United States v. Capers

07-1830-cr
USA v. Capers

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

_____________________

August Term, 2007
(Argued: July 11, 2008 Decided: December 1, 2010)
Docket No. 07-1830-cr
_____________________

UNITED STATES OF AMERICA,

Appellant,

-v.-

WILLIAM CAPERS,

Defendant-Appellee.

_______________________

BEFORE: POOLER and HALL, Circuit Judges, TRAGER, District Judge.*

_______________________

The government appeals from an order entered in the United States District Court for the

Southern District of New York (McKenna, J.) to suppress inculpatory statements made by

defendant-appellee while in custody. We AFFIRM the order of the district court on the ground

that the initial interrogation conducted by an investigator aware of the obvious need for a

*
Judge David G. Trager of the United States District Court for the Eastern District of
New York, sitting by designation.

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Miranda warning, followed 90 minutes later by a second, post-Miranda interrogation by the

same investigator, on the same subject matter, under similar circumstances and with no explicit

curative language amounted to a deliberate, two-step interrogation technique designed to

undermine the defendant’s Miranda rights.

Judge Trager dissents in a separate opinion.

_______________________

Anna E. Arreola, Assistant United States Attorney (Katherine Polk Failla,
Assistant United States Attorney, of counsel), for Preet Bharara, United States
Attorney for the Southern District of New York, New York, New York, for
Appellant.

Jerrold L. Steigman (Cyrus R. Vance, Jr., on the brief), Morvillo, Abramowitz,
Grand, Iason, Anello & Bohrer, P.C., New York, New York, for Defendant-
Appellee.

_______________________

HALL, Circuit Judge:

The government appeals from an order entered in the United States District Court for the

Southern District of New York (McKenna, J.) to suppress inculpatory statements made by

defendant-appellee while in custody. We AFFIRM the order of the district court on the ground

that the initial interrogation conducted by an investigator aware of the obvious need for a

Miranda warning, followed 90 minutes later by a second, post-Miranda interrogation by the

same investigator, on the same subject matter, under similar circumstances and with no explicit

curative language amounted to a deliberate, two-step interrogation technique designed to

undermine the defendant’s Miranda rights.

2
 BACKGROUND

In March 2005, the United States Postal Service suspected defendant-appellee William

Capers, employed as a mail handler, of stealing money orders from Express Mail envelopes.

Postal Inspectors decided to conduct a sting operation targeting Capers. In December 2005,

Inspectors planted two Express Mail envelopes in the mail-sorting facility where Capers worked.

One envelope contained $30 cash, and the other contained two $80 money orders and was

equipped with an alarm device. The alarm was set to trigger automatically in the event the

envelope with the money orders was opened and its contents removed.

Having planted the envelopes in a mail container, Postal Inspectors Hoti, Del Giudice,

Moon, and Chow conducted surveillance of Capers throughout the day. At approximately 5

p.m., Capers noticed the envelopes for the first time. Approximately two hours later, Capers and

Juan Lopez, a fellow employee, entered a trailer holding mail containers and briefly disappeared

from the inspectors’ view. Less than one minute later, the alarm in the envelope sounded, and

the postal inspectors rushed into the trailer to apprehend both Capers and Lopez. The inspectors

handcuffed both suspects. Inspector Hoti instructed Capers to follow him into a supervisor’s

office. Inspectors Del Guidice and Moon also entered the office. They instructed Capers to sit in

a chair, still handcuffed, while the three inspectors stood around him. None of the inspectors

gave Capers a Miranda warning.

According to the testimony of Del Giudice, Hoti said to Capers:

something like, look, you know, talk to me or don’t talk to me, I don’t care but I’m telling
you right now or I’ll tell you that I’m going to do my best to make you go away, and I just

3
 want you to know. And I’ve been watching you all day. I know everything that you did
tonight.

(Hr’g Tr. 95, Sept. 5, 2006.) Hoti then asked Capers where the contents of the Express Mail

envelope were located. Capers gestured toward his right side pants pocket, and Hoti asked

Capers what was in his pocket. Capers replied the money orders. (Hr’g Tr. 34.) Hoti asked for

Capers’ permission to “grab” them, and when Capers said “yes,” Hoti removed the money orders

from Capers’ pocket. (Hr’g Tr. 34.) Hoti asked Capers if the money orders belonged to him, and

Capers said no. (Hr’g Tr. 34.) Capers told Hoti that he got the money orders from the Express

Mail envelope. (Hr’g Tr. 64.) Hoti also questioned Capers about the $30 cash that had been

planted in the other Express Mail envelope, but Capers stated that he did not know anything

about it. The entire questioning took less than five minutes. Regarding the lack of a Miranda

warning, Hoti testified that he did not read Capers his rights because he was in a hurry to track

down the missing money orders so that they did not get lost in the large mail-sorting facility and

because he needed to question Lopez, who was held handcuffed outside the supervisor’s office to

determine his level of involvement in the crime.

Del Giudice and Moon then escorted Capers to a van to transport him to another Postal

Service facility (the “Bronx Domicile”) for further questioning. They waited in the van for

approximately 15 to 20 minutes while the other inspectors located the alarm device from the

opened envelope. In the van, Del Giudice engaged Capers in conversation primarily about

Capers’ automobile. Capers remained handcuffed throughout this time, which included 15 to 20

minutes of waiting and 20 minutes of driving to the Bronx Domicile.

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 When they arrived at the Bronx Domicile, the inspectors placed Capers in an interview

room and handcuffed him to the chair in which he sat. Del Giudice and Moon remained with

him, engaging him in further conversation, and gathering relevant personal information from

Capers for their paperwork. At one point, Capers asked Del Giudice about the possibility of

being fired, and Del Giudice told him that “it’s in your best interest to tell the truth when

Inspector Hoti comes down. Be honest. It’s always better if you’re honest.” (Hr’g Tr. 117.)

Capers and the two postal inspectors waited for approximately 30 to 40 minutes until

Hoti entered the room. Hoti then advised Capers of his Miranda rights. Hoti made no reference,

however, to the statements Capers had already made during the initial interrogation. Hoti

explained in his testimony, “I don’t remember the specific question and its sequence, and I don’t

see a need to say what did you do with the contents of this Express Mail when I already have the

answer to that. So I would not have asked that same question.” (Hr’g Tr. 72.) Capers signed a

Postal Service Warning and Waiver of Rights form, and Hoti proceeded to question Capers about

the events of the evening, specifically asking about what he did with the Express Mail envelopes

earlier that night. Capers verbally confessed to taking the money orders. When Hoti asked him

to provide a written statement, Capers replied by asking, “What’s in it for me?” (Hr’g Tr. 51.)

Hoti told Capers “there’s nothing I can promise you,” and then ended the questioning. (Hr’g Tr.

51.)

Capers was indicted in March 2006, charged with one count of theft of mail matter by a

postal employee, in violation of 18 U.S.C. § 1709. He moved to suppress the inculpatory

statements he made both before and after receiving the Miranda warning, and on March 30,

2007, the district court entered an order suppressing the statements. The district court found that

5
“[t]he government has not shown that . . . defendant relinquished his right to remain silent

voluntarily with a full awareness of the rights being waived and the consequences of doing so.”

United States v. Capers, No. 06 Cr. 266, 2007 WL 959300, at *15 (S.D.N.Y. Mar. 29, 2007)

(internal quotation marks omitted). Although the district court found that the postal inspectors

did not have the “specific intent” to circumvent Capers’ Miranda rights, id., it did find their

interrogation tactics deprived Capers of a “genuine right to remain silent,” id. at *14. The United

States filed a timely notice of appeal.

DISCUSSION

I. Standard of Review

“We review a district court’s determination regarding the constitutionality of a Miranda

waiver de novo.” United States v. Carter, 489 F.3d 528, 534 (2d Cir. 2007). In doing so, we

review “a district court’s underlying factual findings for clear error.” Id.

II. Miranda and the Two-Step Interrogation Technique

The issue before us is whether Hoti and the other postal inspectors deliberately deprived

Capers of the rights to which he is entitled under Miranda v. Arizona, 384 U.S. 436 (1966). The

government argues that the defendant was given an effective Miranda warning prior to making

voluntary inculpatory statements, and therefore the statements he made following the warning

should not have been suppressed by the district court. Capers argues that the rule that the

Supreme Court announced in Missouri v. Seibert, 542 U.S. 600 (2004), and that this Court

further clarified in Carter, requires us to conclude that the postal inspectors’ two-step

interrogation in this case constituted a deliberate violation of Capers’ Miranda rights.

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 “The purpose of the Miranda warning is to ensure that the person in custody has

sufficient knowledge of his or her constitutional rights relating to the interrogation and that any

waiver of such rights is knowing, intelligent, and voluntary.” Carter, 489 F.3d at 534. The

Supreme Court, in Oregon v. Elstad, 470 U.S. 298 (1985), and Seibert, 542 U.S. 600, has twice

addressed situations like this one in which a suspect in custody confessed without having

received a Miranda warning, subsequently received a Miranda warning, and then confessed

again.

Elstad involved a situation in which a suspect made a self-incriminating statement while

two police officers were at his home investigating a robbery. At the time he had not received a

Miranda warning. Elstad, 470 U.S. at 300-01. The officers transported the suspect to a police

station where they gave him a Miranda warning prior to obtaining both an oral and written

confession. Id. at 301. At trial, the defendant moved to suppress the postwarning confessions on

the ground that the statements made at the police station only came about as a result of the first

inadmissable statement made at his house. Id. at 302. The Supreme Court ultimately rejected

the “fruit of the poisonous tree” argument, see Wong Sun v. United States, 371 U.S. 471, 487-88

(1963), and held that “[t]hough Miranda requires that the unwarned admission must be

suppressed, the admissibility of any subsequent statement should turn in these circumstances

solely on whether it is knowingly and voluntarily made,” Elstad, 470 U.S. at 309. The Court

reasoned that the police did not employ any coercive tactics to elicit either confession and that

the defendant made his postwarning confession voluntarily. Id. at 316. The Court concluded

that “the dictates of Miranda and the goals of the Fifth Amendment proscription against use of

compelled testimony are fully satisfied in the circumstances of this case.” Id. at 318.

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 Whereas Elstad involved a good-faith effort by the police to administer a proper Miranda

warning, Seibert addressed the use of a two-step interrogation strategy designed to elicit a post-

Miranda waiver and confession after the defendant had already confessed before he was given

Miranda warnings. In Seibert, the police department had a policy of withholding Miranda

warnings until an arrestee confessed and then reading the arrestee Miranda warnings and asking

for a waiver prior to eliciting a second confession. Seibert, 542 U.S. at 609-10 (plurality

opinion).1 The police in Seibert employed this strategy when they arrested the defendant for

setting a fire that killed a teenager. Id. at 604. After taking the defendant into custody and

deliberately withholding Miranda warnings, the police elicited a confession. Id. at 604-05. The

police then gave the defendant a 20-minute break after which they provided her Miranda

warnings, obtained a signed waiver of rights, and tape-recorded a second confession. Id. at 605.

A majority of the Court admonished against the use of this “question-first” technique and held

that this strategy violated Miranda. Id. at 617; id. at 620-21 (Kennedy, J., concurring).

The Seibert plurality concluded that “[u]pon hearing warnings only in the aftermath of

interrogation and just after making a confession, a suspect would hardly think he had a genuine

right to remain silent, let alone persist in so believing once the police began to lead him over the

same ground again.” Id. at 613 (plurality opinion). The plurality focused on whether the

midstream Miranda warning was effective, and questioned whether “it would be reasonable to

find that in these circumstances the warnings could function ‘effectively’ as Miranda requires

1
The Supreme Court noted a police officer’s testimony at trial that the two-step strategy
was promoted by his department, as well as by a national police training organization and was
corroborated by a manual from the Police Law Institute, which provided instruction on the
technique. Seibert, 542 U.S. at 609-10 (plurality opinion).

8
. . . . [and] advise the suspect that he had a real choice about giving an admissible statement at

that juncture.” Id. at 611-12. Writing for the plurality, Justice Souter laid out five factors to be

weighed when analyzing the effectiveness of the warning: (1) “the completeness and detail of the

questions and answers in the first round of interrogation,” (2) “the overlapping content of the two

statements,” (3) “the timing and setting of the first and second” interrogation, (4) “the continuity

of police personnel,” and (5) “the degree to which the interrogator’s questions treated the second

round as continuous with the first.” Id. at 615.

The plurality voted to suppress the second confession because, unlike in Elstad, the

unwarned interrogation was “systematic, exhaustive, and managed with psychological skill.” Id.

at 616. Applying the five factors, the plurality focused on the facts that both phases of

questioning occurred while the suspect was clearly in custody; there was no advice given to the

suspect that her first statement was inadmissible; the same police officer conducted both

interrogations in the same location with only a 15 to 20 minute break between the two; and

references to the earlier confession fostered an “impression that the further questioning was a

mere continuation” of the first interrogation. Id. The plurality ultimately concluded that “[t]hese

circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda

warnings to the point that a reasonable person in the suspect’s shoes would not have understood

them to convey a message that she retained a choice about continuing to talk.” Id. at 617.

Justice Kennedy agreed with the plurality’s conclusion that the postwarning statements

should be suppressed, but he believed the plurality’s test “cut too broadly,” id. at 622 (Kennedy,

J., concurring), because it applied in instances of “both intentional and unintentional two-stage

interrogations,” id. at 621. Under Justice Kennedy’s approach, the first question would be

9
whether law enforcement officers used a “deliberate two-step strategy” in “a calculated way to

undermine the Miranda warning,” id. at 622, and “to obscure both the practical and legal

significance of the admonition when finally given,” id. at 620. If the answer to that question

were “no,” then the suppression analysis would be governed by the voluntariness standard set

forth in Elstad. Id. If the answer were “yes,” however, the next question would be whether any

curative measures were taken “to ensure that a reasonable person in the suspect’s situation would

understand the import and effect of the Miranda warning and of the Miranda waiver.” Id.

Justice Kennedy provided two examples of such curative measures: (1) “a substantial break in

time and circumstances between the prewarning statement and the Miranda warning . . .

[because] it allows the accused to distinguish the two contexts and appreciate that the

interrogation has taken a new turn”; and (2) “an additional warning that explains the likely

inadmissibility of the prewarning custodial statement.” Id. Reasoning that the police had used a

deliberate two-step interrogation technique and that no curative steps had been taken, Justice

Kennedy concluded that the postwarning statements were inadmissible. Id.

In Carter, this Court joined the Eleventh, Fifth, Ninth, Third, and Eighth Circuits in

applying Justice Kennedy’s approach in Seibert, holding that “Seibert lays out an exception to

Elstad for cases in which a deliberate, two-step strategy was used by law enforcement to obtain

the postwarning confession.” Carter, 489 F.3d at 535. Cf. United States v. Street, 472 F.3d

1298, 1312 (11th Cir. 2006); United States v. Courtney, 463 F.3d 333, 338 (5th Cir. 2006);

United States v. Williams, 435 F.3d 1148, 1157 (9th Cir. 2006); United States v. Kiam, 432 F.3d

524, 532 (3d Cir. 2006); United States v. Hernandez, 384 F.3d 562, 566 (8th Cir. 2004). But see

United States v. Heron, 564 F.3d 879, 884-85 (7th Cir. 2009) (Justice Kennedy’s concurrence is

10
not controlling). In Carter, law enforcement agents recovered a large bag of drugs after

searching a restaurant owned and operated by the suspect. Id. at 531. Approximately 30 minutes

after the search concluded, an agent noticed the suspect sitting outside the restaurant and, in a

casual fashion, asked him about a brown substance found in the bag of drugs. The agent asked if

the substance was heroin, and the suspect replied, “No, it’s bad.” Id. at 532. The agent then

asked, “Bad what?,” to which the suspect replied, “Bad coke.” Id. The agent later testified that

he asked the suspect about the drugs solely “out of curiosity.” Id. Approximately 30 minutes

later, after the defendant was given a Miranda warning and after he signed a Miranda waiver

form, a different agent conducted a formal interrogation and elicited a full confession. Id. at 533.

The latter agent had no knowledge of the suspect’s previous statement about the brown substance

and did not learn about it until shortly before the trial commenced. Id. The defendant moved to

suppress the second confession on the grounds that he did not knowingly and voluntarily waive

his Miranda rights. Id. at 534.

Analyzing “[t]he factual differences between [Carter’s] case and Seibert,” id. at 536, we

determined that the agents in Carter did not deliberately use a two-step interrogation strategy

designed to circumvent Miranda for three reasons: (1) there was almost no overlap between the

suspect’s first statement and his subsequent confession; (2) different officers questioned the

suspect at different locations (the first outside the store that was being searched and the second in

an interrogation room), and the second officer was not aware of the suspect’s previous

inculpatory statement; and (3) “the postwarning questioning was not a continuation of the

11
prewarning question.”2 Id. at 536. Accordingly, applying Elstad, we determined that Carter’s

postwarning statement was made knowingly and voluntarily, and it was properly admissible at

trial. Id. at 536-37.

Here, in a decision that predated Carter, the district court found that Capers did not give

his post-Miranda warning statement “voluntarily with a full awareness of the rights being waived

and the consequences of doing so.” Capers, 2007 WL 959300, at *15 (internal quotation marks

omitted). For that reason, it suppressed Capers’ statement. In so doing, the district court rejected

Justice Kennedy’s approach in Seibert, explaining that Justice Kennedy’s concurring opinion

“cannot reasonably be taken to be the law of the land,” because it did not represent the majority

opinion of the Supreme Court. Id. at *11 (internal quotation marks omitted).

In a footnote to its decision, the district court remarked that “if Justice Kennedy’s Seibert

concurrence represented the law, suppression would be denied.” Capers, 2007 WL 959300, at

*15 n.17. The district court based this statement, which under the circumstances constituted

dictum, on its understanding that Justice Kennedy’s test turned on “the subjective intent of the

police,” id. at *10, coupled with the district court’s own determination that the inspectors in this

case did not have the “specific intent” to evade Miranda, id. at *12.

Our intervening decision in Carter, however, requires a different analysis. Under Carter,

we must address whether the officers employed a “deliberate, two-step strategy, predicated upon

2
Because we concluded that the Seibert approach was inapplicable in Carter, we did not
reach the issue of whether the police undertook any curative measures such that the suspect
“would understand the import and effect of the Miranda warning and of the Miranda waiver.”
Seibert, 542 U.S. at 622 (Kennedy, J., concurring).

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violating Miranda during an extended interview,” Seibert, 542 U.S. at 621, and if so, whether

“specific, curative steps,” id., were taken to obviate the violation that occurred.

III. Deliberateness

In Seibert, because the record was clear that the interrogating officers intentionally and

purposefully employed a technique in which they had been instructed, id. at 609-10, Justice

Kennedy had no reason to explore how a court should determine when a two-step interrogation

strategy had been executed deliberately. Wrestling with the problem we now address, the Ninth

Circuit has stated:

As an initial matter, we note that Justice Kennedy did not articulate how a court
should determine whether an interrogator used a deliberate two-step strategy. . . .

For example, Justice Kennedy’s opinion is silent as to what, if any presumptions
apply or which party bears the burden of proving or disproving deliberateness.

United States v. Williams, 435 F.3d 1148, 1158 & n.11 (9th Cir. 2006).

In constructing a method to determine deliberateness, the Ninth Circuit in Williams

looked to whether “objective evidence and any available subjective evidence, such as an officer’s

testimony, support an inference that the two-step interrogation procedure was used to undermine

the Miranda warning.” Id. at 1158. Following on the Ninth Circuit’s guidance, the test

articulated by the Eleventh Circuit to determine deliberateness relies upon “the totality of the

circumstances including ‘the timing, setting and completeness of the prewarning interrogation,

the continuity of police personnel and the overlapping content of the pre- and post-warning

statements.’” United States v. Street, 472 F.3d 1298, 1314 (11th Cir. 2006) (quoting Williams,

435 F.3d at 1159). The Fifth Circuit’s articulation of when deliberateness may be inferred also

relies upon the totality of the circumstances surrounding the interrogations:

13
 [T]here was nothing in the circumstances or the nature of the questioning to indicate
that coercion or other improper tactics were used. All evidence suggests that Nunez
was calm and cooperative, and the agents did not act with aggressiveness or hostility.
The district court stated that “the defendant initially had done nothing more than
voluntarily respond to questions as to his name, place of birth, and immigration
status.”

United States v. Nunez-Sanchez, 478 F.3d 663, 668-669 (5th Cir. 2007). 3

In our Court’s opinion in Carter, 489 F.3d at 528, without expressly stating that we were

doing so, we similarly analyzed objective factors. In the context of the interrogation that took

place there, we needed only to consider three factors to conclude that the interrogating officers

did not deliberately employ a two-step interrogation procedure: (1) there was no overlap between

the suspect’s first and second statements; (2) different officers questioned the suspect at different

locations, and the second officer was not aware of the suspect’s previous inculpatory statement;

and (3) “the postwarning questioning was not a continuation of the prewarning question[ing].”

Carter, 489 F.3d at 536.

These considerations, while determinative of the analysis of deliberateness on the facts

presented in Carter, are by no means the only factors to be considered when seeking to divine

whether the officers’ actions are sufficiently indicative of a deliberate circumvention of Miranda

to require that a defendant’s statements must be suppressed. We recognize the wisdom of Justice

3
In an unpublished Order and Judgment the Tenth Circuit, while declining to endorse
either Kennedy’s concurrence or the Seibert plurality opinion as the holding of Seibert, explained
in United States v. Crisp, No. 09-5063-cr, 2010 U.S. App. LEXIS 7077, at *19-21 (10th Cir. Apr.
5, 2010), that the defendant’s argument that his pre-warning statement was the product of a
deliberate two-step interrogation was unavailing because no coercion was evident in either the
surrounding circumstances or the content of the questioning, the pre-arrest statement “occurred
after the parties had bantered about the pursuit and in response to a question about the marijuana
use” of the defendant’s female companion, and “the pre-Miranda statements also were unrelated
to the post-Miranda statements regarding cocaine base.”

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Souter’s observation that “the intent of the officer will rarely be as candidly admitted as it was”

in Seibert, where the interrogating officer testified not only that he was trained to execute a two-

step interrogation procedure but also implied that the tactic is taught nationwide. Seibert, 542

U.S. at 616 n.6. In light of the above, we join our sister circuits in concluding that a court should

review the totality of the objective and subjective evidence surrounding the interrogations in

order to determine deliberateness, with a recognition that in most instances the inquiry will rely

heavily, if not entirely, upon objective evidence. Cf. Seibert, 542 U.S. at 622 (Kennedy,

concurring) (“[A] multifactor test that applies to every two-stage interrogation may serve to

undermine th[e] clarity [of Miranda].”).

Recognizing the inherent difficulty in proving deliberateness, and also conceding that

“determining the officer's state of mind at the time of the interrogation can be difficult,” we turn

to the unsettled question of which party bears the burden of proving deliberateness or absence

thereof. United States v. Ollie, 442 F.3d 1135, 1142 (8th Cir. 2006). For the following reasons,

we hold that the burden rests on the prosecution to disprove deliberateness.

“[W]hen a confession challenged as involuntary is sought to be used against a criminal

defendant at his trial, he is entitled to a reliable and clear-cut determination that the confession

was in fact voluntarily rendered.” Lego v. Twomey, 404 U.S. 477, 489 (1972). Accordingly,

courts place upon the government the burden to prove that a defendant’s confession was

voluntary. See, e.g., Colorado v. Connelly, 479 U.S. 157, 168 (1986). The question of

deliberateness, while distinct from voluntariness, will nonetheless be dispositive of a defendant’s

challenge to the voluntariness of a confession garnered from a two-step interrogation procedure.

See United States v. Stewart, 536 F.3d 714, 719 (7th Cir. 2008). The Eighth Circuit, which also

15
places the burden on the government to disprove deliberateness, cautioned that while “the law

generally frowns on requiring a party to prove a negative,” the Supreme Court has consistently

required the government to prove the admissibility of a confession against a criminal defendant,

Ollie, 442 F.3d at 1143. See also Brown v. Illinois, 422 U.S. 590, 603-04 (1975) (requiring the

government to show that a confession was not the fruit of an earlier illegal arrest); Connelly, 479

U.S. at 168 (requiring the government to show that defendant’s Miranda waiver given during an

alleged psychotic episode, was knowing and voluntary).

Indeed, the Supreme Court has “always set high standards of proof for the waiver of

constitutional rights . . ..” Tague v. Louisiana, 444 U.S. 469, 470 (1980). In Tague, the Court

held: “Since the State is responsible for establishing the isolated circumstances under which the

interrogation takes place and has the only means of making available corroborated evidence of

warnings given during incommunicado interrogation, the burden is rightly on its shoulders.” Id.

Guided by Tague, we are mindful that evidence of deliberateness or lack thereof is similarly in

the hands of the government, and we are further persuaded that the party seeking to introduce the

confession should remain responsible for showing that it was not obtained through a subterfuge.

With respect to the quantum of proof necessary, we are mindful that Miranda may

impose a “heavy burden [upon] the government to demonstrate that the defendant knowingly and

intelligently waived his privilege against self-incrimination,” and that in order to satisfy that

burden a “high standar[d] of proof” is applicable. Berghuis v. Thompkins, 2010 U.S. LEXIS

4379, *43-44 (June 1, 2010) (Sotomayor, J., dissenting). Nonetheless, “[w]henever the State

bears the burden of proof in a motion to suppress a statement that the defendant claims was

obtained in violation of our Miranda doctrine, the State need prove waiver only by a

16
preponderance of the evidence.” Connelly, 479 U.S. at 168. We apply the preponderance

standard to Miranda challenges in recognition that Miranda is an exclusionary rule “aimed at

deterring lawless conduct by police and prosecution,” and that imposing a higher burden of proof

would do little to mitigate prosecutorial overreaching while at the same time concealing troves of

probative evidence from the eyes of the jury. Twomey, 404 U.S. at 489. For similar reasons, we

hold that the government must meet its burden of disproving the deliberate use of a two-step

interrogation technique by a preponderance of the evidence.

Looking to the totality of the circumstances in the case before us, the evidence proffered

by the government to show that Capers was not the subject of a deliberate, two-step interrogation

is outweighed by subjective and objective evidence to the contrary. Hoti testified that he delayed

issuing a Miranda warning because his “mindset was on, one . . . recovering evidence, . . . [a]s

well as determining if the two of them or if — either both of them or only one of them had any

role to play in committing the crime.” (Hr’g Tr. 65.) Hoti testified that he was concerned about

losing the money orders in the “very, very large” facility because the money orders were about

the size of a U.S. dollar and the defendants could “toss them, hide them . . . [and] [y]ou’d have a

real, real tough time finding [them] in this large facility like that with all the packages and other

types of mail.” (Hr’g Tr. 31-31.) As to making a determination about defendant Lopez, Hoti

testified that “[i]f I could determine fairly quickly that, in fact, he had no role to play in that

crime, I need to take those cuffs off and basically cut him loose.” (Hr’g. Tr. 35.) When asked

whether he was in a position to read Capers his Miranda warnings before asking him about the

money orders, Hoti replied “absolutely.” (Hr’g. Tr. 65.)

17
 The district court concluded from this testimony that Hoti’s purpose in delaying a

Miranda warning was not to undermine Capers’ Fifth Amendment rights, but rather “to prevent

the loss or concealment of the currency and money orders that the Express Mail envelopes

contained, and to ascertain whether Lopez was involved in the crime, so that he could be freed or

not.” Id. at *12 n.13 (citation omitted). Neither of these reasons, however, justifies delaying a

Miranda warning once it is obvious that a suspect is in custody. There is no exception to

Miranda that allows a delay in giving Miranda warnings in order to preserve evanescent

evidence. Neither is there an exception to Miranda that permits delaying the warnings in order to

ascertain whether a suspected co-conspirator may be entitled to release. Indeed, we agree with

the Williams Court in its observation that

[o]nce a law enforcement officer has detained a suspect and subjects him to
interrogation . . . there is rarely, if ever, a legitimate reason to delay giving a Miranda
warning until after the suspect has confessed. Instead, the most plausible reason . .
. is an illegitimate one, which is the interrogator’s desire to weaken the warning’s
effectiveness.

435 F.3d at 1159. The only legitimate reason to delay intentionally a Miranda warning until after

a custodial interrogation has begun is to protect the safety of the arresting officers or the public --

neither of which was an issue here. See, e.g., United States v. Newton, 369 F.3d 659, 677 (2d

Cir. 2004) (recognizing this “narrow exception” to the Miranda rule).

Inexperience, while not a legitimate excuse for postponing a Miranda warning,

nevertheless may save a confession from exclusion under Seibert. See United States v. Naranjo,

426 F.3d 221, 232 (3d Cir. 2005) (implying that an “inadvertent” Miranda omission, or a “rookie

mistake,” should not warrant Seibert scrutiny). In the case before us, however, sufficient

subjective evidence was adduced to rule out the officers’ inexperience as well as raise significant

18
doubts as to whether a mistake had been made. The district court found it clear from Hoti’s

testimony and from his experience in law enforcement that his failure to Mirandize Capers was

not an accident. The district court explained: “Inspector Hoti did not merely forget to give

defendant Miranda warnings . . . Inspector Hoti had served as a New York City police officer for

some three years, and as Inspector Del Giudice testified, postal inspectors are ‘trained to provide

Miranda when there is a custodial interrogation.’” Capers, 2007 WL 959300 at * 12. Indeed,

Hoti explicitly testified that he “absolutely” was in a position to inform Capers of his Miranda

rights once Capers was confined to the supervisor’s office. (Hr’g Tr. 65.) The arrest of Capers

did not occur “out of the blue,” as it might were Hoti driving to work and witnessed a crime in

progress, or were he responding to a radio call reporting a crime in progress. Capers’ arrest was

the culmination of a nine-month investigation into Capers’ suspected criminal activity. In

surveiling Capers and determining when to give the order to his team to descend on Capers and

Lopez, therefore, Hoti had time to think through what procedural steps he would need to take

following arrest in order to build his case for prosecution. Because, as the district court found,

Hoti had sufficient experience to know that a Miranda warning was unquestionably necessary in

connection with Capers’ post-arrest interrogation, the corollary to that finding must also obtain.

Hoti was experienced enough to know that in this case there was no valid reason to delay a

Miranda warning until after questioning a suspect in custody.

The district court found that there was “no evidence . . . that Inspector Hoti had the

specific intent to use the two-stage questioning technique” to undermine Capers’ Miranda rights.

Capers, 2007 WL 959300 at * 12. The dissent endorses this finding, arguing that “there is

nothing suspicious about the reasons put forth by Inspector Hoti.” Dissent at 39. Considering

19
the totality of the circumstances, however, we find Inspector Hoti’s proffered reasons for

delaying the Miranda warning to lack not only legitimacy, but also credibility. Inspector Hoti

explained that he delayed informing Capers of his Miranda rights because Hoti had to determine

if Lopez was involved in the scheme, and if he was not, release him. If Capers had told Inspector

Hoti during the initial interrogation that Lopez had nothing to do with the scheme, would

Inspector Hoti, who had just witnessed the two men enter a storage container and the envelope

alarms subsequently sound, then have released Lopez on his own recognizance? We consider

such a conclusion dubious. With respect to Hoti’s claim that he did not want to lose the money

orders and cash in the large postal facility, this assertion is belied by the testimony of the

arresting officers that Capers and Lopez were detained almost directly after the envelope alarm

sounded and were found either still in the storage container, or in that immediate vicinity. In

light of the above, as well as objective evidence discussed below, the district court’s finding that

there was “no evidence” of a deliberate, two-step interrogation tactic at work was clear error.

Capers, 2007 WL 959300 at * 12.

The dissent asserts that the “test used by the majority to determine whether Inspector Hoti

deliberately utilized a two-step interrogation technique effectively undermines the subjective test

established by Justice Kennedy . . . because it ignores subjective evidence showing that the

inspector did not deliberately utilize a two-step technique, and instead relies exclusively on the

objective factors listed in the non-controlling Seibert plurality opinion.” Dissent at 38. This

conclusion misreads our analysis and conflates Justice Kennedy’s test with that articulated by

Justice Breyer in his concurring opinion in Seibert. 542 U.S. at 617 (Breyer, J., concurring)

(“Courts should exclude the ‘fruits’ of the initial unwarned questioning unless the failure to warn

20
was in good faith.”) (citations omitted). By contrast, our analysis considers the subjective

evidence adduced at the suppression hearing in the context set forth by Justice Kennedy — as

instructive but not automatically dispositive. Justice Kennedy’s concurrence in Seibert does not

advocate a test whereby a deliberate two-step interrogation will be found only when a law

enforcement officer admits to executing such a strategy. Nor does this test envision blind,

unquestioning reliance on the testimony of arresting and interrogating officers. To the contrary,

because Justice Kennedy’s test seeks to exclude only those statements that are the result of

deliberate and calculated police strategies to undermine Miranda, a searching and penetrating

inquiry of the officer’s testimony and proffered reasons for delaying Miranda warning is

therefore necessary to determine when these strategies are being employed.

The dissent asserts that the above consideration “gives absolutely no weight to the

inspector’s testimony that his reasons for not immediately advising Capers of his Miranda rights

were to prevent the loss or concealment of the currency and money orders that the Express Mail

envelope contained and to ascertain whether Lopez was involved in the crime.” Dissent at 38.

The dissent argues that Judge McKenna “witnessed Inspector Hoti’s testimony and was therefore

better able to assess his credibility.” Dissent at 11. Although appellate courts do not have the

opportunity to observe witness testimony and are, therefore, precluded from making credibility

determinations, in light of the clear inconsistency between Inspector Hoti’s stated reasons for

delaying Miranda warnings and the objective and subjective evidence constituting the remainder

of the record bearing on this point, it is clear the district court’s determination “that there is no

evidence . . . Inspector Hoti had the specific intent to use the two-stage questioning technique

with the purpose of first obtaining unwarned incriminating statements in order, in a subsequent

21
warned interrogation, to obtain similar incriminating statements,” Capers, 2007 WL 959300 at

*12, afforded blind and absolute weight to the testimony of the arresting officers and ignored all

the other relevant evidence which we here announce must also be considered. 4 If Justice

Kennedy’s test is to have any meaning outside of the unique and never-again-to-be-repeated

circumstances of Seibert, the district court’s unidimensional analysis cannot be determinative of

the outcome in this case.

Objective evidence also leads us to conclude that the Government has failed to meet its

burden of demonstrating that Capers was not subjected to a two-step interrogation. First, there is

considerable overlap between the statements elicited from the defendant during the first and

second interrogation. Hoti’s initial interrogation of Capers resulted in a confession and “there

remained ‘little, if anything, of incriminating potential left unsaid.’” Capers, 2007 WL 959300,

at *13 (quoting Seibert, 542 U.S. at 616) (plurality opinion). The circumstances surrounding the

two sessions of the interrogation, including the nature of the respective environs in which the

interrogation took place and the continuity of the cast of interrogating officers, was indicative of

a deliberate two-step interrogation. While the location of the interrogation sessions changed, the

4
We note that in light of the district court’s conclusion that “Justice Kennedy’s
concurrence . . . cannot reasonably be taken to be the ‘law of the land,’” it likely did not avail
itself of a number of opinions by our sister circuits, which have been instructive in our analysis,
advising trial courts how to gauge deliberateness under Justice Kennedy’s Seibert concurrence.
See Street, 472 F.3d at 1312 (11th Cir. 2006); Courtney, 463 F.3d at 338 (5th Cir. 2006);
Williams, 435 F.3d at 1157 (9th Cir. 2006); Kiam, 432 F.3d at 532 (3d Cir. 2006); Hernandez,
384 F.3d at 566 (8th Cir. 2004). Indeed it appears as though the district court thought that the
Kennedy test required it to analyze only the statements of the offending officer, without reference
to any other facts, possibly contradictory to the statements of the officer, that appeared on the
record.

22
first taking place in a room at the post office and the second in the Domicile, the inquisitorial

environment of the questioning was consistent.

Unlike in Carter, the initial conversation between Capers and Hoti was in no way casual.

See Nunez-Sanchez, 478 F.3d at 663-69. It began with Hoti’s opening statement to Capers that

“I’m going to do my best to make you go away, and I just want you to know.” (Hr’g Tr. 95.)

Capers was handcuffed throughout the process. On the facts presented, the district court

correctly concluded, and we agree, that Hoti’s initial questioning was indeed a formal

interrogation. See Capers, 2007 WL 959300, at *4 (concluding that Capers was in custody from

the moment he was handcuffed).

Between the two phases of the interrogation, Hoti’s fellow inspectors engaged Capers in

“small talk,” and advised him that it was in his interest to tell the truth when Hoti arrived.

Capers continued to be handcuffed throughout the process. The second phase of the

interrogation also opened with a hostile remark, namely Hoti’s observation that Capers was “one

of the most laziest employees I’ve ever seen.” Cf. Nunez-Sanchez, 478 F.3d at 668-69 (finding

that there was “no evidence of a deliberate attempt to employ a two-step strategy” because, inter

alia, “the agents did not act with aggressiveness or hostility”). In combination with the Miranda

warning, the inspectors clearly established that this second encounter was not a casual

conversation. For the most, part there was also continuity in the officers present at both

interrogations. During the first interrogation Hoti asked the questions, while Del Guidice and

Moon were present in the room. The second interrogation, at the outset, involved the same three

inspectors with Hoti again asking the questions and Del Giudice and Moon remaining silent.

23
 Finally, the temporal proximity of the pre- and post-warning interrogations, along with

the continuity of Caper’s custody, reasonably leads to the conclusion that the latter was a

continuation of the former. Only 90 minutes separated the two interrogation sessions. And while

not carried out to the degree it was in Seibert, at least to some extent the latter session was

“essentially a cross-examination using information gained during the first round of

interrogation.” See Carter, 489 F.3d at 536. Accordingly, the government has not produced

sufficient objective evidence to meet its burden to dispel a conclusion that Hoti’s conduct

amounted to a deliberate “question first” interrogation tactic designed to undermine Capers’

exercise of his Miranda rights. 5

IV. Curative Measures

Deliberateness having been established, we must next consider whether any curative

measures intervened to restore the defendant’s opportunity voluntarily to exercise his Miranda

rights. See Seibert, 542 U.S. at 622 (Kennedy, J., concurring) (“[P]ostwarning statements that

are related to the substance of prewarning statements must be excluded unless curative measures

are taken before the postwarning statement is made.”). As noted, Justice Kennedy provided two

5
The dissent argues that under the test outlined above “in almost all cases where a pre-
warning confession is suppressed due to a violation of the suspect’s Miranda rights, a subsequent
post-warning confession will also be suppressed because the interrogating officer will be unable
to articulate a ‘legitimate’ reason for not advising the suspect of his or her Miranda rights prior to
the initial interrogation.” Dissent at 40. This conclusion also misreads our reasoning. To the
contrary, there be will many occasions where the totality of the circumstances surrounding the
two interrogations leads to the conclusion that a two-step interrogation was the product of a
“rookie mistake,” resulted from poor communication among investigating officers, or occurred
when an experienced officer suffered a momentary lapse in judgment. What will require higher
scrutiny are situations where, as here, an experienced officer conducts both interrogations, and
the reasons proffered for not initially Mirandizing a suspect are not only questionable but also
inherently lack credibility in light of the totality of the circumstances.

24
examples of potential curative measures: (1) “a substantial break in time and circumstances

between the prewarning statement and the Miranda warning,” and (2) “an additional warning that

explains the likely inadmissibility of the prewarning custodial statement.” Id. Based on the facts

before us, we cannot say that any such curative measure occurred such that it rendered effective

the Miranda warnings given to Capers before the second interrogation.

As discussed, although approximately 90 minutes passed between the first and second

interrogations, the two rounds of questioning bracketed one continual process. Del Giudice and

Moon were with Capers throughout the 90 minutes, engaging in “small talk” and advising Capers

to tell the truth. Despite the different locations of the interrogation sessions, both occurred while

Capers remained in handcuffs and in settings that clearly established the authoritative nature of

the questioning. There is little meaningful difference between the circumstances surrounding

Capers’ two interrogation sessions, and there was certainly no “substantial break” that would

have restored his Miranda rights.

Moreover, despite Hoti’s knowledge that Capers’ first statement would be inadmissable

in court, he never alerted Capers to that fact. Capers, 2007 WL 959300, at *14. Hoti continued

his line of questioning without dispelling Capers’ probable assumption that he had already

incriminated himself based on his first confession. Hoti revealed as much in his testimony.

When asked whether he posed some of the same questions at the Bronx Domicile as he had

asked earlier in the supervisor’s office, Hoti replied that he did not see the need to ask the same

questions for which he already had answers. (Hr’g Tr. 72.) By the same token, Hoti did build on

Capers’ admission of theft in the original session by structuring the second interrogation session

to elicit a play-by-play description of how Capers went about stealing the money orders. Capers

25
thus had no reason to know that his first broad confession could not be used against him when,

only 90 minutes later while still in close custody, he actually “waived” his Miranda rights.6 On

these facts, there were no measures taken to cure the inspectors’ use of the deliberate, two-step

interrogation strategy. Because on the objective and subjective evidence we are left to conclude

that the inspectors employed a strategy to circumvent the defendant’s Miranda rights and because

there were no curative measures to ensure that the defendant was not misled with regard to his

rights prior to his second confession, Capers’ waiver of his Miranda rights was invalid. The

district court, therefore, properly suppressed his post-warning confession.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s decision to suppress the

defendant’s post-Miranda statements.

6
Consideration of whether or not curative measures were taken is an inquiry separate and
apart from determining deliberateness. When analyzing deliberateness, however, courts may
consider an experienced officer’s failure to warn a suspect that an earlier admission, known to
the interrogating officer, is inadmissible. Indeed such an omission on the part of the interrogating
officer is probative of a “calculated” plan to subvert Miranda.

26
TRAGER, District Judge, dissenting:

I respectfully dissent. My colleagues claim to follow this Court's previous decision in

Carter v. United States, 489 F.3d 528 (2d Cir. 2007), and by extension Justice Kennedy's

concurring opinion in Missouri v. Seibert, 542 U.S. 600 (2004) – both of which require the

district court to determine an interrogating officer's subjective intent for failing to warn a suspect

of his Miranda rights. But the novel test crafted by the majority, which examines whether the

interrogating officer's reasons would be deemed "legitimate" under Miranda and its progeny,

instead makes subjective evidence virtually irrelevant in nearly every two-step interrogation case.

As such, the majority's decision undermines Justice Kennedy's controlling opinion in Seibert and

replaces it with the objective "effectiveness" test proposed by the non-controlling Seibert

plurality opinion.

A more faithful application of Justice Kennedy's Seibert concurrence requires a

conclusion that Capers' post-warning statements are admissible based on the district court's

factual finding – made after a thorough review of all of the evidence – that Inspector Hoti did not

deliberately utilize a two-step interrogation technique. The majority improperly undertakes a de

novo review of the district court's factual findings rather than reviewing them using the

traditional "clearly erroneous" standard. The majority suggests that a de novo review is made

necessary by its purported construction of a novel "totality of the circumstances" test for

determining whether an interrogating officer purposefully utilized a two-step interrogation

technique. But this new test is entirely consistent with the one used by the district court to find

that Inspector Hoti did not deliberately use such a technique, and therefore provides no

basis to review the district court's factual findings de novo.

27
 Moreover, even if de novo review is appropriate in this case, I would still disagree with

the majority's decision to suppress the post-warning confession because the government has met

its burden of proving by a preponderance of the evidence that Inspector Hoti did not intend to

utilize a two-step interrogation technique. To the extent that the majority finds that any of the

district court's factual findings were clearly erroneous, the majority misapplies the clearly

erroneous standard by making credibility determinations regarding witness testimony. Such

credibility determinations, while never appropriate for an appellate court to make, are particularly

inappropriate where, as here, there is nothing in Inspector Hoti's testimony that is either

contradicted by the record evidence or inherently unbelievable.

Because a proper review of all the evidence (including the subjective evidence)

establishes that Inspector Hoti did not deliberately utilize a two-step interrogation technique to

circumvent Miranda, the voluntary statements made in response to the post-warning

interrogation should not be suppressed.

I

This case involves a suspect who made a self-incriminating statement in response to

questions from an interrogating officer prior to being warned of his Miranda rights, and then

later made additional self-incriminating statement after being warned of his Miranda rights. The

Supreme Court has twice considered cases of this nature – first in Oregon v. Elstad, 470 U.S. 298

(1985), and again in Missouri v. Seibert, 542 U.S. 600 (2004).

In Oregon v. Elstad, two officers went to the home of Michael Elstad – an individual they

suspected of robbing a neighbor's house – with a warrant for his arrest. While there, one of the

28
officers had a brief conversation with the suspect without warning him of his Miranda rights.

470 U.S. at 300-01. The officer apparently failed to issue the warnings because it was not clear

to him whether the suspect was in custody at the time. Id. at 315. During the conversation, the

officer asked the suspect whether he knew the individual whose house had been robbed, to which

the suspect responded by making an incriminating statement. Following that statement, the

suspect was arrested and transported to the station house. Approximately one hour later, the

same two officers who had arrested the suspect at his home advised him of his Miranda rights,

and then proceeded to take a full statement from him. Id. at 301-02.

The Supreme Court found that, although the initial unwarned statement was inadmissible,

the later postwarning statement was admissible because it was voluntarily made. According to

the Court, "[t]hough Miranda requires that the unwarned admission must be suppressed, the

admissibility of any subsequent statement should turn in these circumstances solely on whether it

is knowingly and voluntarily made." Id. at 309.

The issue of pre- and post-warning confessions again came before the Supreme Court in

Missouri v. Seibert. In that case, the Court was confronted with the intentional use of a two-step

interrogation technique where officers in the Rolla, Missouri police department had been trained

to "withhold[] Miranda warnings until after interrogating and drawing out a confession," Seibert,

542 U.S. at 609 (plurality opinion), in order to "get a confession the suspect would not make if he

understood his rights at the outset," id. at 613. The Court produced several opinions, none of

which garnered the support of a majority of the Justices. Writing for four Justices, Justice Souter

found that the post-warning statements were inadmissible (even though they were voluntarily

made within the meaning of Elstad) because "the question-first tactic effectively threatens to

29
thwart Miranda's purpose of reducing the risk that a coerced confession would be admitted, and

because the facts here do not reasonably support a conclusion that the warnings given could have

served their purpose . . . ." Id. at 617.

Justice Souter's plurality opinion sets forth an objective test from the perspective of the

suspect being interrogated, whereby a court deciding the admissibility of post-warning statements

that followed inadmissible pre-warning statements should determine "whether it would be

reasonable to find that in these circumstances the warnings could function 'effectively' as

Miranda requires." Id. at 611-612. The plurality described "effectiveness" as "[whether] the

warnings effectively advise the suspect that he had a real choice about giving an admissible

statement at that juncture" and "[whether] they reasonably convey that he could choose to stop

talking even if he had talked earlier." Id. According to the plurality, a court should perform this

inquiry in all cases where the admissibility of post-warning statements is challenged based on the

lingering effects of an inadmissible pre-warning interrogation. Id. This test would be performed

in addition to the Elstad inquiry into whether the statements were knowingly and voluntarily

made.

The plurality then listed several objective factors that a court should consider when

determining whether the warning could function effectively. These factors included: (1) the

completeness and detail of the questions and answers in the first round of interrogation, (2) the

overlapping content of the two statements, (3) the timing and setting of the first and second, the

continuity of police personnel and (4) the degree to which the interrogator's questions treated the

second round as continuous with the first. Id. at 615.

30
 Justice Kennedy, writing separately in an opinion joined by Justice Breyer, agreed with

the plurality that the post-warning statements should be suppressed, but suggested a different test

for determining their admissibility. In contrast to the plurality’s objective test, Justice Kennedy –

focusing more on the conduct of law enforcement – proposed a "narrower test applicable only in

the infrequent case, such as we have here, in which the two-step interrogation technique was used

in a calculated way to undermine the Miranda warning." Id. at 622 (Kennedy, J., concurring).

According to Justice Kennedy: "When an interrogator uses this deliberate, two-step strategy,

predicated upon violating Miranda during an extended interview, postwarning statements that are

related to the substance of prewarning statements must be excluded absent specific, curative

steps." Id. at 621. If the court finds that the interrogator did not deliberately use a two-step

strategy, then "the admissibility of postwarning statements should continue to be governed by the

principles of Elstad." Id. at 622.

In reaching this conclusion, Justice Kennedy rejected the majority's purely objective test,

which was to be applied in cases of both intentional and unintentional two-stage interrogations,

as "cut[ting] too broadly." Id. at 621-22. Instead, Justice Kennedy felt that a court should only

consider whether the Miranda warning was effective – or, in Justice Kennedy's words, whether

"curative measures are taken before the postwarning statements are made" – in cases where the

interrogator intentionally used the two-step technique. Id. at 622. In cases where the interrogator

did not intentionally use a two-step technique to undermine Miranda, Justice Kennedy felt that

the "effectiveness" test should not be applied. Id.

Despite the fragmented nature of the decisions in Seibert, both the Supreme Court's and

this Court's precedents make clear that Justice Kennedy's concurring opinion controls. "When a

31
fragmented Court decides a case and no single rationale explaining the result enjoys the assent of

five Justices, 'the holding of the Court may be viewed as that position taken by those Members

who concurred in the judgment on the narrowest grounds." Marks v. United States, 430 U.S.

188, 193 (1977). In Seibert, Justice Kennedy's opinion, which provided the fifth vote for

suppressing the self-incriminating statements made by the defendant, controls because it provides

a narrower exception to Elstad than the test proposed by the plurality. Whereas the plurality

suggested that all cases where a two-step interrogation took place should be reviewed for the

objective effectiveness of the Miranda warning, Justice Kennedy's concurring opinion holds that

such a review should only take place in cases where the interrogator intentionally used a two-step

technique to circumvent Miranda. The tests suggested by the plurality and Justice Kennedy

diverge in cases where the interrogator unintentionally performed a two-step interrogation. In

those cases, Justice Kennedy's concurring opinion states that the Elstad inquiry into whether

statements were "knowingly and voluntarily made" still controls, whereas the plurality opinion

states that the newly-crafted "effectiveness" test should also be applied. Because the test stated

in Justice Kennedy's concurring opinion applies the "effectiveness" inquiry – which was

approved for use in at least some circumstances by a majority of the Court – to a narrower set of

cases than the test stated in the plurality opinion, Marks dictates that it be considered the

controlling opinion from Seibert.1

1
The applicability of Marks to Seibert is unaffected by this Court's opinion in United
States v. Alcan Aluminum Corp., 315 F.3d 179 (2d Cir. 2003). That case found that Marks was
inapplicable to the Supreme Court's splintered decision in Eastern Enterprises v. Apfel, 524 U.S.
498 (1998), because Justice Kennedy's concurrence was "not a logical subset" of the plurality's
analysis. Alcan Aluminum Corp., 315 F.3d at 189. In Eastern Enterprises, a four-Justice
plurality found that the Coal Industry Retiree Health Benefits Act ("Coal Act") violated the
Takings Clause of the Fifth Amendment. 524 U.S. at 537-38 (plurality opinion). Justice

32
 Even more importantly for our purposes, this Court has already held that Justice

Kennedy's concurring opinion in Seibert is the controlling opinion. In United States v. Carter,

489 F.3d 528 (2d Cir. 2007), decided after the district court issued its decision in the case at bar,

this Court stated: "We now join our sister circuits in holding that Seibert lays out an exception to

Elstad for cases in which a deliberate, two-step strategy was used by law enforcement to obtain

the postwarning confession." Id. at 536. Although the district court did not have the benefit of

guidance from this Court when it considered the question of which opinion from Seibert controls,

Carter has since definitively answered that question.

My colleagues do not dispute that, post-Carter, Justice Kennedy's concurring opinion in

Seibert clearly controls in this circuit (as well as most other circuits that have decided the issue2).

The majority writes: "Under Carter, we must address whether the officers employed a 'deliberate

two-step strategy, predicated upon violating Miranda during an extended interview,' and if so,

whether 'specific, curative steps' were taken to obviate the violation that occurred." Majority Op.

at 12 (quoting Seibert, 542 U.S. at 621 (Kennedy, J., concurring)).

Kennedy joined in the result reached by the plurality but rejected its Takings Clause analysis,
finding instead that the Coal Act violated substantive due process. Id. at 539-50. Unlike in
Eastern Enterprises, where the plurality opinion and the concurring opinion reached the same
result on entirely separate grounds, the concurring opinion in Seibert adopted the same
"effectiveness" test as the Seibert plurality, but held that the test should be applied to a narrower
subset of cases than the plurality would have held.
2
As the majority recognizes in its opinion, this view has been adopted by the Third, Fifth,
Eighth, Ninth and Eleventh Circuits. Majority Op. at 10. But see United States v. Heron, 564
F.3d 879, 884-85 (7th Cir. 2009) (concluding that the Marks rule is inapplicable to Seibert
because "Justice Kennedy's intent-based test was rejected by both the plurality decision and the
dissent").

33
 Having recognized that Justice Kennedy's concurring opinion in Seibert controls, this

case should be easily resolved based entirely on the district court's factual findings. Instead, the

majority goes astray by reviewing the district court's factual findings de novo,3 incorrectly

applying the applicable test on de novo review, and doing so in a way that undermines Justice

Kennedy's controlling Seibert opinion.

In Judge McKenna's thorough and well-reasoned opinion below, he stated that "[t]here is

no evidence . . . that Inspector Hoti had the specific intent to use the two-stage questioning

technique with the purpose of first obtaining unwarned incriminating statements in order, in a

subsequent warned interrogation, to obtain similar incriminating statements." United States v.

Capers, No. 06-CR-266, 2007 WL 959300, at *12 (S.D.N.Y. Mar. 29, 2007). Based on his

finding of a lack of intent, Judge McKenna concluded: "[I]f Justice Kennedy's Seibert

concurrence represented the law, suppression would be denied." Id. at *15 n.17. Under the test

established in Justice Kennedy's Seibert opinion, the above factual finding is sufficient to

determine that suppression should be denied, as the district court rightly noted.

The district court's factual findings made at a suppression hearing should not be

overturned unless they are found to be clearly erroneous. United States v. Ansaldi, 372 F.3d 118,

129 (2d Cir. 2004). "The trial court is in a unique position to evaluate witnesses' credibility,"

3
Although the majority does not explicitly state that it is applying a de novo standard of
review to the district court's factual findings, its analysis clearly demonstrates that it is doing so.
See Majority Op. at 17 ("Looking to the totality of the circumstances in the case before us, the
evidence proffered by the government to show that Capers was not the subject of a deliberate,
two-step interrogation is outweighed by subjective and objective evidence to the contrary."); see
also id. at 22 ("Objective evidence also leads us to conclude that the Government has failed to
meet its burden . . . .").

34
United States v. Davis, 967 F.2d 84, 86 (2d Cir. 1992), and is thereby better positioned than an

appellate court to make the necessary factual findings.

In this case, the district court considered the testimony from the interrogating officer –

Inspector Hoti – and determined that he testified credibly with regard to his reasons for not

giving defendant Miranda warnings prior to questioning him at the Bronx DMU when he said:

Again, the importance to me in understanding this facility, I did not want
to lose any of the evidence, I did not want to lose any of the evidence in the case.
Obviously the importance of it, to recover that evidence as quickly as I can.
Secondly, I have another individual that's – yes, he's cuffed outside of the office,
Mr. Lopez. If I could determine fairly quickly that, in fact, he had no role to play
in that crime, I need to take those cuffs off and basically cut him loose.

Capers, 2007 WL 959300, at *3 (quoting Tr. 35). The district court found that this

testimony supported a finding that Inspector Hoti did not deliberately utilize a two-step

interrogation technique, id. at *12, and further determined that the objective evidence in no way

contradicted his testimony, id. ("There is no evidence . . . that Inspector Hoti had the specific

intent to use the two-stage questioning technique with the purpose of first obtaining unwarned

incriminating statements in order, in a subsequent warned interrogation, to obtain similar

incriminating statements."). Based on all of the available evidence, the district court found that

Inspector Hoti did not deliberately utilize a two-step interrogation technique to circumvent

Miranda.

Even my colleagues in the majority are unwilling to say that this factual finding is clearly

erroneous.4 If the majority had reviewed the district court's decision (including its ultimate
4
Although the majority states that the "district court's [subsidiary] finding that there was
'no evidence' of a deliberate, two-step interrogation tactic at work was clear error," Majority Op.
at 20, it notably does not find that the district court's ultimate factual finding that Inspector Hoti
did not intend to use a two-step interrogation technique to circumvent Miranda was clear error.
Instead, it reviews the evidence in the record de novo and finds that "the government has not

35
conclusion that Inspector Hoti did not intentionally utilize a two-step interrogation technique)

using the proper "clearly erroneous" standard, then the outcome under Justice Kennedy's test

from Seibert would have been clear – suppression would have been denied because the

interrogator did not deliberately utilize a two-step interrogation technique to circumvent

Miranda.

But instead of reviewing the district court's factual findings for clear error, the majority

improperly chooses to review the court's factual findings de novo, replacing the district court's

credibility determinations with its own and re-weighing the evidence based on information

obtained entirely from the written record.

The majority justifies its reexamination of the district court's factual findings by claiming

that it is "constructing a method to determine deliberateness," Majority Op. at 13, namely,

establishing which party bears the burden of proving deliberateness, and what that burden is. But

even accepting that the majority's opinion clarifies aspects of a test that were previously unsettled

in this circuit, there is still no basis for ignoring the district court's thorough fact-finding on this

issue because the test articulated by the majority is the exact same test that was applied by the

district court.

The majority states: "[W]e join our sister circuits in concluding that a court should

review the totality of the objective and subjective evidence surrounding the interrogations in

order to determine deliberateness, with a recognition that in most instances the inquiry will rely

heavily, if not entirely, upon objective evidence." Majority Op. at 14-15. It goes on to state:

produced sufficient objective evidence to meet its burden." Id. at 24; see also supra note 3.

36
"[W]e hold that the burden rests on the prosecution to disprove deliberateness," id. at 15, and that

the burden is that of a preponderance of the evidence, id. at 16-17.

The test used by the district court to determine whether Inspector Hoti utilized a

deliberate two-step interrogation technique to circumvent Miranda is entirely consistent with

each of the above holdings by the majority. In its written opinion, the district court examined

"the totality of the circumstances" in making its factual determination regarding deliberateness,

considering both subjective and objective evidence that it found relevant to determining whether

Inspector Hoti deliberately utilized a two-step interrogation technique. Capers, 2007 WL

959300, at *11.5

Although the district court does not explicitly state in its opinion which side bears the

burden of proving deliberateness, there is no doubt that the district court required the government

to prove deliberateness by a preponderance of the evidence. At oral argument in the district

court, Judge McKenna asked the parties, "[A]m I correct in assuming that the general rule

applies, and that is, since this is a motion to suppress statements, that the government has the

burden of proof by a preponderance," (J.A. at 349), to which the attorney for the government

responded, "That's correct, your Honor." (J.A. at 350).6

5
Even though the district court found that the objective evidence did not support
defendant's contention that Inspector Hoti deliberately used a two-step interrogation technique, it
nonetheless considered all of the objective factors articulated by the Seibert plurality in reaching
that conclusion. See Capers, 2007 WL 959300, at *13-15. Therefore, the majority's claim that
the district court "ignored all the . . . relevant evidence" besides the testimony of the arresting
officers, Majority Op. at 21, is clearly contradicted by the district court's written opinion.
6
The district court also clearly applied this preponderance standard in its written opinion.
As stated above, the district court found that none of the evidence in the record contradicted
Inspector Hoti's testimony that he did not intend to use a two-step technique to circumvent
Miranda. See supra at 34-35.

37
 II

Even if de novo review of the district court's factual determination regarding

deliberateness were appropriate in this case, I would still be unable to agree with the majority's

finding that Inspector Hoti deliberately utilized a two-step interrogation technique to circumvent

Miranda.

The test used by the majority to determine whether Inspector Hoti deliberately utilized a

two-step interrogation technique effectively undermines the subjective test established by Justice

Kennedy in his concurring opinion in Seibert (and adopted by this Court in Carter) because it

ignores subjective evidence showing that the inspector did not deliberately utilize a two-step

technique, and instead relies exclusively on the objective factors listed in the non-controlling

Seibert plurality opinion.7 In reviewing the evidence of whether Inspector Hoti utilized a two-

step interrogation technique, the majority gives absolutely no weight to the inspector's testimony

that his reasons for not immediately advising Capers of his Miranda rights were to prevent the

loss or concealment of the currency and money orders that the Express Mail envelope contained

and to ascertain whether Lopez was involved in the crime so that he could be released if

necessary. Majority Op. at 17-19; see also Capers, 2007 WL 959300, at *12 & n.13 (citing Tr.

32 & 35).

7
The majority claims that its "analysis considers the subjective evidence adduced at the
suppression hearing . . . as instructive but not automatically dispositive," Majority Op. at 20, but
finds that, in this case, Inspector Hoti's testimony may be disregarded because it lacks credibility,
id. But even if the majority had found that Inspector Hoti's testimony was credible, the majority
would still have refused to consider the testimony because it deems Inspector Hoti's stated
reasons as being illegitimate. Id. at 17-18. Notwithstanding the majority's proclamations to the
contrary, it is clear that the "legitimacy" test adopted by the majority would make subjective
evidence irrelevant in almost every two-step interrogation inquiry. See infra at 39-41.

38
 Despite the fact that Judge McKenna – who witnessed Inspector Hoti's testimony and was

therefore better able to assess his credibility – found that the inspector's testimony was credible,

the majority chooses to give it no weight whatsoever because, according to the majority, Hoti did

not articulate a legitimate exception to Miranda. Notably, the majority states:

Neither of these reasons [given by Inspector Hoti] justifies delaying a Miranda
warning once it is obvious that a suspect is in custody. There is no exception to
Miranda that allows a delay in giving Miranda warnings in order to preserve
evanescent evidence. Neither is there an exception to Miranda that permits
delaying the warnings in order to ascertain whether a suspected co-conspirator
may be entitled to release.

Majority Op. at 17-18.

Even assuming the majority is correct in finding that Inspector Hoti's testimony did not

express "legitimate" reasons for not immediately advising Capers of his Miranda rights, that

conclusion would be of little import to the inquiry at hand – whether he deliberately utilized a

two-step interrogation technique. Under the test established in Justice Kennedy's concurring

opinion in Seibert, the operative question is not whether Inspector Hoti had a legitimate reason

for questioning Capers prior to warning him of his Miranda rights, but instead whether his reason

for doing so was to deliberately utilize a two-step interrogation procedure with the intended

purpose of undermining Miranda. In an opinion joined by retired Justice David Souter sitting by

designation, the First Circuit recognized as much and held that an interrogation for the purposes

of recovering evidence did not constitute a deliberate two-step strategy because the initial

interrogation was "aimed primarily at securing the [stolen] weapon" that the police were

searching for. United States v. Jackson, 608 F.3d 100, 104 (1st Cir. 2010) (Boudin, J.). In this

light, there is nothing suspicious about the reasons put forth by Inspector Hoti for why he did not

39
advise Capers of his Miranda rights prior to interrogating him. Both reasons, under the

circumstances, were quite credible.

By importing the tests establishing legitimate exceptions to Miranda into the factual test

for whether an interrogating officer deliberately utilized a two-step technique, the majority

completely undermines the subjective test that lies at the heart of Justice Kennedy's Seibert

opinion. The Elstad/Seibert line of cases is only relevant when statements made in response to

the initial questioning are excluded by Miranda. If district courts are now required to disregard

subjective testimony about an interrogator's reasons for not warning a suspect of his Miranda

rights whenever pre-warning statements would be excluded by Miranda, then courts considering

two-step interrogations will be forced to disregard whatever subjective evidence may exist.8

Under the majority's test, in almost all cases where a pre-warning confession is

suppressed due to a violation of the suspect's Miranda rights, a subsequent post-warning

confession will also be suppressed because the interrogating officer will be unable to articulate a

"legitimate" reason for not advising the suspect of his or her Miranda rights prior to the initial

interrogation. Under this approach, there would almost never be an occasion when Justice

Kennedy's approach would be applicable.9

8
The majority suggests that subjective evidence may rarely exist in cases involving two-
step interrogations. Majority Op. at 14-15 ("[I]n most instances the inquiry will rely heavily, if
not entirely, upon objective evidence."). But even if that were so, the potential scarcity of
subjective evidence provides no justification for ignoring relevant subjective evidence when it
does exist.
9
Although the majority's test could still find that a two-step technique was not
intentionally used when the pre-warning interrogation was performed by a different officer than
the post-warning interrogation, and the second officer was not aware of the initial interrogation,
see, e.g., Carter, 489 F.3d at 536, Justice Kennedy's concurring opinion makes clear that, even
when the same officer performs both the pre- and post-warning interrogations, a court may find
that the illegitimate pre-warning interrogation was not done for the purpose of utilizing a two-

40
 The inevitability of this result is made clear when the majority states that "[t]he only

legitimate reason to delay intentionally a Miranda warning until after a custodial interrogation

has begun is to protect the safety of the arresting officers or the public," Majority Op. at 18

(citing United States v. Newton, 369 F.3d 659, 677 (2d Cir. 2004)), because this exception could

never apply to two-step interrogation cases. The Elstad/Seibert inquiry only comes into play

when pre-warning statements are excluded by Miranda. In cases where the public safety

exception applies, even those pre-warning statements are admissible, making the entire

Elstad/Seibert inquiry unnecessary. If the public safety exception were the only "legitimate"

reason that an officer could give for failing to advise a suspect of his Miranda rights prior to

interrogating him – and thus the only reason that would allow a court to consider the officer's

testimony – then it would never be proper for courts to consider an interrogating officer's

testimony in two-step interrogation cases. This would entirely undermine the subjective test

established in Justice Kennedy's Seibert opinion.

Moreover, even if the legitimacy of an interrogating officer's actions were an appropriate

consideration for determining whether the officer intentionally used a two-step technique to

undermine Miranda, there is nothing illegitimate about the reasons put forth by Inspector Hoti.

All of the evidence sought by Inspector Hoti is beyond the scope of the Miranda protection.

Although Capers' pre-warning statements would not have been admissible against him in a

step technique to circumvent Miranda. Seibert, 542 U.S. at 620 (Kennedy, J., concurring) ("[I]t
would be extravagant to treat the presence of one statement that cannot be admitted under
Miranda as sufficient reason to prohibit subsequent statements preceded by a proper warning.").
Elstad is an example of such a case – the pre-warning interrogation was performed by an officer
who also participated in the post-warning confession. See Elstad, 470 U.S. at 301-02. Yet
Justice Kennedy found that the Court's decision not to exclude the post-warning statements in
Elstad "was correct in its reasoning and its result." Seibert, 542 U.S. at 620 (Kennedy, J.,
concurring).

41
criminal proceeding, Inspector Hoti testified that he was not interrogating Capers in order to

procure a confession. Instead, he was seeking physical evidence (the currency and money orders)

and information about Capers' co-conspirator, Lopez. An interrogating officer's failure to advise

a suspect of his Miranda rights does not require suppression of the physical fruits of the suspect’s

unwarned statements. See United States v. Patane, 542 U.S. 630 (2004) (holding that physical

evidence obtained as a result of unwarned statements is not excluded by Miranda); United States

v. Morales, 788 F.2d 883, 886 (2d Cir. 1986) ("The Miranda presumption of coercion has not

barred the use of unwarned, voluntary statements . . . to locate non-testimonial evidence . . . .").

And Miranda, which protects a suspect's Fifth Amendment right against self-incrimination, does

not protect suspects from making statements that incriminate other individuals. As such, there

was nothing per se illegitimate about asking Capers whether Lopez was involved in the criminal

activity or attempting to determine the location of physical evidence.

III

In addition to improperly finding that Inspector Hoti's proffered reasons for delaying the

Miranda warning should not be considered because they lack legitimacy, the majority also finds

that those reasons lack credibility when considered in light of the objective evidence. Majority

Op. at 19-20. Although this finding appears to be entirely superfluous to the outcome of this

appeal based on the majority's novel "legitimacy" test, see supra note 7, to the extent it is at all

relevant to result the majority reaches, it is an improper application of the clearly erroneous

standard.

42
 While a district court's findings of fact may be overturned if this Court determines that

they are clearly erroneous, this Court is not entitled to overturn a district court's assessment of the

credibility of a witness – an assessment which is the "providence of the district court." United

States v. Maldonado-Rivera, 922 F.2d 934, 972 (2d Cir. 1990); cf. United States v. Raddatz, 447

U.S. 667, 681 n.7 (1980) ("[I]t is unlikely that a district judge would reject a magistrate's

proposed findings on credibility when those findings are dispositive and substitute the judge's

own appraisal; to do so without seeing and hearing the witness or witnesses whose credibility is

in question could well give rise to serious questions . . . ."). Furthermore, "[w]here there are two

permissible views of the evidence, the court's choice between them cannot be deemed clearly

erroneous." Maldonado-Rivera, 922 F.2d at 972 (citing Anderson v. City of Bessemer City, N.C.,

470 U.S. 564, 574 (1985)). These rules are not merely based on the belief that the district court

is better positioned to make determinations of credibility (as well as more experienced at making

such determinations), but also on prudential concerns that "[d]uplication of the trial judge's

efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact

determination at a huge cost in diversion of judicial resources." Anderson, 470 U.S. at 574-75.

The majority disregards the above limits on the role of an appellate court, choosing

instead to reject the credibility determinations made by the district court that it considers

"dubious." While such a review of the district court's credibility determinations in never

appropriate, it is particularly problematic in this case where there is nothing in Inspector Hoti's

testimony that is either contradicted by the record evidence or inherently unbelievable. As such,

the reasons given by the majority are insufficient to satisfy the clearly erroneous standard, which

43
requires this Court to have a "firm conviction that a mistake has been committed." United States

v. Iodice, 525 F.3d 179, 185 (2d Cir. 2008).

With regard to Inspector Hoti's claim that he had to determine whether Lopez was

involved in the scheme, and if he was not, release him, the majority states that it is dubious that

Inspector Hoti would have simply released Lopez had Capers said that Lopez had nothing to do

with the theft. Majority Op. at 19. But nothing in Inspector Hoti's testimony suggests that he

would have taken Capers' statements at face value and released Lopez based entirely on those

statements. Instead, Inspector Hoti's testimony demonstrates that he knew very little about Lopez

when he took him into custody. Although Capers was a suspect prior to the day of his arrest,

Inspector Hoti had never seen Lopez and knew nothing about him prior to that day. (J.A. 62-63.)

And although Inspector Hoti certainly had probable cause to believe that Lopez was involved in

the incident based on evidence acquired the day of the arrest, that evidence consisted entirely of a

glance from Lopez towards the bulk mail carrier ("BMC") containing the Express Mail envelopes

and Lopez's presence in the truck with Capers when the alarm went off. (J.A. 62, 64-65.) It

would have been perfectly rational for Inspector Hoti to want to confirm his suspicion that Lopez

was involved in the theft, especially if it was true that Inspector Hoti knew absolutely nothing

about Lopez prior to observing him on the day of the incident.

With regard to Inspector Hoti's claim that he did not want to lose the money orders, the

majority finds that this claim is "belied by the testimony of the arresting officers that Capers and

Lopez were detained almost directly after the envelope alarm sounded and were found either still

in the storage container, or in that immediate vicinity." Majority Op. at 20. But the majority fails

to explain how those facts are sufficient to leave this Court with "the firm conviction" that

44
Inspector Hoti did not actually fear losing the money orders.10 When the alarm went off, both

Capers and Lopez were out of Inspector Hoti's line of sight, hidden behind a large BMC in the

back of a mail transportation truck. (J.A. 64-65.) Inspector Hoti then had to slide down a ladder,

exit the lookout where he had been observing Capers, and run around the building to the area

where Capers and Lopez were loading the truck before he could apprehend Capers and Lopez.

(J.A. 67.) After Inspectors Hoti and Chow handcuffed Capers and Lopez, the inspectors entered

the back of the truck where they were able to find the Express Mail envelopes, but not the money

orders. (J.A. 67-68.) At that point, Inspector Hoti took Capers to the supervisor's office so that

he could ensure that Capers was not able to hide the money orders – which were both evidence

and the equivalent of cash – somewhere in the facility. Given the circumstances, it would have

been entirely rational for Inspector Hoti to segregate Capers in the supervisor's office and attempt

to retrieve the money orders as soon as possible.11

Because Inspector Hoti's testimony is entirely plausible (and certainly not so implausible

as to raise a "firm conviction that a mistake has been committed"), it was not clear error for the

district court to find that the government met its burden of proving by a preponderance of the

evidence that Inspector Hoti did not deliberately utilize a two-step interrogation technique to

10
Even if Inspector Hoti's fear of losing the money orders was irrational, a finding that he
did, in fact, hold that irrational belief would still be sufficient to show that he did not intend to
utilize a two-step interrogation technique.
11
It should be noted that Inspector Hoti could have retrieved the money orders simply by
performing a search incident to arrest, and such a search would not have run afoul of any of
Capers' constitutional rights. Nonetheless, this would not have resolved the issue of Lopez's
involvement.

45
circumvent Miranda. Accordingly, Capers' voluntary post-warning statements should not be

excluded, and the district court's decision to exclude the statements should be reversed.12

For the foregoing reasons, I respectfully dissent.

12
Because Inspector Hoti did not deliberately utilize a two-step interrogation technique, it
is unnecessary to decide whether "curative measures [were] taken before the postwarning
statements [were] made." Seibert, 542 U.S. at 622 (Kennedy, J., concurring).

46