeStefano, 530 F.3d 88, 89 (2d Cir. 2008) (Katzmann, J., concurring in the denial of rehearing en banc).
2
general aversion to en banc rehearings or faith in the Supreme Court to remedy any major legal
errors.
In sum, all one can know for certain about a vote like this one is that seven active circuit
judges did not wish to rehear this case, while the six other active circuit judges strongly believed that
the panel opinion presented multiple legal errors of exceptional importance warranting correction.
3
REENA RAGGI, Circuit Judge, joined by JOSÉ A. CABRANES, RICHARD C. WESLEY,
PETER W. HALL, DEBRA ANN LIVINGSTON, and CHRISTOPHER F. DRONEY, Circuit
Judges, dissenting from the denial of rehearing en banc:
In vacating convictions in this Hobbs Act robbery case, a panel of the court
reaches the paradoxical conclusion that a defendant who acted knowingly and
voluntarily in waiving his Miranda rights could not have acted knowingly and
voluntarily in responding to ensuing police questions. Why? Not because of any
abusive police interrogation tactics—the panel concedes there were none—but,
rather, because defendant was so sleepy that he occasionally dozed off during
the interview.1 The panel then concludes that the “coercive” effect of the first
interrogation carried over to a second the following day, even though defendant
himself solicited the second interview, re‐waived his Miranda rights, and was
awake throughout.
These conclusions defy not only common sense but also controlling
precedent, notably, Dickerson v. United States, 530 U.S. 428 (2000), Colorado v.
Connelly, 479 U.S. 157 (1986), and Oregon v. Elstad, 470 U.S. 298 (1985). This
prompts six of the thirteen active judges in this circuit to seek review of this case
en banc. That review should also extend to the panel’s identification of error
1 The sleepiness was not attributable to the police but, rather, self‐induced,
purportedly by defendant’s ingestion of Xanax pills shortly before arrest.
1
under Bruton v. United States, 391 U.S. 123 (1968), in the admission of
purportedly inadequately redacted versions of the confessions at a joint trial. In
fact, the redactions replace co‐defendants’ names with neutral substitutes
solicited by defendants and previously approved by this and other federal
courts. Further, co‐defendants can be linked to the redacted statements only by
looking to other evidence, circumstances that cannot demonstrate Bruton error.
See Richardson v. Marsh, 481 U.S. 200, 206–09 (1987).
Thus, to the extent the court today declines to grant en banc review, I
respectfully dissent from that decision.
A. A Preliminary Observation About “Facts”
Throughout this opinion, I assume readers’ familiarity with the panel
opinions, see United States v. Taylor (“Taylor I”), 736 F.3d 661 (2d Cir. 2013),
superseded by United States v. Taylor (“Taylor II”), 745 F.3d 15 (2d Cir. 2014),
and I generally detail relevant facts only as necessary to explain why en banc
review is warranted. At the outset, however, it is important to note that the
panel’s troubling legal analysis rests on a suspect factual characterization of
defendant Curtis Taylor’s condition at the time of the challenged confessions.
2
Notably, the panel asserts, based on its own reading of the record, that
Taylor was “in and out of consciousness,” “in a trance or a stupor,” “largely
stupefied,” and “unable to focus” even when awake during his first
interrogation. Taylor II, 745 F.3d at 20, 25. Such characterizations are findings of
fact and, as such, outside the purview of an appellate court. They are, moreover,
at odds with factual findings of the district court that were not clearly erroneous.
See Ornelas v. United States, 517 U.S. 690, 699 (1996).
After an evidentiary hearing, the district court expressly found that,
“during the questioning,” Taylor was “sufficiently lucid,” “awake,” and
“competent” to exercise his constitutional rights. Suppression Hr’g Tr. (“Tr.”)
387:23–388:14, Supplemental App’x (“S.A.”) 387–88. In making these findings,
the district court credited interviewing officers who testified that, during the first
interrogation, Taylor was “coherent,” “fluid,” “knew what was going on,” and
never asked for questioning to cease. Id. 18:25–20:3, S.A. 18–20. While
acknowledging that Taylor may have “nodd[ed] off” two or three times during
the initial two‐to‐three hour interview, an FBI agent explained that, upon verbal
prompting, Taylor was able to focus on the questions posed: he “would respond
that he knew what he was being asked and he would repeat the questions back
3
to us to show that he was understanding what was being asked of him and knew
what was going on.” Id. 45:7–21, S.A. 45. As to the next day’s interview—which
Taylor himself requested—the agent testified that Taylor remained awake
throughout, “appeared fine,” and participated in a “lucid give and take”;
indeed, “[h]e was probing with information that he wanted to clarify, and that
led to my [i.e., the agent’s] questions to him. I didn’t note any confusion . . .
aside from what he wanted to clarify.” Id. 216:17–21, S.A. 216.
To support its own contrary factual assessment, the panel highlights other
hearing evidence suggesting that at different times on the dates in question,
Taylor fell asleep easily or experienced difficulties with mental focus and verbal
expression.2 But the task of weighing any competing evidence was committed to
the district court, not the panel. Cf. United States v. Mendenhall, 446 U.S. 544,
2 A pre‐trial services officer, who interviewed Taylor shortly after his second
confession, reported him frequently falling asleep and needing to be roused.
Nevertheless, the officer acknowledged that Taylor was able to provide the
information necessary for the officer to complete his report to the court. See Tr.
319:19–320:11, 321:24–323:6, 325:16–22, S.A. 319–20, 321–23, 325. Meanwhile, a
prison psychologist testified that prison records indicated that in admission
interviews between his two confessions, Taylor was “vague” in responding to
questions. Taylor II, 745 F.3d at 26 (quoting Tr. 110:14–24, S.A. 110). As that
same witness testified, however, what Taylor was “vague” about was his mental
health—a subject he may well have been reluctant to discuss with a prison
psychologist. He was willing and able to provide coherent responses to
questions seeking information about where he grew up, his family, education,
and drug use. See Tr. 122:13–123:12, S.A. 122–23.
4
557 (1980) (“[B]ecause the trial court’s finding [that defendant had acted
voluntarily in accompanying police to station] was sustained by the record, the
Court of Appeals was mistaken in substituting for that finding its view of the
evidence.”); United States v. Isiofia, 370 F.3d 226, 232 (2d Cir. 2004) (upholding
district court’s finding that consent to search was not voluntary “even though . . .
had we been sitting as the trier of fact, we would have weighed the evidence
differently” (internal quotation marks and alterations omitted)). Indeed, absent
identification of clear factual error—which the panel does not make here—it
cannot substitute its own factual assessment of Taylor’s condition at the time of
his confessions for that of the district court. See United States v. Khalil, 214 F.3d
111, 121–22 (2d Cir. 2000) (deferring to district court’s voluntariness finding even
though circumstances surrounding confession might have supported contrary
inference); see generally Anderson v. Bessemer City, 470 U.S. 564, 574 (1985)
(“Where there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.”).
To the extent the panel does so, such a departure from long‐standing
precedent might itself warrant correction en banc. Here, however, it is sufficient
5
to note this factfinding concern before discussing the relevant legal issues, which
warrant en banc review even under the panel’s own assessment of the facts.
B. Legal Errors Warranting En Banc Review
1. The Purported Involuntariness of Taylor’s First Confession
The panel holds that for law enforcement officers to have questioned
Taylor when he was intermittently falling asleep so overbore his will as to render
any admissions constitutionally involuntary. See Taylor II, 745 F.3d at 25. But as
the panel itself acknowledges, Taylor knowingly and voluntarily waived his
Miranda rights at the start of the interview and was not subjected to any abusive
interrogation tactics. Id. at 23, 25 & n.1. In these circumstances, the panel’s
identification of constitutional error cannot be reconciled with Dickerson v.
United States, 530 U.S. 428, and Colorado v. Connelly, 479 U.S. 157.
a. Dickerson’s Application to this Case
Whether police coerced a confession by improperly taking advantage of a
defendant’s impaired condition is a fact‐intensive inquiry on which we usually
defer to the district court.3 Here, the panel defers to the district court’s finding
3 Thus, while in Mincey v. Arizona, 437 U.S. 385 (1978), the Supreme Court
concluded that hospitalization for serious physical injury, limited consciousness,
incoherent responses, and unheeded requests to cease questioning compelled a
legal conclusion of involuntariness, see id. at 396–402, after Mincey, we have
6
that Taylor knowingly and voluntarily waived his Miranda rights before his first
confession, see Taylor II, 745 F.3d at 23, but then departs from the district court in
holding Taylor’s ensuing confession involuntary as a matter of law. In support,
the panel cites Dickerson v. United States, 530 U.S. 428, for the conclusion that a
Miranda waiver does not guarantee that subsequent statements were
constitutionally voluntary. See Taylor II, 745 F.3d at 23.
To be sure, Dickerson instructs that “[t]he requirement that Miranda
warnings be given does not, of course, dispense with the voluntariness inquiry.”
530 U.S. at 444. But this text is immediately followed by a caution that the panel
fails to acknowledge and does not heed: that “cases in which a defendant can
make a colorable argument that a self‐incriminating statement was ‘compelled’
repeatedly upheld voluntariness determinations by district judges who found
that, despite being hospitalized, restrained, seriously injured, and medicated,
persons were sufficiently lucid and coherent to make voluntary admissions to
interrogating officers, see United States v. Siddiqui, 699 F.3d 690, 707 (2d Cir.
2012) (upholding district court’s voluntariness finding where, although
defendant was hospitalized, restrained, in pain, and not administered Miranda
warnings, she was “lucid and able to engage the agents in coherent
conversation” and “agents’ conduct was not overbearing or abusive”); United
States v. Khalil, 214 F.3d at 121 (upholding district court’s voluntariness finding
where, although defendant had been shot, was in pain, and in hospital awaiting
surgery, he was alert and responsive to agents’ questions when making
challenged statements); Campaneria v. Reid, 891 F.2d 1014, 1020 (2d Cir. 1989)
(upholding district court’s voluntariness finding where, although defendant was
in intensive care with knife wound, he was “alert and awake despite his pain,”
and police had honored earlier requests to defer interview).
7
despite the fact that the law enforcement authorities adhered to the dictates of
Miranda are rare.” Id. (internal quotation marks and alterations omitted); accord
In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 177, 212 (2d Cir.
2008). Implicit in Dickerson’s rarity admonition is the recognition that, among
the totality of circumstances that determine voluntariness, Miranda waivers bear
considerable weight. See United States v. Williams, 681 F.3d 35, 45 (2d Cir. 2012)
(stating that suspect’s knowing and voluntary waiver of rights is “‘highly
probative’ of voluntariness” (quoting Oregon v. Elstad, 470 U.S. at 318)); see also
McNeil v. Wisconsin, 501 U.S. 171, 181 (1991) (observing that “[a]dmissions of
guilt resulting from valid Miranda waivers are more than merely desirable; they
are essential to society’s compelling interest in finding, convicting, and
punishing those who violate the law” (internal quotation marks omitted)).
While the panel accepts Taylor’s valid Miranda waiver, it accords little, if
any, weight to the waiver in assessing the voluntariness of his ensuing
confession. Rather, the panel focuses almost exclusively on Taylor’s sleepiness
during his initial police interview and concludes therefrom that he “was unable
to summon the will to make a knowing and voluntary decision” about speaking
to the police. Taylor II, 745 F.3d at 24. But this effectively misses Dickerson’s
8
point. The purportedly sleepy Taylor had demonstrated himself able to make
just such a “knowing and voluntary decision” moments earlier when, at the start
of the interview, he validly waived his Miranda rights.
Indeed, this record provides no basis for the panel’s decision to accept the
district court’s finding that Taylor was sufficiently competent to waive his
Miranda rights but to reject the district court’s same finding of competency with
respect to his ensuing confession. Certainly, the district court’s competency
finding cannot fairly be construed to apply only to the moment that Taylor
executed his written Miranda waiver. The record indicates that the district court
viewed the question in dispute to be whether Taylor’s condition throughout the
police interrogation cast doubt on the continued validity of his waiver of rights.
Thus, it found that Taylor was “sufficiently lucid during the questioning that his
waiver of Miranda rights was knowing and voluntary.” Tr. 387:23–25, S.A. 387
(emphasis added). Moreover, unlike the defendant in Mincey v. Arizona, 437
U.S. 385, 399–400 (1978), Taylor never indicated that he wished questioning to
stop. To the contrary, on the few occasions when he was prompted to focus on a
question, Taylor stated that he understood what was being asked, repeated the
question to demonstrate his comprehension, and then provided a response.
9
Further, the detailed and cogent nature of Taylor’s confessions not only supports
the district court’s finding that he was sufficiently awake and lucid to participate
voluntarily in the post‐arrest interview but also precludes the panel’s contrary
assessment of “stupor” or “trance.”
In the absence of any finding of clear error in the district court’s factual
determination (which, as noted, the panel does not make here), I respectfully
submit it is not possible, consistent with Dickerson, for a reviewing court to
conclude as a matter of law that this is one of the “rare” cases in which
admissions made after a valid Miranda waiver are, nevertheless, constitutionally
involuntary. Thus, en banc review is warranted to ensure our court’s adherence
to Dickerson.
b. Connelly’s Application to this Case
Insofar as Taylor’s sleepiness is the singular reason for the panel
denominating his initial interrogation as coercive, a further concern arises with
respect to this court’s faithful adherence to Colorado v. Connelly, 479 U.S. 157.
While a defendant’s mental state may be relevant to assessing the voluntariness
of a challenged confession, see Withrow v. Williams, 507 U.S. 680, 693 (1993),
Connelly instructs that it cannot, “by itself and apart from its relation to official
10
coercion . . . ever dispose of the inquiry into constitutional ‘voluntariness,’” 479
U.S. at 164; see id. at 166 (stating that defendant has no constitutional right “to
confess to his crime only when totally rational and properly motivated”).
Rather, Connelly holds that “coercive police activity is a necessary predicate” to
any finding of constitutional involuntariness. 479 U.S. at 167 (emphasis added);
see id. at 163–64 (emphasizing “crucial element of police overreaching” that
characterizes coercive action). Following Connelly, this court has recognized
that a defendant’s “mental state does not become part of the calculus for the
suppression of evidence unless there is an allegation that agents . . . engaged in
some type of coercion.” United States v. Salameh, 152 F.3d 88, 117 (2d Cir. 1998)
(emphasis added).
Here, the panel itself acknowledges that “[t]he conditions in which Taylor
was questioned do not appear to have been abusive.” Taylor II, 745 F.3d at 25;
see also id. at 25 n.1. Moreover, by accepting the district court’s finding of a
valid Miranda waiver, the panel effectively recognizes the removal of any
coercion inherent in the fact that Taylor’s questioning was custodial. See
Miranda v. Arizona, 384 U.S. 436, 467–68 (1966); see generally Oregon v. Elstad,
470 U.S. at 310–11 (holding that “careful and thorough administration of
11
Miranda warnings serves to cure the condition” that renders inadmissible
unwarned confession during custodial interrogation). In these circumstances,
there is no record basis consistent with Connelly for holding Taylor’s first
confession constitutionally involuntary based on the fact that he was questioned
while sleepy.
To be sure, if a defendant’s sleepiness were itself the product of deliberate
police action, that action would satisfy the overreaching prerequisite. See
Ashcraft v. Tennessee, 322 U.S. 143, 153–54 (1944) (holding 36‐hour questioning
coercive); accord United States ex rel. Burns v. LaVallee, 436 F.2d 1352, 1355–56
(2d Cir. 1970) (holding coercive 18‐hour questioning where defendant had been
without sleep for 30 hours). The same conclusion would obtain if police
persisted in questioning a sleep‐deprived person who repeatedly asked that
questioning cease. See Mincey v. Arizona, 437 U.S. at 399–402. But to the extent
the panel cites Mincey and LaVallee to support its conclusion that “[c]ontinued
questioning of a sleep‐deprived suspect can be coercive, depending on the
circumstances,” Taylor II, 745 F.3d at 25, the critical “circumstance,” present in
those cases and missing here, is official overreaching reflected in some action
apart from the mere questioning of a sleepy person.
12
Indeed, Connelly observed that “all” prior Supreme Court decisions
holding confessions involuntary “contained a substantial element of coercive
police conduct.” 479 U.S. at 163–64 (emphasis added). In discussing the type of
police overreaching with respect to impaired persons that rises to this level,
Connelly makes plain that it contemplates something more than questioning.
Referencing Blackburn v. Alabama, 361 U.S. 199 (1960), Connelly explains that
police there exploited a possibly insane defendant’s mental weakness with
“coercive tactics” that included “eight‐ to nine‐hour sustained interrogation in a
tiny room.” 479 U.S. at 164–65 (internal quotation marks omitted).4 Connelly
cites Townsend v. Sain, 372 U.S. 293 (1963), as “present[ing] a similar instance of
police wrongdoing,” in that a police physician had there given the defendant a
truth‐serum drug, a fact known to police interrogators when they elicited
defendant’s confession. 479 U.S. at 165. No analogous abuse having attended
officers’ questioning of Taylor, the panel’s identification of constitutionally
impermissible “coercion” cannot be reconciled with Connelly.
Compounding the panel’s Connelly error is its pronouncement that “there
is little difference in effect between sleep deprivation as a technique and the
4 As noted, Taylor was questioned for two to three hours, a circumstance that
cannot be analogized to that in Blackburn.
13
relentless questioning of a person who is obviously unable to focus or stay awake
for some other reason.” Taylor II, 745 F.3d at 25.5 By suggesting that the relevant
constitutional focus is on the effect rather than the means of interrogation, the
panel elides the “necessary predicate” demanded by Connelly: “coercive police
activity.” 479 U.S. at 167. Indeed, Connelly appears to have rejected an effects‐
focused test for constitutional involuntariness by distinguishing between
circumstances that might render an incapacitated defendant’s confession
“unreliable”—a matter that Connelly concludes should generally be governed by
a forum’s evidentiary rules—and circumstances demonstrating “coercive” police
activity so “fundamental[ly] unfair[]” as to violate due process. Id. (internal
quotation marks omitted).
In sum, where, as here, a defendant knowingly and voluntarily waived his
Miranda rights, and where police thereafter questioned him without employing
any abusive tactics, a reviewing court cannot conclude, consistent with Connelly
and contrary to the factual findings of the district court, that simply questioning
5 The proposed panel equation is unsupported by citation to any authority and
flawed, in any event, by overstatement of the record. As already noted, the
district court specifically credited testimony that Taylor was awake and lucid
during his initial interrogation except for two or three occasions when he nodded
off. Even then, verbal prompts were sufficient to allow him to regain focus. See
supra at [3–4].
14
Taylor while he was sleepy was fundamentally unfair, much less that it overbore
his will, so as to render responses constitutionally involuntary. To the extent the
panel so held, see Taylor II, 745 F.3d at 25, we should correct its Connelly error.
2. The Purported Continuing Involuntariness of Taylor’s Second
Confession
Even if one were to assume arguendo that Taylor’s first confession was
coerced, the panel’s conclusion that his second confession was thus also
involuntary warrants en banc review because it (a) fails to apply—and
improperly narrows—the totality‐of‐the‐circumstances review that determines
the ultimate question of continuing compulsion; and (b) fails to accord any
weight to other circumstances more relevant to the issue of continued coercion,
while mistakenly grounding a presumption of continued coercion in Taylor’s
first confession having “‘let the cat out of the bag.’” Taylor II, 745 F.3d at 25
(quoting United States v. Bayer, 331 U.S. 532, 540 (1947)).
a. Continuing Coercion Must Be Assessed by Reference to the
Totality of the Circumstances
The panel limits its continuing coercion inquiry to three factors identified
in Oregon v. Elstad: the place of interrogation, the time between confessions, and
the identity of the interrogators. See 470 U.S. at 310. Nevertheless, it concludes
15
that because less than 24 hours had passed between Taylor’s confessions and
because at least one common agent participated in both interrogations, the
second confession was burdened “with a ‘presumption of compulsion’”
requiring suppression. Taylor II, 745 F.3d at 26 (citation omitted).6
The panel errs in so limiting its continuing coercion inquiry. As Elstad
states, its identified factors “bear on” the constitutional question of whether
compulsion prompting a first confession “has carried over into the second”; the
factors do not cabin the taint inquiry or necessarily determine it. 470 U.S. at 310.
The question of continuing coercion, like the question of voluntariness generally,
depends on the totality of the circumstances. See Lyons v. Oklahoma, 322 U.S.
596, 602 (1944) (stating that whether “confessions subsequently given are
themselves voluntary depends on the inferences as to the continuing effect of the
coercive practices which may fairly be drawn from the surrounding
circumstances”); see also id. at 603 (“The admissibility of the later confession
depends upon the same test—is it voluntary.”); Tankleff v. Senkowski, 135 F.3d
235, 244–45 (2d Cir. 1998) (holding that courts must look to “totality of the
6 Insofar as Taylor’s interrogations took place at different sites—the first at FBI
headquarters, the second at a courthouse—the panel appears to recognize that
Elstad’s venue factor affords no basis for identifying a continuing coercive effect.
See Taylor II, 745 F.3d at 26.
16
circumstances” in deciding whether second confession following coerced
statement must also be suppressed).
b. Relevant, Yet Disregarded, Considerations
By focusing exclusively on the Elstad factors, the panel in fact overlooks
the two circumstances bearing most directly on, and ultimately belying,
continued coercion in this case: (1) the limited continuing effect of sleepiness as a
“coercive” factor, and (2) Taylor’s own request for a second police interview.
(1) The Limited Continuing Effect of Sleepiness
In Tankleff v. Senkowski, this court recognized that the particular coercion
informing a first confession is properly considered to determine whether it
irredeemably taints a second confession. See 135 F.3d at 244–45. This is because
coercion is not all of a kind. Where it is achieved through physical force, the
presumption of continuing coercion may be strongest, not only because of
lingering pain but also because of feared repetition. Cf. Lyons v. Oklahoma, 322
U.S. at 604 (concluding that taint from use of force had dissipated because
defendant had no reason to fear mistreatment in second interrogation).
Similarly, coercive deceit that is not corrected can have a continuing effect
because a defendant may be relying on the same misrepresentations in making
17
his second admission as he did in making his first. See United States v.
Anderson, 929 F.2d 96, 102 (2d Cir. 1991) (relying on fact that agent “made no
effort to dispel the original threat” but, rather, “reaffirmed [other agent’s] earlier
coercive statements” in holding second statement tainted).7
The “coercion” at issue here is of a very different sort. Given the panel’s
acknowledgment that no abusive questioning tactics were employed, its only
reason for viewing the initial interview informing Taylor’s first confession as
“coercive” is that the questioning was pursued while he was intermittently
dozing off. Even assuming that such a determination of coercion could be
squared with Connelly, the coercive reach of such conduct—by contrast to
physical abuse or deceit—is not long. Indeed, I do not see how it can be
presumed to continue beyond the sleepiness that supports it.
The panel acknowledges agent testimony that Taylor never fell asleep
during his second interrogation. See Taylor II, 745 F.3d at 26. But rather than
recognize this as a strong factor militating against continuing coercion from the
prior day’s sleepiness, the panel appears to question the testimony’s reliability by
7 At the same time, Anderson recognizes that police trickery does not per se
preclude a voluntary confession. See 929 F.2d at 99; see also Frazier v. Cupp, 394
U.S. 731, 739 (1969); Tankleff v. Senkowski, 135 F.3d at 244–45.
18
pointing to “uncontradicted testimony” of Taylor’s continued mental
impairment on the day of the second interrogation. Id.
As noted supra at [4 & n.2], that testimony pertains to observations of
Taylor at times other than during the interview when he made his second
confession. As to that 20‐minute period, the “uncontradicted testimony” of the
credited interviewing agent was that Taylor “appeared fine” throughout and
participated in a “lucid give and take” respecting information that he wanted to
clarify. Tr. 216:17–21, S.A. 216. Thus, whatever inferences a factfinder might
have drawn from Taylor’s behavior at times distinct from the second interview,
one thing is clear: a reviewing court cannot itself weigh that evidence and
conclude therefrom that Taylor was not awake and lucid when he made his
second confession—at least not without rejecting the district court’s express
finding that the agents who so testified to his condition were credible. See, e.g.,
United States v. Iodice, 525 F.3d 179, 185 (2d Cir. 2008) (emphasizing
“particularly strong deference” owed district court’s credibility determinations).
Accordingly, even if—despite Dickerson and Connelly—Taylor’s
sleepiness during the first confession had rendered it coercive to question him in
19
that condition, his ability to stay awake throughout the second interview is a
factor that strongly weighs against a conclusion of continuing coercion.
(2) Taylor’s Initiation of the Second Police Interview
The panel also accords little if any weight to the fact that Taylor himself
sought the second interview with law enforcement officials. Where a defendant
thus seeks out the authorities to initiate a second interview, and where a prior
incriminating statement is deemed coercive only because the defendant was
sleepy during that questioning—not because abusive interrogation tactics were
employed—I submit that a presumption of continuing coercion cannot attach to
that second interview solicited by the defendant, for which he again waived
Miranda rights, and throughout which he was awake.
No different conclusion is warranted by United States v. Bayer, which the
panel cites to explain that the reason a presumption of continuing compulsion
arises from a coerced confession is “because, ‘after an accused has once let the cat
out of the bag by confessing, no matter what the inducement, he is never
thereafter free of the psychological and practical disadvantages of having
confessed.’” Taylor II, 745 F.3d at 25 (quoting United States v. Bayer, 331 U.S. at
540). When this language of Justice Jackson’s in Bayer is read in context,
20
however, it makes a quite different point, namely, that although a first confession
lets the “cat out of the bag,” that does not preclude admission of a second
confession at trial, particularly where the second confession is made after the
original conditions of coercion have been removed:
Of course, after an accused has once let the cat out of the bag by
confessing, no matter what the inducement, he is never thereafter
free of the psychological and practical disadvantages of having
confessed. He can never get the cat back in the bag. The secret is
out for good. In such a sense, a later confession always may be
looked upon as fruit of the first. But this Court has never gone so far
as to hold that making a confession under circumstances which
preclude its use, perpetually disables the confessor from making a
usable one after those conditions have been removed.
United States v. Bayer, 331 U.S. at 540–41 (emphasis added); accord Tanner v.
Vincent, 541 F.2d 932, 937 (2d Cir. 1976) (instructing that although first
confession “let the cat out of the bag,” that is “only one factor” bearing on
voluntariness of later statement; existence of first confession “should not, in
itself, always be fatal” to use of second admission at trial (internal quotation
marks omitted)).
In sum, Taylor’s initiation of the second interview, together with the
agents’ re‐administration of Miranda rights, Taylor’s waiver of those rights, and
his ability to remain awake and lucid throughout the 20‐minute interview,
21
compel a conclusion that, whatever, if any, coercion attached to Taylor’s first
confession because of his sleepiness, it did not “carr[y] over” into the second
confession. Oregon v. Elstad, 470 U.S. at 310. To the extent the panel concluded
otherwise by looking only to intervening time and common participants, factors
less relevant to the continuing coercion inquiry in this case, en banc review is
necessary to reaffirm that totality‐of‐the‐circumstances is the appropriate
standard of review.
3. Vacatur of Co‐Defendants’ Convictions for Purportedly Inadequate
Redaction of Taylor’s Confessions
In its first opinion, the panel identified no concern with how Taylor’s
confessions had been redacted for use at a joint trial with co‐defendants Antonio
Rosario and Samuel Vasquez. Rather, it vacated these co‐defendants’ convictions
based on a risk that the jury had ignored instructions to consider the confessions
only as to Taylor. See Taylor I, 736 F.3d at 673–74. Upon reconsideration, the
panel abandons this position. Nevertheless, it persists in its vacatur decision,
concluding that the redacted statements contained “obvious” indications of
alteration from which the jury would “immediately infer” that Taylor had
inculpated Rosario and Vasquez. Taylor II, 745 F.3d at 27–30. This new holding
warrants en banc review because it marks an unprecedented extension of Bruton
22
v. United States, 391 U.S. 123, to neutral substitution language previously
approved by this court and solicited by co‐defendants, and depends on viewing
the redacted statements together with other trial evidence contrary to Richardson
v. Marsh, 481 U.S. 200.
In Bruton, the Supreme Court held that admission at a joint trial of a non‐
testifying defendant’s unredacted confession inculpating a co‐defendant violates
the latter’s Confrontation Clause rights because of the great risk that a jury
cannot follow instructions to consider such evidence against only the confessing
defendant. See 391 U.S. at 135–36. This rule, however, is a “narrow exception”
to the “almost invariable” assumption that juries follow instructions and one that
the Supreme Court has carefully limited. Richardson v. Marsh, 481 U.S. at 206–
09 (identifying no Bruton error where redactions eliminated co‐defendant’s
existence because confession was not “incriminating on its face, [but] became so
only when linked with evidence introduced later at trial”). Indeed, the Supreme
Court has extended Bruton to preclude admission of a redacted confession only
where a co‐defendant’s name was replaced with “a blank space or the word
‘deleted,’” i.e., “obvious indications of alteration” that “so closely resemble
23
Bruton’s unredacted statements” as to “refer[] directly to the ‘existence’ of the
nonconfessing defendant.” Gray v. Maryland, 523 U.S. 185, 188, 192 (1998).
From these precedents, our court has determined that admission of a
redacted confession violates Bruton if the statement (a) contains “obvious
indications of alteration” that signal to the jury that the original statement
“contained actual names”; or, (b) even if viewed in isolation as the “very first
item introduced at trial,” “immediately” inculpates the co‐defendant in the
charged crime. United States v. Jass, 569 F.3d 47, 61–62 (2d Cir. 2009) (internal
quotation marks omitted). Here, the panel’s analysis of both factors raises
concerns.
a. Obvious Indications of Alteration
In concluding that Taylor’s redacted statements displayed “obvious
indications” of alteration, the panel holds—for the first time by our court—that
neutral redactions were insufficient to avoid Bruton error.8 In support, it points
8 We have repeatedly upheld the replacement of co‐defendants’ names with
“neutral pronouns or references” as satisfactory to avoid Bruton error. United
States v. Jass, 569 F.3d at 50; see United States v. Yousef, 327 F.3d 56, 149–50 (2d
Cir. 2003); United States v. Williams, 936 F.2d 698, 700–01 (2d Cir. 1991); United
States v. Tutino, 883 F.2d 1125, 1135 (2d Cir. 1989). Many of our sister circuits
have held similarly. See, e.g., United States v. Cone, 714 F.3d 197, 218 (4th Cir.
2013); United States v. Green, 648 F.3d 569, 575–76 (7th Cir. 2011); United States
v. Vasilakos, 508 F.3d 401, 408 (6th Cir. 2007); United States v. Taylor, 186 F.3d
24
to dictum in United States v. Jass, which in rejecting a Bruton challenge to a
redacted confession in that case, left open the possibility that neutral redactions
might be so ham‐handed as to result in constitutional injury, see 569 F.3d at
61–62 (using example of direct quote redacted to read, “Look, other person, we
have to get out of here’” (emphasis added)). See Taylor II, 745 F.3d at 29.
Here, the panel does not—and cannot—identify any substitutions in
Taylor’s confessions as awkward as that hypothesized in Jass.9 Nevertheless, the
panel concludes that the employed neutral substitutions—including the words
“persons” and “individuals”—produced “stilted circumlocutions” that, with the
identification of confederate Luana Miller by name, demonstrated such obvious
redaction as to violate Bruton. Taylor II, 745 F.3d at 29. The conclusion is flawed
in several respects.
First, the panel’s reliance on the inclusion of Miller’s name together with
neutral substitutions for co‐defendants’ own as a basis for identifying Bruton
error conflicts with United States v. Tutino, 883 F.2d 1125 (2d Cir. 1989). There,
we upheld the admission of a redacted confession that replaced two co‐
1332, 1336 (11th Cir. 1999).
9 The final redacted versions of Taylor’s two confessions as admitted at trial are
reproduced at the conclusion of this opinion as Appendices A and B.
25
conspirators’ names with “others,” “other people,” and “another person,” but
still identified confederate Vince Cafaro, observing that “the jury never knew
that Tutino’s original statement named names, and could easily have concluded
that Tutino did not want to reveal the identity of his coconspirators.” Id. at
1135.10
To be sure, in Tutino, the confessing defendant knew that Cafaro was
cooperating with law enforcement authorities and, thus, already known to them.
Id. at 1137. But there are any number of reasons why a defendant might name
one confederate (a grudge against the named party, blaming the named party for
the declarant’s own predicament, an expectation that the named party will avoid
apprehension or be treated leniently, etc.) and not another (loyalty, family
relations, fear, etc.). Here, Taylor might well have named Miller because he
knew she was unmasked while inside the robbed pharmacy and, thus, most
likely to be identified by the police, and yet tried to shield the identities of
masked gunman Rosario and getaway driver Vasquez.11 Indeed, Rosario’s
Although Tutino preceded the Supreme Court’s decision in Gray v. Maryland,
10
523 U.S. 185, we have since confirmed that “our Tutino line of precedents
remains useful” to Confrontation Clause analysis. United States v. Jass, 569 F.3d
at 61.
11 Miller was, in fact, caught on the pharmacy’s surveillance video.
26
counsel himself argued to the district court that the jury could readily conclude
that Taylor had chosen to shield his co‐defendants while, nevertheless, naming
Miller. See S.A. 409:2–12. Moreover, neither Rosario’s nor Vasquez’s counsel
ever objected to Miller being named in the redacted confessions or sought
redaction. In such circumstances, there is no basis for the panel to depart from
Tutino.12
Second, as to the panel’s concern with “stilted circumlocutions,” the
purported awkwardness of the employed redactions is not only not akin to that
hypothesized in Jass. It also does not “so closely resemble Bruton’s unredacted
statements” as did the use of a blank space or the word “deleted” in Gray, 523
U.S. at 192. Thus, the panel provides no good reason to depart from courts’
frequent approval of neutral substitutes such as “person” and “individual” for
co‐defendants’ names. See, e.g., United States v. Jass, 569 F.3d at 61 (approving
use of “another person”); United States v. Tutino, 883 F.2d at 1135 (approving
“others,” “other people,” and “another person”); see also United States v. Green,
648 F.3d 569, 575–76 (7th Cir. 2011) (upholding use of “straw buyer” because it is
12 Insofar as it appears that co‐defendants were satisfied to have Miller identified
by name in Taylor’s confessions as part of a strategy bolstering their attack on
her credibility, such a tactical decision would reach beyond forfeiture to
demonstrate true waiver, negating all appellate review. See United States v.
Quinones, 511 F.3d 289, 321 (2d Cir. 2007).
27
“similar to an anonymous reference such as ‘another person’ or ‘an individual’”).
Much less does the panel provide any guidance for district courts as to when
such neutral substitutions will be held so “stilted” as to manifest constitutional
error.
Third, co‐defendants’ own actions hardly support the panel’s departure
from precedent to extend Bruton to the neutral redactions in this case. Although
co‐defendants objected generally to the admission of Taylor’s confessions, they
did not object to the particular language ultimately employed by the district
court. To the contrary, they solicited the use of such gender‐neutral substitutes,
complaining that the government’s suggested substitution of the more colloquial
“guys” implied male confederates. See S.A. 404:23–410:2. Indeed, when the
district court itself expressed concern that co‐defendants’ requests would lead to
an unnatural syntax, Rosario’s counsel insisted that what he was proposing
would “seem more realistic to the jury” and not “awkward.” S.A. 409:10–25; see
also id. 406:20–24 (maintaining that proposed gender‐neutral substitutions
would make statements “less awkward,” “more readable,” and “less obvious[ly ]
redacted”). Further, Rosario’s counsel argued that, if there were any
awkwardness, the jury might well attribute it to Taylor’s deliberate efforts not to
28
name his confederates, see S.A. 409:2–12—the very conclusion that supported
our rejection of a Bruton challenge in Tutino, see 883 F.2d at 1135. Such defense
conduct might well qualify as true waiver of any complaint about stilted
circumlocutions. See United States v. Quinones, 511 F.3d 289, 321 (2d Cir. 2007)
(stating that “true waiver applies with even more force when . . . defendants not
only failed to object to what they now describe as error, but they actively
solicited it”).
On this record, there is no sound basis in law to conclude that redacted
confessions employing neutral substitutes, urged by co‐defendants and
previously approved by this court, caused constitutional injury requiring vacatur
of co‐defendants’ convictions.
b. Immediate Reference to Co‐Defendants
Nor does established precedent support the panel’s conclusion that,
because the “unnamed persons [in the redacted statements] correspond by
number (two) and by role to the pair of co‐defendants,” the redacted confessions
necessarily referred to Rosario and Vasquez. Taylor II, 745 F.3d at 29.
In Jass, we squarely rejected such a numerosity argument, upholding the
replacement of the single female co‐defendant’s name with the singular “another
29
person”—which, given the particulars of the confession, likely referred to a
female—because “a jury would have had to refer to other trial evidence to link
[that co‐defendant] to the redacted statement.” 569 F.3d at 62–63. In evaluating
Bruton challenges to redacted confessions, a reviewing court properly considers
the confessions in isolation, without regard to other evidence. See Richardson v.
Marsh, 481 U.S. at 208 (holding that Bruton does not categorically exclude
confession that is incriminating “only when linked with evidence introduced
later at trial”); cf. Gray v. Maryland, 523 U.S. at 196 (holding redaction
inadequate because jury could “immediately” infer that declarant inculpated co‐
defendant, “even were the confession the very first item introduced at trial”).
This reasoning applies equally to role as to numerosity.
Considering the redacted confessions here in isolation, the jury would not
immediately know that Taylor had assigned the two confederate roles described
therein to co‐defendants Rosario and Vasquez. Such an inference depended on
other evidence, notably, Miller’s testimony. Following Richardson, this court has
consistently declined to identify Bruton error where statements thus inculpate
co‐defendants only “when placed in context with other testimony.” United
States v. Lung Fong Chen, 393 F.3d 139, 150 (2d. Cir. 2004); accord In re Terrorist
30
Bombings of U.S. Embassies in E. Afr., 552 F.3d 93, 134 (2d Cir. 2008). Insofar as
the panel decision now departs from this precedent, it warrants correction en
banc.
* * *
In sum, en banc review is required in this case,
1. to ensure our court’s adherence to Dickerson v. United States, 530 U.S.
428, and Colorado v. Connelly, 479 U.S. 157, in evaluating the voluntariness of a
confession made by an impaired defendant after a valid waiver of Miranda
rights and in response to non‐abusive questioning;
2. to clarify that, consistent with Oregon v. Elstad, 470 U.S. 298, Lyons v.
Oklahoma, 322 U.S. 596, and Tankleff v. Senkowski, 135 F.3d 235, the assessment
of a claim of continuing coercion is not cabined by the trio of illustrative factors
identified in Elstad, but properly extends to the totality of circumstances—which
can include the type of coercion initially employed and defendant’s own
initiation of the second police interview; and
3. to maintain our Bruton jurisprudence consistent with the neutral
redaction principles articulated in Richardson v. Marsh, 481 U.S. 200, Gray v.
31
Maryland, 523 U.S. 185, United States v. Jass, 569 F.3d 47, and United States v.
Tutino, 883 F.2d 1125.
Because of the significance of these legal concerns to our jurisprudence
generally and because proper application of these precedents to this case would
result in affirmance of all three defendants’ challenged convictions rather than
the vacatur ordered by the panel, I respectfully dissent from the denial of
rehearing en banc.
32
Appendix A
33
34
Appendix B
35