United States v. Moore, No. 10-2740 (2d Cir. 2012)
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Defendant appealed from a judgment entered in the district court on a plea of possession of a firearm by a felon. After defendant's arrest, defendant inculpated himself when he was questioned by police before he received Miranda warnings and again later, after he was warned. Defendant contended that the subsequent confession must be suppressed because it was obtained through a two-part interrogation technique outlawed as a violation of the Fifth Amendment in Missouri v. Seibert. The court concluded that the subsequent confession was given voluntarily and without coercion, and was not elicited by the proscribed two-step technique. The court also concluded that the confession did not offend the Sixth Amendment because defendant's right to counsel had not yet attached, particularly with regard to the federal offense for which he was prosecuted. Accordingly, the judgment was affirmed.
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10-2740-cr United States v. Moore 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011 (Argued: November 17, 2011 Decided: February 22, 2012) Docket No. 10-2740-cr - - - - - - - - - - - - - - - - - - - -x United States, Appellee, - v.Chauncey Moore, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, CABRANES and LIVINGSTON, Circuit Judges. Chauncey Moore appeals from a judgment entered in the 31 United States District Court for the District of Connecticut 32 (Chatigny, J.) on a plea of possession of a firearm by a 33 felon. 34 the district court s decision on his motion to suppress. 35 After his arrest, Moore inculpated himself when he was 36 questioned by police before he received Miranda warnings and 37 again later, after he was warned. The plea was conditioned on the ability to appeal Moore contends that the 1 subsequent confession must be suppressed because it was 2 obtained through a two-part interrogation technique outlawed 3 as a violation of the Fifth Amendment in Missouri v. 4 Seibert, 542 U.S. 600 (2004). 5 The district court declined to suppress the subsequent 6 confession, and Moore appeals from that ruling. 7 that the subsequent confession was given voluntarily and 8 without coercion, and was not elicited by the proscribed 9 two-step technique. 10 We conclude Moore also contends that the second interview violated 11 his Sixth Amendment right to counsel. 12 confession did not offend the Sixth Amendment because his 13 right to counsel had not yet attached, particularly with 14 regard to the federal offense for which he was prosecuted 15 below. 16 17 18 19 20 21 22 23 24 25 26 27 28 We conclude that the Affirmed. Jeremiah Donovan, Old Saybrook, CT, for Appellant. Sandra S. Glover, Assistant United States Attorney (Robert M. Spector, Assistant United States Attorney, on the brief), District of Connecticut, for David B. Fein, United States Attorney, District of Connecticut for Appellee. 2 1 2 3 DENNIS JACOBS, Chief Judge: 4 United States District Court for the District of Connecticut 5 (Chatigny, J.) on a plea of possession of a firearm by a 6 felon. 7 district court s decision denying (in relevant part) his 8 motion to suppress. 9 Chauncey Moore appeals from a judgment entered in the The plea was conditioned on his appeal of the While fleeing arrest on a warrant, Moore tossed a gun 10 away. 11 his arrest but before he received Miranda warnings, he told 12 a law-enforcement officer where he had tossed the gun. 13 few hours later he confessed to other officers after the 14 warnings were administered. 15 confessed because of a two-part interrogation technique 16 outlawed as a violation of the Fifth Amendment in Missouri 17 v. Seibert, 542 U.S. 600 (2004). During an exchange in the police station lockup after A Moore contends that he 18 The district court suppressed the statement made in 19 lockup -- a ruling from which the Government takes no appeal 20 -- but declined to suppress the confession. 21 this appeal from that ruling. 22 confession was given voluntarily, without coercion, and 23 without violation of Seibert. Moore takes We conclude that the 3 1 Moore also contends that the second interview violated 2 his Sixth Amendment right to counsel because his right to 3 counsel had attached prior to being questioned. 4 that the confession did not offend the Sixth Amendment 5 because the right to counsel had not attached, in particular 6 with regard to the federal offense for which he was 7 prosecuted below. 8 We conclude Affirmed. 9 10 BACKGROUND 11 On the afternoon of September 23, 2002, a Connecticut 12 Superior Court judge issued an arrest warrant for Chauncey 13 Moore on charges that arose from a carjacking and attempted 14 armed robbery in which shots were fired. 15 night, Officer Mark R. Suda spotted Moore walking down the 16 street in Norwalk, and gave chase. 17 him, Moore tossed a handgun onto the roof of a house. 18 searched the path of Moore s flight after giving up the 19 chase, but found nothing. 20 After 11 p.m. that After Suda lost sight of Suda Moore was apprehended the following morning, around 21 6:15 a.m., and placed in the lockup. 22 did not question him and did not administer Miranda 23 warnings. 4 The arresting officers 1 At 8:30 a.m., Detectives Arthur Weisgerber and Michael 2 Murray were sent to the lockup to interview Moore, who was 3 asleep. 4 did not know why he had been arrested and went back to 5 sleep. 6 They tried to awaken him, but Moore told them he The detectives left. Officer William Zavodjancik was in charge of the lockup 7 that day. Generally, arrestees placed in the lockup by 7:00 8 a.m. on a weekday (like Moore) would be processed and taken 9 to the court the same morning. At 9:15 a.m., Zavodjancik 10 took several arrestees to court for arraignment, but Moore 11 was not among them because Zavodjancik lacked the 12 information necessary to process him prior to 13 arraignment.1 14 before [it], . . . [that] Officer Zavodjancik engaged in no 15 deliberate wrongdoing as alleged by [Moore]. 16 WL 708789, at *2. 17 finding.2) The district court concluded [o]n the record Moore, 2007 (Moore does not challenge this factual 1 In order to process an arrestee, the precinct would, inter alia, generate a computerized report containing . . . [a] statement of the pending charges. United States v. Moore, No. 3:03-CR-178 (RNC), 2007 WL 708789, *2 (D. Conn. Feb. 20, 2007). 2 When Zavodjancik returned to the lockup at about 10:00 a.m., he found a file on his desk containing the information he needed to process Moore. The file had not been there before. Zavodjancik then processed Moore, although he made no attempt to take him to court then or 5 1 Just after noon, during one of Zavodjancik s routine 2 checks on prisoners in the lockup, Moore asked to speak with 3 a detective. 4 detectives bureau, and left a message. 5 check, Moore asked again to speak with a detective; 6 Zavodjancik called again and left another message. 7 Zavodjancik could not reach anyone in the During the next Around 2 p.m., Moore asked to use a pay phone and was 8 moved to a cell with a phone. 9 still in that cell, Moore spotted a Norwalk narcotics Half an hour later, while 10 officer he knew (Sergeant Ronald Pine), and called him over. 11 Pine was not involved in Moore s case and did not know that 12 Moore was in the lockup until he heard Moore call his name. 13 All Pine knew about Moore s arrest was that there had been 14 an incident in which shots were fired and that the gun had 15 not yet been recovered. 16 17 When Moore called to him, Pine came over and asked What s up? Moore asked Pine to help him get released on a later that day. Accordingly, Moore was not arraigned until the next day. Moore contended below that Zavodjancik purposefully failed to have him arraigned in violation of the directive in the arrest warrant that Moore was to be brought to court without undue delay. Moore, 2007 WL 708789, at *2 (quotation marks omitted). The district court found no evidence that anyone asked Zavodjancik to refrain from taking Moore to court, nor any evidence suggesting that Zavodjancik would engage in such a subterfuge. Id. 6 1 promise to appear, as Pine had done once before (on a 2 larceny charge). 3 pending charges involved discharge of a firearm. 4 Pine said he could not help because the Pine then asked Moore if he could tell him where the 5 gun was, and Moore said he was reluctant to answer because 6 he did not want to face a federal gun charge. 7 to put in a good word for him with the state s attorney. 8 During this brief exchange, Pine saw Agent Ron Campanell of 9 the Federal Bureau of Alcohol, Tobacco, Firearms, and Pine offered 10 Explosives (who was there on an unrelated matter), and asked 11 him to join them. 12 Campanell after Moore helped them find the gun. 13 Pine told Moore that he could talk to Moore agreed, told them where he had tossed the gun, 14 and drew a map. 15 South Main Street where, from the rear of the property, they 16 could see the gun on the roof of the house. 17 Weisgerber and Murray arrived and photographed the scene 18 before retrieving the gun. 19 detectives that Moore wanted to talk to them. 20 Map in hand, Pine and Campanell drove to 75 Detectives Pine then informed the Just after 4:00 p.m. -- about one hour and 35 minutes 21 after Pine and Moore began talking -- the detectives arrived 22 at Moore s cell. 23 talk about the pending charges. 24 interview room, where they were joined by Campanell. Moore told them that he was willing to 7 They moved him to a nearby 1 The detectives told Moore that he was in serious 2 trouble; but before they began asking questions, they handed 3 him an advice of rights and waiver form. 4 Moore had decided it was in his best interest to cooperate. 5 He read the form aloud, initialed each paragraph, and signed 6 on the bottom. 7 By this point, Over the next 45 minutes, the detectives asked him 8 where he got the gun; who else in Norwalk possessed a gun; 9 whether he had information about several cold homicide 10 cases; and what he knew about the carjacking and attempted 11 robbery for which he had been arrested. 12 answers to the first two inquiries. 13 role in the carjacking and attempted robbery, but refused to 14 provide a written statement without speaking to counsel. 15 The detectives ended the interview. 16 Moore gave evasive He did disclose his The following day (September 25, 2002), Moore was 17 arraigned on the state charges. 18 Attorney obtained an indictment against Moore on the federal 19 charge of being a felon in possession of a firearm. 20 U.S.C. § 922(g). 21 22 Later, the United States See 18 In the federal criminal case, Moore moved to suppress his statements to investigators (and the gun) on the grounds 8 1 that he was not advised of his Miranda warnings and that his 2 questioning violated his Sixth Amendment right to counsel, 3 which he argues attached when the state prosecutor filed an 4 information along with the application for an arrest 5 warrant. 6 unwarned statement Moore provided to Pine and Campanell 7 while in the lockup. 8 the gun as a fruit of the unwarned statement, however, 9 because the gun was physical evidence obtained from a The district court suppressed the initial, The district court did not suppress 10 voluntary statement. 11 (citing United States v. Patane, 542 U.S. 630 (2004)). 12 district court also denied the motion to suppress the later, 13 warned statement. 14 Moore, 2007 WL 708789, at *5 n.5 The Moore subsequently entered a conditional guilty plea 15 that permitted him to take this appeal. Moore was sentenced 16 principally to 110 months incarceration and three years of 17 supervised release. 18 19 DISCUSSION 20 When reviewing a district court s decision in the 21 government s favor on a motion to suppress, this Court 22 examine[s] the record in the light most favorable to the 9 1 government. United States v. Rommy, 506 F.3d 108, 131 (2d 2 Cir. 2007). 3 regarding the constitutionality of a Miranda waiver de 4 novo, and its factual findings for clear error. 5 States v. Carter, 489 F.3d 528, 534 (2d Cir. 2007). We review a district court s determination United 6 7 I. 8 A. 9 The district court suppressed Moore s initial, unwarned 10 statement as obtained in violation of his Fifth Amendment 11 rights under Miranda v. Arizona, 384 U.S. 436 (1966), but 12 did not suppress Moore s post-warning statement. 13 the government does not appeal the suppression of Moore s 14 initial statement, the only issue before us is whether the 15 district court erred in not suppressing Moore s subsequent 16 confession, provided after he was Mirandized. 17 Because Moore argues that police improperly engaged in a 18 deliberate two-step interrogation technique designed to 19 subvert his Fifth Amendment rights by getting him to 20 incriminate himself before being advised of his rights, then 21 reading him his rights and getting him to incriminate 22 himself again while still disarmed by the original 10 1 incrimination. 2 both the initial, unwarned statement and the later, post- 3 warning statement must be suppressed. 4 Under these circumstances, Moore argues, The Supreme Court has twice considered whether a post- 5 warning inculpatory statement must be suppressed if the 6 defendant was previously interrogated without being warned. 7 First, in Oregon v. Elstad, 470 U.S. 298 (1985), police 8 executed a warrant for the arrest of the 18-year old Elstad 9 on a burglary charge. Id. at 300. At his house, Elstad s 10 mother allowed the police to go upstairs, where they 11 arrested her son. 12 the home, they took his mother aside to explain the 13 situation. 14 questioned Elstad without advising him of his Miranda 15 rights, and Elstad implicated himself. 16 at the police station, Elstad was Mirandized and 17 interrogated, and gave a complete confession. 18 02. 19 on the ground that the initial statement let the cat out of 20 the bag and tainted his subsequent confession. 21 303-04 (internal quotation marks omitted). Id. As the police were removing him from Id. at 300-01. In that interval, an officer Id. at 301. Later, Id. at 301- Elstad argued for suppression of the warned confession 22 11 Id. at 1 Though Miranda requires that the unwarned admission 2 must be suppressed, the Supreme Court ruled that the 3 admissibility of any subsequent statement should turn in 4 these circumstances solely on whether it is knowingly and 5 voluntarily made. 6 administration of Miranda warnings to a suspect who has 7 given a voluntary but unwarned statement ordinarily should 8 suffice to remove the conditions that precluded admission of 9 the earlier statement, because the finder of fact may 10 reasonably conclude that the suspect made a rational and 11 intelligent choice whether to waive or invoke his rights. 12 Id. at 314. 13 effect where the suspect s initial inculpatory statement, 14 though technically in violation of Miranda, was voluntary. 15 Id. at 318. 16 [post-warning] statement was . . . voluntarily made. 17 Id. at 309. The subsequent [T]here is no warrant for presuming coercive The relevant inquiry is whether the second Id. Elstad involved an accidental or mistaken interrogation 18 in violation of Miranda. 19 (explaining that the police did not use deliberately 20 coercive or improper tactics to obtain the initial, 21 unwarned statement). 22 (2004), the Court considered a deliberate effort to See Elstad, 470 U.S. at 314 In Missouri v. Seibert, 542 U.S. 600 12 1 circumvent Miranda. 2 woman suspected of arson. 3 police intentionally refrained from advise her of her 4 rights, and elicited all the information they needed. 5 then warned her, and again interrogated her using the first 6 statements against her to obtain a post-warning confession. 7 Id. at 604-06. 8 violated the suspect s Fifth Amendment rights even with 9 regard to the statement given post-warning. 10 In Seibert, the police interrogated a In the first interview, the They Five justices found that this tactic The justices split as to the proper test. The 11 plurality (Souter, Stevens, Ginsburg, and Breyer, JJ.) 12 concluded that the warning administered prior to the second 13 statement was ineffective, id. at 611-12, distinguishing 14 Elstad on that basis. 15 to be relevant to that inquiry: (1) the completeness and 16 detail of the questions and answers in the first round of 17 interrogation, (2) the overlapping content of the two 18 statements, (3) the timing and setting of the first and 19 second interrogations, (4) the continuity of police 20 personnel doing the questioning, and (5) the degree to 21 which the interrogator s questions treated the second round 22 as continuous with the first. Id. at 615. 13 Id. Five factors were said The warning was deemed 1 ineffective because: the original questioning was 2 systematic, exhaustive, and managed with psychological 3 skill ; there was little, if anything, of incriminating 4 potential left unsaid ; the two interrogations took place 5 only 15 or 20 minutes apart, in the same place, and with 6 the same officer ; nothing was said to dispel the 7 impression that the first statement could be used against 8 the suspect; and it reasonably appeared to the suspect that 9 the further questioning was a mere continuation of the 10 11 earlier questions and responses. Id. at 616. Justice Kennedy s concurrence disagreed with the 12 plurality s reasoning. 13 difference between Elstad and Seibert was that Seibert 14 involved a deliberate, two-step strategy, predicated upon 15 violating Miranda. 16 It was decisive for Justice Kennedy that the two-step 17 process was arranged by the police deliberately as a 18 calculated way to undermine the Miranda warning -- 19 something that is only likely to occur in the infrequent 20 case. 21 is a deliberate two-step, the postwarning statements that 22 are related to the substance of prewarning statements must Id. at 622. In Justice Kennedy s view, the real Id. at 621 (Kennedy, J., concurring). So, in Justice Kennedy s view, if there 14 1 be excluded unless curative measures are taken before the 2 postwarning statement is made. 3 measures are those designed to ensure that a reasonable 4 person in the suspect s situation would understand the 5 import and effect of the Miranda warning and of the Miranda 6 waiver. 7 substantial break in time and circumstances between the 8 prewarning statement and the Miranda warning or an 9 additional warning that explains the likely inadmissibility 10 11 Id. Id. Such curative Such curative measures could include a of the prewarning custodial statement. Id. This Court first addressed the issue of a two-step 12 interrogation in United States v. Carter, where we 13 implicitly found controlling Justice Kennedy s concurrence 14 in Seibert and join[ed] our sister circuits in holding that 15 Seibert lays out an exception to Elstad for cases in which a 16 deliberate, two-step strategy was used by law enforcement to 17 obtain the postwarning confession. 18 Carter, 489 F.3d 528, 536 (2d Cir. 2007). 19 officers executing a search warrant smelled crack cocaine 20 and discovered a bag containing crack and powder cocaine as 21 well as a brown substance they believed to be heroin. 22 suspect (Bearam), unwarned, said that the substance was bad 15 United States v. In Carter, The 1 co[caine]. 2 after being Mirandized, and admitted that he sold drugs and 3 had received the bag of drugs discovered by the authorities. 4 Id. 5 Id. at 533. Bearam was interrogated again The facts in Carter did not amount to a proscribed two- 6 step strategy because (1) there was almost no overlap 7 between th[e] statement and the full confession [Bearam] 8 gave after he received the warnings, (2) over an hour had 9 passed between the two statements, (3) the investigators 10 were not the same in the first and second interviews, (4) 11 the investigators in the second interview did not know about 12 Bearam s original statement, and (5), unlike in Seibert 13 where the second round of interrogation was essentially a 14 cross-examination using information gained during the first 15 round of interrogation, in Carter the postwarning 16 questioning was not a continuation of the prewarning 17 questioning. 18 step we applied the principle of Justice Kennedy s Seibert 19 concurrence and concluded that Bearam waived his rights: his 20 initial, prewarning statement was voluntary ; the 21 questioning not coercive ; and the later, post-warning 22 statement was, therefore, admissible. Id. Finally, having found no deliberate two- 16 Id. at 537. 1 We considered this issue again in United States v. 2 Capers, 627 F.3d 470 (2d Cir. 2010). 3 sting operation stealing money from Express Mail envelopes. 4 Id. at 472-73. 5 arrested and separated, Capers was questioned by a postal 6 inspector without being warned, and incriminated himself. 7 Id. 8 advised of his rights, he was again interviewed by the same 9 postal inspector, and again incriminated himself. Capers was caught in a After Capers and another man (Lopez) were After Capers was transported to another facility and 10 473. 11 statements. Id. at We affirmed the suppression of both sets of Id. at 474, 485. 12 In affirming the suppression, we decided several 13 questions left open by Seibert and Carter, that will bear 14 upon our analysis here. 15 implicit in Carter: Justice Kennedy s concurrence in Seibert 16 is controlling. 17 Justice Kennedy wrote of a deliberate two-step scheme, his 18 concurrence did not explain how a court is to determine 19 whether such a strategy has been employed. 20 our sister circuits in concluding that a court should review 21 the totality of the objective and subjective evidence 22 surrounding the interrogations in order to determine First, we made explicit what was Capers, 627 at 476. 17 Second, although So, we join[ed] 1 deliberateness . . . . 2 the prosecution bears the burden of disproving by a 3 preponderance of the evidence that the government employed a 4 deliberate two-step strategy to deprive the defendant of the 5 protections afforded by the Fifth Amendment. 6 Id. at 479. Third, we held that Id. at 479-80. Finally, we advised a somewhat closer scrutiny of an 7 investigator s testimony of subjective intent when the 8 proffered rationale is not a legitimate reason to delay or 9 where it inherently lacks credibility in view of the 10 totality of the circumstances. Capers, 627 F.3d at 484 11 n.5. 12 reason for delay is legitimate, such as officer or community 13 safety or when delay is a product of a rookie mistake, 14 miscommunication, or a momentary lapse in judgment. 15 Moreover, if it is found, after weighing the investigator s 16 credibility, that the investigator s intent was not 17 calculated . . . to undermine Miranda, delay will not 18 require exclusion of the later, warned statement even if the 19 court finds that the delay was for an illegitimate reason 20 and even in the absence of curative measures. Such scrutiny is not ordinarily required when the 21 22 18 Id. Id. at 482. 1 2 B. These authorities can be applied using a 3 straightforward analysis. First, was the initial statement, 4 though voluntary, obtained in violation of the defendant s 5 Miranda rights? 6 See United States v. Courtney, 463 F.3d 333, 336 (5th Cir. 7 2006). 8 of the defendant s Miranda rights, has the government 9 demonstrated by a preponderance of the evidence, and in If not, there is no need to go further. If the initial statement was obtained in violation 10 light of the totality of the objective and subjective 11 evidence, that it did not engage in a deliberate two-step 12 process calculated to undermine the defendant s Miranda 13 rights? 14 admissible so long as it, too, was voluntary; if not, the 15 post-warning statement must be suppressed unless curative 16 measures (designed to ensure that a reasonable person in the 17 defendant s position would understand the import and effect 18 of the Miranda warnings and waiver) were taken before the 19 defendant s post-warning statement. If so, the defendant s post-warning statement is 20 21 22 19 1 C. 2 The district court concluded that Moore s initial 3 statement was obtained in violation of his Miranda rights. 4 The government does not appeal that decision; so we proceed 5 on that assumption. 6 In considering whether the government has demonstrated 7 that it did not engage in a deliberate two-step process 8 designed to thwart Moore s Miranda rights, we review the 9 totality of the objective and subjective evidence 10 surrounding the interrogations, Capers, 627 F.3d at 479, 11 guided by -- but not limited to -- the factors identified by 12 the plurality in Seibert, see Capers, 627 F.3d at 483-84 13 (applying plurality s factors); see also Seibert, 542 U.S. 14 at 615 (identifying factors). 15 factors were developed by the plurality to gauge whether the 16 later Miranda warnings could be effective enough to 17 accomplish their object, Seibert, 542 U.S. at 515, they 18 likewise will often serve as helpful indicia for whether an 19 alleged two-step interrogation was intended to circumvent 20 Miranda, see, e.g., Capers, 627 F.3d at 483-84; Carter, 489 21 F.3d at 536. 22 not to weigh the effectiveness of the later Miranda Although the five Seibert We therefore use the plurality s five factors 20 1 warnings, but to shed light on the detectives intent.3 2 A review of the evidence leads us to conclude that the 3 government did not engage in a deliberate two-step strategy 4 to deprive Moore of his Miranda rights. 5 subjective evidence of intent here -- no testimony, for 6 example, by any officer of an intent to use a two-step 7 technique, nor any evidence that such intent was reflected 8 in a police report. 9 (categorizing the interrogating officer s testimony as There is no See, e.g., Capers, 627 F.3d at 479 10 subjective evidence); cf. Ryan Iron Works, Inc. v. NLRB, 257 11 F.3d 1, 9 (1st Cir. 2001) (observing that subjective 12 criteria includes a party s own characterization of [its] 13 motive ) (internal quotation marks omitted). 14 any objective evidence that such a technique was used. 15 Moore, 2007 WL 708789, at *2 (finding no evidence that the 16 government intentionally delayed bringing Moore to court or 17 engaged in any such subterfuge or deliberate wrongdoing in 18 order to obtain a confession). 3 Nor is there The five Seibert factors consulted in this particular case are by no means the only factors to be considered. . . . [Instead,] a court should review the totality of the objective and subjective evidence surrounding the interrogations in order to determine deliberateness. See Capers, 627 F.3d at 479. Subjective evidence of the investigators intent, if credible, will of course be persuasive, and often decisive. 21 1 Moreover, a discarded gun obviously poses public safety 2 considerations. 3 public safety exception4 did not, as a matter of law, excuse 4 the failure to give Miranda warnings at the initial 5 interview, see Moore, 2007 WL 708789, at *5 -- a ruling we 6 do not consider, much less adopt, inasmuch as it was 7 unchallenged by the government on appeal. 8 undoubted public safety considerations plausibly account for 9 the conduct of the police in a way that militates against True, the district court ruled that the Nevertheless, 10 finding that the first interview was a premeditated attempt 11 to evade Miranda. 12 id. at 492-94 (Trager, J., dissenting); cf. United States v. 13 Hernandez-Hernandez, 384 F.3d 562, 566 (8th Cir. 2004) 14 (finding that the failure of the officer to read the 15 defendant his rights does not seem to have been an 16 intentional withholding that was part of a larger nefarious 17 plot. (quoting Reinert v. Larkins, 379 F.3d 76, 91 (3d 18 Cir. 2004))).5 See generally Capers, 627 F.3d at 481; 4 See, e.g., New York v. Quarles, 467 U.S. 649, 659 (1984). 5 The District Court s holding rested on a lack of exigent circumstances, not on any adverse credibility finding regarding the testimony of Sergeant Pine. Moore, 2007 WL 708789, at *2 3, *5; see Capers, 627 F.3d at 481, 484 n.5. Although Pine s stated public safety rationale was 22 1 The objective evidence -- including the narrowness of 2 overlap between the subjects of the two interrogations, the 3 participation of different officers, and the elapse of 90 4 minutes between the interrogations -- decidedly points 5 against concluding that the government engaged in a 6 deliberate two-step process designed to undermine Moore s 7 Fifth Amendment rights. 8 1. Thoroughness of the first interrogation. 9 factor considers the completeness and detail of the The first 10 questions and answers in the first round of interrogation. 11 Seibert, 542 U.S. at 615. 12 the initial questioning was systematic, exhaustive, . . . 13 managed with psychological skill, and left little, if 14 anything, of incriminating potential . . . unsaid, id. at 15 616 -- here the initial questioning was brief and spare. 16 Sergeant Pine s questioning of Moore in the lockup was 17 limited to the location of the gun because, as the As opposed to Seibert -- where insufficient to render Moore s first statement admissible under the public safety exception to Miranda, it was sufficient, in light of the totality of the circumstances, Capers, 627 F.3d at 484 n.5, to show that Pine did not intend to circumvent Miranda with this unwarned questioning. Under Capers, therefore -- even in the absence of one of the recognized legitimate reasons for delaying Miranda warnings, id. -- Pine s rationale does not bar admission of the second warned, statement, regardless of whether curative measures were undertaken. 23 1 government argued, Pine was worried about the danger to the 2 public of someone finding a (potentially loaded) weapon. 3 Pine asked no questions about Moore s involvement in the 4 attempted robbery or carjacking, about who else was involved 5 in either of those incidents, or about how Moore obtained 6 the gun. 7 See United States v. Verdugo, 617 F.3d 565, 575 (1st Cir. 8 2010) (finding it significant that the defendant was asked 9 only a limited number of questions before he was read his 10 11 Pine s sole and limited focus was finding the gun. Miranda rights ). 2. Overlap. The second factor -- the overlapping 12 content of the two statements, Seibert, 542 U.S. at 615 -- 13 also favors the government. 14 536 F.3d 714, 722 (7th Cir. 2008) ( [T]he lack of overlap 15 between the warned and unwarned statements is evidence that 16 the interrogator did not deliberately use a two-step 17 strategy designed to circumvent Miranda. ). 18 initial questioning focused exclusively on the location of 19 the gun, the second questioning was broad and systematic: it 20 focused on the attempted robbery and carjacking, where Moore 21 got the gun, who else in town had guns, and whether Moore 22 had any information about cold homicide cases. See United States v. Stewart, 24 Whereas the The two 1 rounds of questioning did not appreciably overlap. 2 Carter, 489 F.3d at 536 (finding almost no overlap between 3 the initial questioning involving the contents of a baggie 4 found during the search and the defendant s later full 5 confession); see also United States v. Jackson, 608 F.3d 6 100, 104 (1st Cir. 2010) (finding significant that the 7 initial questioning was aimed primarily at securing the 8 weapon ). 9 3. Timing and setting. See The circumstances of the 10 interrogations likewise favor the government. 11 rounds of questioning took place within the police station, 12 the first began when Moore initiated a conversation with 13 Pine after he saw Pine walking through the station and 14 called him over to speak with him. 15 knew Pine, who had previously helped Moore get released on a 16 promise to appear, and wanted to ask Pine to help him again. 17 Although (as the district court found) Pine turned the 18 discussion to the whereabouts of the gun, Moore, 2007 WL 19 708789, at *3, Pine was not involved in the investigation of 20 Moore, id. at *2, and Pine did not know that Moore was in 21 the lockup before Moore beckoned to him. 22 combination, these facts suggest that, although Pine 25 Although both Moore did so because he Id. In 1 questioned Moore about the location of the gun and the 2 district court suppressed Moore s response, Pine did not 3 initiate this questioning as part of a two-step 4 interrogation.6 4. Continuity of personnel. 5 There was little 6 continuity of police personnel involved in the two 7 interviews. 8 same officer did the questioning both times. 9 616. See Seibert, 542 U.S. at 615. In Seibert, the Id. at 605, Similarly, the lead postal investigator who set up the 10 sting operation in Capers did the questioning before and 11 then again after the defendant had been advised of his 12 rights. 13 first by Pine and later by Detectives Weisgerber and Murray. 14 The detectives were not present at the initial questioning; 15 and Pine was not present when the detectives asked the 16 questions. 17 his brief interaction with Moore, and Campanell was also 18 present at Moore s interrogation by the detectives, 19 Campanell had little, if any, role in questioning Moore. 627 F.3d at 473, 483. Here, Moore was questioned Although Pine called over Agent Campanell during 6 Both interviews took place in the police station; but the environment was significantly different. Moore s encounter with Pine, which began as a voluntary conversation after Moore initiated contact, was not inquisitorial, Capers, 627 F.3d at 483, while the second interview was routine and systematic. 26 1 5. Continuity of the questioning. Approximately 90 2 minutes elapsed between Pine s encounter with Moore and the 3 detectives interrogation of him. 4 officers left the station to retrieve the gun. 5 minute interval was enough time for Moore to have reasonably 6 believed that the second interrogation was not merely a 7 continuation of the first. 8 9 In that interval, the The 90- In Capers, a 90-minute break between questioning was insufficient. 627 F.3d at 484. But there, both encounters 10 were inquisitorial and conducted by the same inspector, who 11 was leading the investigation and had planned the sting 12 operation. 13 latter session was essentially a cross-examination using 14 information gained during the first round of 15 interrogation. 16 536). 17 continuation of the first, see Seibert, 542 U.S. at 615, nor 18 did the investigators use the information obtained from 19 Pine s questioning to cross-examine Moore or compel him to 20 answer due to the weight of an earlier admission, id. at 621 21 (Kennedy, J., concurring). See id. at 483-84. Moreover, in Capers, the Id. at 484 (quoting Carter, 489 F.3d at Here, the second interview was not treated as a 22 27 1 Moore had a 90-minute break between the two encounters, 2 which differed in every material respect. 3 momentum allowed Moore to appreciate that he retained the 4 right to remain silent. 5 see also United States v. McConer, 530 F.3d 484, 498 (6th 6 Cir. 2008) (describing a reasonable suspect s belief that he 7 or she retained a choice to remain silent as the factor 8 primarily relied upon by the Seibert plurality ). 9 The break in See Seibert, 542 U.S. at 616-17; Based on the totality of the record here, the 10 government has met its burden of demonstrating that it did 11 not engage in a deliberate two-step process to undermine 12 Moore s Fifth Amendment rights. 13 controlled by Elstad, not Seibert. 14 Therefore, this case is Under Elstad, the dispositive inquiry is whether the 15 statements were provided voluntarily and free of coercion. 16 470 U.S. at 318. 17 that his initial statement to Pine was coerced or otherwise 18 involuntary.7 Moore does not contend -- nor could he -- 19 7 This is so even though we presume the privilege against compulsory self-incrimination ha[d] not been intelligently exercised by Moore when he spoke to Pine because Moore had not been advised of his rights. Elstad, 470 U.S. at 310. 28 1 Nor can there be doubt that Moore s later statement was 2 voluntary. The circumstances of his questioning contain no 3 traces of the brutality, [p]sychological duress, threats, 4 [or] unduly prolonged interrogation that courts have 5 previously found when they have concluded that statements 6 were involuntarily made. 7 Jackson, 608 F.3d at 102-03) (alterations in original). 8 Moore was advised of his rights before the later 9 interrogation, and he agreed (orally and in writing) to Verdugo, 617 F.3d at 575 (quoting 10 waive them. There is no dispute that he was fully advised 11 of his rights and that he knowingly and voluntarily waived 12 them. 13 536-37. 14 after he was informed of his rights is itself highly 15 probative. 16 it is clear Moore knowingly and intelligently waived his 17 right to remain silent. 18 administration of Miranda warnings . . . ordinarily should 19 suffice to remove the conditions that precluded admission of 20 the earlier [unwarned] statement, id. at 314, and Moore s 21 statements to the authorities were voluntary, the district 22 court properly denied Moore s suppression motion as to 23 Moore s post-warning statement to the detectives. See Elstad, 470 U.S. at 314-15; Carter, 489 F.3d at Moore s willingness to talk with the police even Elstad, 470 U.S. at 318. Based on these facts, Because [a] subsequent 29 1 II. 2 Moore s second argument for suppression -- that his 3 post-arrest questioning violated his Sixth Amendment right 4 to counsel -- fares no better. 5 provides: In all criminal prosecutions, the accused shall 6 enjoy the right . . . to have the Assistance of Counsel for 7 his defence. 8 concluded that Moore s Sixth Amendment right had not yet 9 attached because the state prosecution had not been The Sixth Amendment U.S. Const. amend. VI. The district court 10 initiated, and (independently) that the Sixth Amendment did 11 not attach to the federal gun possession charge because the 12 Sixth Amendment is offense specific and the gun-possession 13 prosecution had not yet been initiated. 14 scores. We agree on both 15 16 17 A. The Sixth Amendment is concerned with the assistance of 18 counsel in criminal prosecutions. 19 Accordingly, the right to counsel does not attach until the 20 prosecution is initiated. 21 Moore s questioning here, no formal charging instrument has 22 yet been filed, the right to counsel generally attaches at U.S. Const. amend. VI. If, as true at the time of 30 1 the first appearance [by the accused] before a judicial 2 officer at which a defendant is told of the formal 3 accusation against him and restrictions are imposed on his 4 liberty. 5 (2008) (citing Michigan v. Jackson, 475 U.S. 625, 629 n.3 6 (1986), and Brewer v. Williams, 430 U.S. 387, 398-99 7 (1977)). 8 one issued pursuant to a criminal complaint sworn out by 9 prosecutors, is insufficient prior to the initial appearance 10 before a judicial officer. See United States v. Duvall, 537 11 F.2d 15, 21-22 (2d Cir. 1976) (Friendly, J.). 12 that point that the government has committed itself to 13 prosecute that the adverse positions of government and 14 defendant have solidified and the accused finds himself 15 faced with the prosecutorial forces of organized society, 16 and immersed in the intricacies of substantive and 17 procedural criminal law. 18 (internal quotation marks omitted). 19 Rothgery v. Gillespie Cnty., 554 U.S. 191, 194 Absent a formal charge, arrest on a warrant, even It is only at Rothgery, 554 U.S. at 198 Moore was questioned before he was arraigned. He had 20 been arrested the day after a state prosecutor presented an 21 application for an arrest warrant (with attached criminal 22 information) to a superior court judge. 31 Once Moore was 1 arrested, he remained in lockup where he had the 2 conversation with Pine and then was moved to an 3 interrogation room (after the gun was located) and 4 questioned by the detectives and Agent Campanell. 5 then arraigned the following day. 6 Moore was Moore argues that the line of cases fixing the 7 attachment of the Sixth Amendment at arraignment are 8 inapplicable here because the police unnecessarily delayed 9 bringing him to court. But, as the district court found as 10 fact, there was no attempt by the police to intentionally 11 keep Moore from being arraigned. 12 *2 (finding no evidence that anyone asked Officer 13 Zavodjancik to refrain from taking Moore to court nor any 14 evidence suggesting that Zavodjancik would engage in such 15 a subterfuge. ). 16 Carter, 489 F.3d at 534, and Moore has failed to show error. 17 Moore also argues that the Sixth Amendment attached Moore, 2007 WL 708789, at This finding is reviewed for clear error, 18 even before his arrest because the assistant state s 19 attorney obtained the arrest warrant by presenting the 20 superior court judge with an information and an application 21 for an arrest warrant. 22 in State v. Pierre, 890 A.2d 474 (Conn. 2006), held that an But the Connecticut Supreme Court, 32 1 information attached to an application for an arrest warrant 2 does not represent a commitment to prosecute, id. at 506- 3 508; rather, that commitment is made only when the state -- 4 following the defendant s arrest -- files the information 5 and arrest warrant with the court at the defendant s 6 arraignment, id. at 508. 7 Moore attempts to distinguish Pierre by drawing a 8 distinction between the signing of the information by 9 prosecutors in Pierre, and the filing of that information 10 with the court. 11 the arrest warrant application approved by the superior 12 court included an attached information signed by a state s 13 attorney. 14 until the entire arrest warrant, with the attached signed 15 information, was filed with the court at arraignment that 16 the document became an information within [S]ixth 17 [A]mendment jurisprudence, thus triggering the defendant s 18 constitutional right to counsel. 19 Like the sworn complaint in Duvall and the information in 20 Pierre, the information in this case initially function[ed] 21 . . . as a basis for an application for an arrest warrant, 22 Duvall, 537 F.2d at 22 (internal quotation marks omitted) -- But Pierre expressly stated that (as here) 890 A.2d at 504. Pierre held that it was not 33 Id. (emphasis added). 1 a prelude to a criminal prosecution . . . rather than the 2 initiation of an adversarial judicial proceeding in its own 3 right, Pierre, 890 A.2d at 508. 4 The precedents of this Court cited by Moore are not to 5 the contrary. 6 (2d Cir. 2005), we assumed that the right to counsel 7 attached before a defendant s first appearance before a 8 judicial officer because, [f]or the purposes of th[at] 9 appeal, the government d[id] not challenge the District 10 Court s determination that the police officers violated 11 Mills s right to counsel as to the state charges by 12 interrogating him after he was charged but prior to his 13 arraignment. 14 In United States v. Mills, 412 F.3d 325, 328 Accord id. at 326.8 In United States v. Worjloh, 546 F.3d 104, 108 (2d Cir. 15 2008) (per curiam), the defendant also relied on Mills, and 16 we made clear that such reliance was misplaced because Mills 17 proceeded based on the government s concession. 18 19 Accordingly, Moore s Sixth Amendment right to counsel had not attached before he was interrogated, and the 8 The district court s ruling was based on Connecticut precedents on this issue as they existed in 2004, prior to the state Supreme Court s decision in Pierre. See United States v. Mills, No. 03-32, 2004 WL 57282, at *2 (D. Conn. Jan. 8, 2004). 34 1 district court correctly denied his motion to suppress on 2 that basis. 3 4 B. 5 Independently, Moore s argument fails because even if 6 his right to counsel had attached to the state charges, it 7 had not attached to the federal charge for which he pleaded 8 guilty below. 9 [T]he Sixth Amendment right is offense specific, 10 meaning that even when the right to counsel attaches for one 11 offense, that does not mean that the defendant has a right 12 to counsel for all ongoing criminal investigations. 13 v. Cobb, 532 U.S. 162, 164 (2001) (quoting McNeil v. 14 Wisconsin, 501 U.S. 171 (1991)). 15 offense, however, is not necessarily limited to the four 16 corners of a charging instrument. 17 where the same act or transaction constitutes a violation 18 of two distinct statutory provisions, the test to be applied 19 to determine whether there are two offenses or only one, is 20 whether each provision requires proof of a fact which the 21 other does not. Texas [T]he definition of an Id. at 173. Instead, Id. (quoting Blockburger v. United 35 1 2 States, 284 U.S. 299, 304 (1932)).9 Moore was charged with (and pleaded guilty to) the 3 federal crime of being a felon in possession of a firearm. 4 The elements of such an offense are (1) that the defendant 5 is a felon, (2) who possesses a firearm or ammunition, (3) 6 which has been shipped or transported in interstate 7 commerce. 8 various state crimes including (1) two counts of attempt to 9 commit felony murder; (2) two counts of criminal use of a 10 firearm; (3) two counts of attempt to commit first degree 11 robbery; (4) two counts of conspiracy to commit first degree 12 robbery; (5) first degree reckless endangerment; (6) robbery 13 involving an occupied motor vehicle; and (7) third degree 14 assault. 15 overlaps with the federal charge is criminal use of a 16 firearm under Conn. Gen. Stat. § 53a-216(a). 17 of that crime are (1) commission of a felony, (2) in which 18 the defendant uses or threatens to use a firearm. 18 U.S.C. § 922(g). Moore was charged with The only one of those offenses that even arguably 9 The elements Id. The Blockburger defined the term offense for the purposes of the Fifth Amendment s protection against double jeopardy. Cobb applied Blockburger s definition in the right-to-counsel context under the Sixth Amendment. Cobb, 532 U.S. at 173 ( We see no constitutional difference between the meaning of the term offense in the contexts of double jeopardy and of the right to counsel. ). 36 1 federal charge has the added element that the defendant must 2 be a felon, and one element of the state offense (that is 3 missing from the federal statute) is that the defendant must 4 use or threaten to use the firearm in the commission of a 5 felony. 6 offenses. 7 Accordingly, under Blockburger, they are separate Moore argues the offenses are the same because Moore 8 received an increased sentence because he used or possessed 9 a[] firearm . . . in connection with another felony offense 10 11 . . . . U.S.S.G. § 2K2.1(b)(6). According to Moore s brief, when the Guidelines are an 12 integral component of the federal charge . . . , the state 13 statute can be seen as a lesser included offense of the 14 federal statute[] since it requires proof that the defendant 15 had used a firearm in committing a felony . . . . 16 does not explain, nor is it readily apparent, why the 17 Guidelines should be considered an integral component of a 18 federal offense. 19 the offense-specific, Sixth Amendment jurisprudence, which 20 determines whether two offenses overlap based on the 21 elements of the offenses and whether there are any elements 22 present in one of the offenses but not the other. Moore Moreover, any such argument is refuted by 37 See Cobb, 1 532 U.S. at 173; see also Blockburger, 284 U.S. at 304. 2 Sentencing enhancements are separate from the offense and 3 related conduct, which is why a defendant can receive an 4 enhancement as to one offense based on particular conduct 5 and then be prosecuted separately based on that same 6 conduct. 7 (1995); United States v. Grisanti, 116 F.3d 984, 987-88 (2d 8 Cir. 1997). 9 See Witte v. United States, 515 U.S. 389, 399-404 Because the Sixth Amendment is offense specific and the 10 state and federal offenses charged against Moore are 11 distinct offenses under the Sixth Amendment, Moore s Sixth 12 Amendment right to counsel was not violated by his post- 13 arrest questioning. 14 err in denying Moore s motion to suppress for the alleged 15 violation of his Sixth Amendment right to counsel. The district court therefore did not 16 17 18 CONCLUSION We have carefully considered all of Moore s remaining 19 arguments and find them to be without merit. 20 the judgment of the district court is affirmed. 38 Accordingly,
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