United States v. Taylor, No. 11-2201 (2d Cir. 2013)

 Annotate this Case
Justia Opinion Summary

Defendants appealed their convictions related to their involvement in the robbery of a pharmacy. Defendant Taylor argued that he was incapacitated when he incriminated himself post-arrest and the admission of his statements violated his rights under Miranda v. Arizona. The court concluded that Taylor's post-arrest statements were not voluntary; admitting the statements into evidence was not harmless; the court vacated and remanded for a new trial; the admission of Taylor's statements, to the extent they could be used against Defendants Rosario and Vasquez, was not harmless error as to them; and the court vacated Rosario and Vasquez's conviction and remanded for a new trial.

The court issued a subsequent related opinion or order on March 4, 2014.
 The court issued a subsequent related opinion or order on May 23, 2014.

Download PDF
11-2201(L) United States v. Taylor 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, 2012 (Argued: February 4, 2013 Decided: December 4, 2013) Docket Nos. 11-2201(L), 11-2426(CON), 11-2639(CON) - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Appellee, - v.CURTIS TAYLOR, ANTONIO ROSARIO, AKA Chickee, SAMUEL VASQUEZ, AKA Rock, Defendants-Appellants. - - - - - - - - - - - - - - - - - - - -x Before: KEARSE, JACOBS and CARNEY, Circuit Judges. Curtis Taylor, Antonio Rosario, and Samuel Vasquez 31 appeal the judgments of the United States District Court for 32 the Southern District of New York (Marrero, J.), convicting 33 them of various charges related to a robbery of a pharmacy 34 in midtown Manhattan. 35 statements were not voluntary, the convictions are VACATED, 36 and the case is REMANDED for a new trial. Because Taylor s post-arrest 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 KELLEY J. SHARKEY, Brooklyn, New York, for Defendant-Appellant Curtis Taylor. JILLIAN S. HARRINGTON, Monroe Township, New Jersey, for Defendant-Appellant Antonio Rosario. COLLEEN P. CASSIDY, Federal Defenders of New York, Inc., New York, New York, for DefendantAppellant Samuel Vasquez. CHRISTOPHER D. FREY (Michael Bosworth, on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for Appellee. DENNIS JACOBS, Circuit Judge: Curtis Taylor, Antonio Rosario, and Samuel Vasquez 27 appeal judgments of conviction entered in the United States 28 District Court for the Southern District of New York 29 (Marrero, J.) for conspiracy to commit Hobbs Act robbery and 30 brandishing a firearm during a crime of violence, among 31 other offenses related to the robbery of a pharmacy in 32 midtown Manhattan. 33 suicide by pills as he was arrested, argues that he was 34 incapacitated when he incriminated himself post-arrest, and 35 that the court s decision to admit those statements into Taylor, who claims to have attempted 2 1 evidence violated his rights under Miranda v. Arizona, 384 2 U.S. 436 (1966), and the Due Process Clause of the 3 Constitution. 4 issues, join Taylor s challenge to the extent that Taylor s 5 confession was used against them, and appeal the denial of 6 their motion to sever on the ground that Taylor s statements 7 caused prejudicial spillover and violated the confrontation 8 right protected under Bruton v. United States, 391 U.S. 123 9 (1968). 10 Rosario and Vasquez, who raise separate This is a close case. Even assuming that Taylor s 11 initial waiver of his Miranda rights was knowing and 12 voluntary, Taylor was largely stupefied when he made his 13 post-arrest statements, as confirmed by the testimony of the 14 law enforcement agents and the pretrial services officer who 15 interviewed him, and by the evaluations of staff 16 psychologists at the Metropolitan Correctional Center 17 ( MCC ). 18 asleep repeatedly during questioning and was only 19 intermittently alert. 20 suggests--and the district court found--that Taylor s 21 incriminating statements were made in relatively lucid 22 intervals, Taylor was impaired throughout, and his The agents and officer testified that Taylor fell Although their testimony also 3 1 interrogators took undue advantage of that impairment by 2 continuing to question him. 3 Taylor s post-arrest statements were not voluntary. 4 further conclude that admitting those statements into 5 evidence was not harmless. 6 vacated and remanded for a new trial. 7 admission of Taylor s statements, to the extent they could 8 be used against Rosario and Vasquez, was not harmless error 9 as to them, their convictions are also vacated and remanded 10 We therefore conclude that His conviction is therefore And because the for a new trial. 11 12 We I On Christmas Eve 2008, Vasquez drove Taylor and Rosario 13 from the Bronx to midtown Manhattan to rob a pharmacy. With 14 them was Luana Miller, a drug addict from Mississippi with 15 an extensive criminal history. 16 En route, Miller called the pharmacy and asked them to 17 stay open for a few minutes past 5:00 PM, so that she could 18 pick up a prescription. 19 first, posing as a customer. 20 pharmacist, Rosario burst in the door brandishing a gun, 21 screaming that it was a robbery, and demanding OxyContin: a 22 powerful opioid for pain that is often resold illegally. At the pharmacy, Miller went in As she spoke with the 4 1 The two took more than $12,000 of controlled substances, as 2 well as cash and subway cards, while Taylor stood lookout at 3 the front door and Vasquez waited in the getaway car. 4 crew then drove back to the Bronx. 5 Taylor, Rosario, and Vasquez show that they were in the 6 Bronx that afternoon, traveled to midtown Manhattan just 7 before 5:00 PM, stayed near the pharmacy until just after 8 the robbery, and then returned to the Bronx. 9 The Cell phone records for While executing a warrant at the home of Miller s 10 boyfriend in January 2009, police arrested her on 11 outstanding warrants. 12 she offered to cooperate with the government s investigation 13 of the pharmacy robbery, and led police to Taylor, Rosario, 14 and Vasquez. 15 Fearing extradition to Mississippi, Around 6:00 AM on April 9, 2009, over 25 NYPD and FBI 16 agents came to Taylor s apartment to effect his arrest. 17 Taylor claims that, amid the ensuing chaos, he attempted 18 suicide by taking a bottle-full of Xanax pills. 19 daughter testified that her mother (who died before trial) 20 reported the overdose to an officer who dismissed her and 21 told her to shut up. 22 as to whether Taylor actually took the pills, and as to 23 whether officers were told of his overdose. Taylor s Still, the record is less than clear 5 1 Around 9:30 that morning, Taylor was interviewed at FBI 2 headquarters in downtown Manhattan by New York City Police 3 Department Detective Ralph Burch, a member of an FBI/New 4 York health care fraud task force. 5 waiving his Miranda rights, and went on to give a lengthy 6 statement confessing his involvement in the robbery. 7 Taylor signed a form Taylor argues that he was falling asleep and was at 8 times unconscious during the interview. Detective Burch 9 said that it seemed like Taylor s body was somewhat 10 shutting down during the two- to three-hour interview. 11 Supplemental App. 51. 12 that, though Taylor nodded off at times, he was coherent 13 and fluid when he was awake and speaking: On the other hand, Burch testified 14 15 16 17 18 19 20 21 22 Mr. Taylor at times was nodding off during the interview. When we asked Mr. Taylor to listen up, that we were asking him questions, he would respond that he knew what he was being asked and he would repeat the questions back to us to show that he was understanding what was being asked of him and knew what was going on. Id. at 45. 23 need to be awakened during the interview; he just had to be 24 refocused. 25 and we had to stress did he understand what was going on. 26 . . . 27 then. Detective Burch clarified that Taylor did not Id. at 46. He seemed like he was dozing off, [I]t was my impression that he knew what was going on Id. 6 1 Taylor was later taken to a hospital for medical 2 clearance before his transfer into the custody of the 3 Marshals Service. 4 involved in the interrogation, explained that Taylor was 5 taken to the hospital because [t]here was some talk about 6 him on some medication and possibly an injury he had 7 sustained previous at a construction site. 8 Agent Tomas clarified that the hospital visit was necessary 9 because there was some question as to whether the Marshals 10 Service would take custody of someone who might be off : 11 We felt that his do[z]ing off might be a reason the 12 marshals wouldn t accept the custody of Mr. Taylor. 13 160. 14 sleeping, but he did not receive medical attention. 15 transferred to the MCC later that evening. 16 FBI Special Agent Ian Tomas, who was also Id. at 137. Id. at Taylor spent the rest of the day at the hospital He was The next morning, April 10, Taylor met with MCC staff 17 psychologists. The MCC s chief psychologist, Dr. Elissa 18 Miller, explained that they wanted to evaluate Taylor before 19 his arraignment because they knew of Taylor s earlier 20 schizophrenia diagnosis and several prior attempts at 21 suicide. 22 by staff psychologists), Taylor presented with a thought 23 disorder, drooled, was vague, stared blankly, and [h]is According to Dr. Miller (who reported on findings 7 1 thoughts lacked spontaneity. 2 that if you asked him questions, he really couldn t 3 elaborate on them because his thought process was impaired. 4 Id. at 111. 5 Id. at 110. Miller testified Taylor also told one of the staff psychologists that 6 the day he was arrested by the FBI, he took multiple Xanax 7 pills in an attempt to kill himself because he had promised 8 himself that he would never go back to jail. 9 Miller recounted that, [a]s a result of taking all those Id. at 113. 10 Xanax pills, he said he wasn t waking up and he went to the 11 hospital. 12 Id. He was then taken to the courthouse for arraignment. 13 While awaiting arrival of a pretrial services officer, 14 Taylor told Agent Tomas that he wanted to clear up some 15 issues about the charges that he was presented with. 16 at 139. 17 again advised him of his Miranda rights; Taylor confessed to 18 the robbery again. 19 Id. Agent Tomas took Taylor to an interview room and Around 12:30 PM that day, Taylor met with Dennis 20 Khilkevich, a pretrial services officer. Khilkevich 21 testified that when he arrived to interview Taylor, Taylor 22 appeared sleepy and had to be awakened to be interviewed. 23 Id. at 319. He was sitting in a chair and he appeared as 8 1 if he was asleep or he was taking a nap. 2 stopped the interview because Taylor repeatedly fell asleep 3 in the chair. 4 Taylor was initially responsive maybe for several minutes, 5 but [t]hen he continued to fall asleep. 6 be woken up and he would be responsive for a few minutes and 7 then he would go to sleep again. 8 eventually finished the interview, explaining that Taylor 9 was awake and coherent [a]t times. 10 As to the other defendants: 11 ¢ Id. at 320. Id. Khilkevich When the interview resumed, Id. Id. He had to Khilkevich Id. at 323. Rosario was also arrested on April 9, 2009, and 12 waived his Miranda rights. 13 that he was in the hospital the day of the 14 robbery, but then said he had actually been at his 15 girlfriend s house in Queens. 16 surveillance video showed a suspect like him, 17 Rosario laughed and ambiguously said yeah. 18 Trial Transcript ( Tr. ) 571. 19 ¢ He claimed at first When told that a Vasquez was arrested a day earlier, on April 8, 20 after surveillance linked him to the car believed 21 to have been used in the pharmacy robbery. 22 arrested, he was carrying car keys, a cell phone, 23 and a piece of paper listing various milligram 9 When 1 doses of oxycodone and OxyContin, along with the 2 number of pills of each dose. 3 statement to police. 4 Vasquez gave no The indictment charged the three with (1) conspiracy to 5 commit Hobbs Act robbery, in violation of 18 U.S.C. § 6 1951(b)(1); (2) Hobbs Act robbery; and (3) use, possession, 7 and brandishing of a firearm during a crime of violence, in 8 violation of 18 U.S.C. § 924(c)(1)(A)(ii). 9 additionally charged with (4) fraudulent acquisition of Taylor was 10 controlled substances by passing forged prescriptions, in 11 violation of 21 U.S.C. § 843(a)(3). 12 Taylor moved to suppress his two post-arrest statements 13 on the ground that his Miranda waivers and his post-arrest 14 statements were neither knowing nor voluntary. 15 testimony summarized above was given at the suppression 16 hearing (starting April 23, 2010, continuing May 4, 2010, 17 and concluding May 6, 2010). 18 suppression of Taylor s post-arrest statements, finding that 19 the government sustained its burden of proving that Taylor s 20 Miranda waivers were informed and voluntary. 21 App. 385. 22 enforcement agents was consistent, corroborated, and 23 truthful. The The district court denied Supplemental The court found that the testimony of the law Id. at 386-87. 10 1 The court rejected the argument that Taylor s 2 incapacitation rendered his post-arrest statements 3 involuntary: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 [T]he defense does not allege that the government failed to read Mr. Taylor [his] rights before questioning began or any other coercion. Even were the Court to assume that Mr. Taylor ingested a large quantity of Xanax shortly before his arrest, the Court credits the testimony from the government s witnesses that Mr. Taylor was sufficiently lucid during the questioning that his waiver of Miranda rights was knowing and voluntary. The fact that there is evidence that Mr. Taylor nodded off from time to time during the questioning does not persuade the Court that during those portions of the testimony when he was awake and lucid he could not have voluntarily and knowingly waived his Miranda rights. 21 Id. at 387-88. 22 it did not equate nodding off intermittently with total 23 psychotic episodes of hallucination and other extreme 24 circumstances that might throw greater doubt on the 25 defendant s ability to voluntarily and knowingly waive his 26 rights. The district court went on to explain that Id. at 388. 27 Taylor s statements, which implicated Rosario and 28 Vasquez, were redacted at trial to remove their names. 29 jury was instructed that Taylor s statements should be 30 considered only as to Taylor. 11 The 1 In December 2010, the jury convicted on all counts. 2 Taylor was sentenced principally to 200 months 3 imprisonment, Rosario was sentenced principally to 180 4 months, and Vasquez was sentenced principally to 170 months. 5 They all filed timely notices of appeal. 6 7 8 II The main issue on appeal is whether Taylor s Miranda 9 waivers on April 9 and April 10, and his post-arrest 10 statements on each of those dates, were knowing and 11 voluntary. 12 regarding the constitutionality of a Miranda waiver de novo 13 and a district court s underlying factual findings for clear 14 error. 15 2007). 16 We review a district court s determination United States v. Carter, 489 F.3d 528, 534 (2d Cir. A statement made by the accused during a custodial 17 interrogation is inadmissible at trial unless the 18 prosecution can establish that the accused in fact knowingly 19 and voluntarily waived [Miranda] rights when making the 20 statement. 21 (internal quotation marks omitted). 22 knowing and voluntary waiver does not, however, guarantee Berghuis v. Thompkins, 560 U.S. 370, 382 (2010) 12 The existence of a 1 that all subsequent statements were voluntarily made. 2 re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 3 177, 211-12 (2d Cir. 2008); see also Dickerson v. United 4 States, 530 U.S. 428, 444 (2000) ( The requirement that 5 Miranda warnings be given does not, of course, dispense with 6 the voluntariness inquiry. ). 7 In We look at the totality of circumstances surrounding a 8 Miranda waiver and any subsequent statements to determine 9 knowledge and voluntariness. See Oregon v. Elstad, 470 U.S. 10 298, 309 (1985). In that context, knowing means with full 11 awareness of the nature of the right being abandoned and the 12 consequences of abandoning it, and voluntary means by 13 deliberate choice free from intimidation, coercion, or 14 deception. 15 Cir. 2011), cert. denied, 132 S. Ct. 1610 (2012). 16 government bears the burden of proof. 17 479 U.S. 157, 168-69 (1986). United States v. Plugh, 648 F.3d 118, 127 (2d The Colorado v. Connelly, 18 19 20 21 22 The analysis applicable to April 9 differs somewhat from the analysis applicable to April 10. April 9. In general, a suspect who reads, acknowledges, and signs an advice of rights form before 13 1 making a statement has knowingly and voluntarily waived 2 Miranda rights. 3 making his statement on April 9, Taylor was read Miranda 4 rights using an advice of rights form. 5 right, voiced his understanding, and signed the form. 6 the time, according to Detective Burch, Taylor had a fluid 7 demeanor, knew what was going on, and understood what was 8 happening. 9 by the district court, supports the conclusion that Taylor 10 knowingly and voluntarily waived his Miranda rights before 11 speaking with law enforcement on April 9. 12 See Plugh, 648 F.3d at 127-28. Supplemental App. 15. Before He was read every At This evidence, credited But even accepting that Taylor s April 9 Miranda waiver 13 was knowing and voluntary, we must nonetheless determine 14 whether the inculpatory statements themselves were 15 voluntary. 16 not voluntary when obtained under circumstances that 17 overbear the defendant s will at the time it is given. 18 United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991). 19 The voluntariness inquiry should examine the totality of 20 all the surrounding circumstances, including the accused s 21 characteristics, the conditions of interrogation, and the 22 conduct of law enforcement officials. Dickerson, 530 U.S. at 444. 14 A confession is Id. An individual s 1 mental state should be considered in the voluntariness 2 inquiry to the extent it allowed law enforcement to coerce 3 the individual. 4 United States v. Salameh, 152 F.3d 88, 117 (2d Cir. 1998) 5 (per curiam). 6 Connelly, 479 U.S. at 164-65; see also The record indicates that Taylor s statement of April 9 7 was made when he was unable to summon the will to make a 8 knowing and voluntary decision; his will was overborne. 9 It is difficult to determine whether a confession is 10 voluntary; case law yield[s] no talismanic definition for 11 the term. 12 (1973). 13 unconscious or drugged or otherwise lacks capacity for 14 conscious choice, a confession cannot be voluntary. 15 (internal quotation marks omitted); see also United States 16 ex rel. Burns v. LaVallee, 436 F.2d 1352, 1355-56 (2d Cir. 17 1970) (holding a written confession to be involuntary when 18 given after over eighteen hours of uninterrupted custodial 19 interrogation, after he had been without sleep, and almost 20 without food, for thirty hours ). Schneckloth v. Bustamonte, 412 U.S. 218, 224 It is clear, however, that when a person is Id. 21 Taylor claims he was mentally incapacitated during the 22 April 9 interview because of the quantity of Xanax pills he 15 1 ingested immediately before his arrest. 2 support in the record. 3 Taylor s body was somewhat shutting down, and that at 4 that time that he was answering questions . . . his body was 5 giving up on him. 6 court credited this testimony. 7 testified that, when Taylor was speaking, he was coherent 8 and understood what was going on when he was not nodding 9 off. Id. That claim finds Detective Burch testified that Supplemental App. 51. The district Granted, Burch also But it nonetheless appears that Taylor fell 10 asleep at least two or three times during the interview, and 11 the officers repeatedly had to awaken him, or (to use the 12 nicer term) refocus him--at one point coaxing him, Mr. 13 Taylor, you have to answer our questions and focus with us. 14 Id. at 47. 15 little bit out of it and dozing off. 16 Agent Tomas corroborated that Taylor was a Id. at 158-61. In Mincey v. Arizona, 437 U.S. 385 (1978), statements 17 by a defendant who was hospitalized were ruled involuntary. 18 The Court observed that the defendant was in intensive care 19 for a serious wound and was evidently confused and unable 20 to think clearly about either the events of that afternoon 21 or the circumstances of his interrogation. 22 The statements were the result of virtually continuous 16 Id. at 398. 1 questioning of a seriously and painfully wounded man on the 2 edge of consciousness. 3 despite [the accused s] entreaties to be let alone, [the 4 police officer] ceased the interrogation only during 5 intervals when [the accused] lost consciousness or received 6 medical treatment, and after each such interruption returned 7 relentlessly to his task. ). Id. at 401; see also id. ( But 8 On the other hand, in Salameh, we rejected a claim that 9 a statement was involuntary, even though the accused claimed 10 that prior to being taken into U.S. custody, he had been 11 incarcerated in Egypt and tortured for ten days. 12 at 117. 13 statements were voluntary because he did not contend that 14 federal agents either mentally or physically coerced his 15 remarks during that interrogation. 16 648 F.3d at 128 (statements voluntary because defendant was 17 never threatened physically or psychologically abused in any 18 manner, or made any type of promises such that his will was 19 overborne ) (internal quotation marks omitted). 20 152 F.3d Despite the accused s weakened mental state, his Id.; see also Plugh, One difference between Mincey and Salameh is the 21 presence in Mincey of police overreaching, see Connelly, 479 22 U.S. at 157 (stressing the "crucial element of police 17 1 overreaching" in assessing voluntariness), and that is no 2 doubt a difficult issue here. 3 sleep-deprived suspect can be coercive, depending on the 4 circumstances, see, e.g., Mincey, 437 U.S. at 401; LaVallee, 5 436 F.2d at 1355-56; but the decisive issue is whether the 6 will was overborne by the police, so that the defendant is 7 not using such faculties as he has. 8 Taylor was questioned do not appear to have been abusive;1 9 but there is little difference in effect between sleep Continued questioning of a The conditions in which 10 deprivation as a technique and the relentless questioning of 11 a person who is obviously unable to focus or stay awake for 12 some other reason. 13 The district court credited testimony that Taylor was 14 coherent at times. One such interval is when Taylor signed 15 the advice of rights form on April 9, a finding that we do 16 not disturb. 17 clear to the officers (as their testimony confirms) that 18 Taylor was in and out of consciousness while giving his 19 statement, and in a trance or a stupor most of the time when 20 not actually asleep. But as that interview progressed, it became Thus, the officers persistent 1 The law enforcement agents, though persistent in interrogating Taylor and summoning him to alertness as he continued to fall asleep, do not appear to have acted maliciously or abusively during the interrogation. 18 1 questioning took undue advantage of Taylor s diminished 2 mental state, and ultimately overbore his will. 3 Accordingly, we conclude that Taylor s statement on April 9 4 was not voluntary and should have been suppressed. 5 6 April 10. On the morning of April 10, Taylor himself 7 initiated contact with law enforcement by notifying Agent 8 Tomas that he wanted to clear up some issues about the 9 charges that he was presented with. Supplemental App. 139. 10 He was then orally re-advised of his rights, orally waived 11 them, and gave an additional statement, altering some 12 aspects of his April 9 account. 13 to slip in and out of consciousness that day, Agent Tomas 14 testified that, when speaking to the agents mid-morning, 15 Taylor was much more alert than he had been the day 16 before.2 17 confession on April 9 was the product of coercion, we must 18 determine whether his second waiver and confession, fewer 19 than twenty-four hours later, were rendered involuntary 20 based, at least in part, on the "taint clinging to the first 21 confession." Id. at 139-42. Although Taylor continued But because Taylor s first Anderson, 929 F.2d at 102. 2 As discussed further below, the question is not free of doubt. 19 1 [T]he use of coercive and improper tactics in 2 obtaining an initial confession may warrant a presumption of 3 compulsion as to a second one, even if the latter was 4 obtained after properly administered Miranda warnings." 5 Tankleff v. Senkowski, 135 F.3d 235, 245 (2d Cir. 1998) 6 (internal quotation marks omitted). 7 after an accused has once let the cat out of the bag by 8 confessing, no matter what the inducement, he is never 9 thereafter free of the psychological and practical 10 disadvantages of having confessed. 11 That is so because, United States v. Bayer, 331 U.S. 532, 540 (1947). 12 In deciding whether a second confession has been 13 tainted by the prior coerced statement, the time that 14 passes between confessions, the change in place of 15 interrogations, and the change in identity of interrogators 16 all bear on whether that coercion has carried over into the 17 second confession. 18 Elstad, 470 U.S. at 310). 19 Taylor s first and second confessions, and in that interval, 20 Taylor was hospitalized or unconscious most of the time. 21 Although the venue of the interrogations differed, Agent 22 Tomas was present at both--and it was to Agent Tomas that Anderson, 929 F.2d at 102 (quoting Less than a day passed between 20 1 Taylor addressed his request to clear up some issues. 2 taint of the prior involuntary confession carried over to 3 Taylor s second waiver and statement, burdening both with a 4 presumption of compulsion. 5 The Tankleff, 135 F.3d at 245. That presumption is reinforced by uncontradicted 6 testimony regarding Taylor s lingering mental incapacity on 7 April 10. 8 alert only at times. 9 the April 10 interview, FBI Special Agent Steven Jensen saw Taylor continued to doze off that morning and was Supplemental App. 162. Just before 10 Taylor slouched in his chair, and he appeared to be 11 sleeping. 12 sleeping, Agent Jensen explained that it was in excess of 13 minutes. 14 Id. at 247. When asked for how long Taylor was Id. Although the record does not suggest that Taylor fell 15 asleep during the April 10 interview, there is evidence 16 that, throughout the day on April 10, Taylor remained in a 17 fog. 18 on the morning of April 10 and could not adequately respond 19 to questions: 20 21 22 23 24 25 Dr. Miller reported that Taylor was mentally impaired When he was seen, he presented with a thought disorder. He was noted to be picking at his nails. He was drooling. He was vague in his responses to questioning. He presented with what we call a flat affect . . . just kind of flat and blank-face stare. 21 1 2 3 4 5 6 7 8 Id. at 110. 9 by psychologists in her division: [I]f you asked him He could not elaborate on questions asked. His thoughts lacked spontaneity. His speech was vague. When we would ask him certain questions about whether he was hearing voices, he couldn t really elaborate on his responses. Dr. Miller also reported the observation made 10 questions, he really couldn t elaborate on them because his 11 thought process was impaired. 12 Id. at 111. Dennis Khilkevich, a pretrial services officer who 13 interviewed Taylor at around 12:30 PM on April 10, found 14 Taylor drowsy and in need of rousing. 15 was sitting in a chair and he appeared as if he was asleep 16 or taking a nap. ). 17 he suspended the interview; and when he resumed, Taylor 18 continued to fall asleep between short intervals of 19 consciousness, so Khilkevich ended the questioning. 20 21 See id. at 319 ( He When Khilkevich tired of waking him up, The district court did not discredit the testimony of Dr. Miller or Khilkevich. 22 Evidence of Taylor s continued incapacity on April 10, 23 coupled with the taint of his prior confession, renders his 24 second waiver and statement involuntary. 25 totality of circumstances, we conclude that Taylor s 22 Considering the 1 inculpatory statement on April 10 should have been 2 suppressed.3 3 4 5 III Next we consider whether the error in admitting those 6 statements was harmless. Arizona v. Fulminante, 499 U.S. 7 279, 310-11 (1991) (Rehnquist, C.J., writing for a majority 8 as to harmless error analysis); see also Zappulla v. New 9 York, 391 F.3d 462, 466 (2d Cir. 2004). When reviewing the 10 erroneous admission of an involuntary confession, the 11 appellate court, as it does with the admission of other 12 forms of improperly admitted evidence, simply reviews the 13 remainder of the evidence against the defendant to determine 14 whether the admission of the confession was harmless beyond 15 a reasonable doubt. 16 added). 17 Fulminante, 499 U.S. at 310 (emphasis Is it clear beyond a reasonable doubt that a rational 18 jury would have found the defendant guilty absent the 19 error? Neder v. United States, 527 U.S. 1, 18 (1999). 3 When it appears that a defendant is malingering, the voluntariness calculus should be vastly different. Here, all the witnesses support the account that Taylor was actually slipping in and out of consciousness during the April 9 interview, and immediately before and after the April 10 interview. 23 1 [T]he court conducting a harmless-error inquiry must 2 appreciate the indelible impact a full confession may have 3 on the trier of fact, Fulminante, 499 U.S. at 313 (Kennedy, 4 J., concurring); indeed, it may be devastating to a 5 defendant, 6 majority as to harmless error analysis). 7 following (nonexclusive) factors in determining whether the 8 erroneous admission of a confession was harmless: (1) the 9 overall strength of the prosecution s case; (2) the Id. at 312 (Rehnquist, C.J., writing for a We consider the 10 prosecutor s conduct with respect to the improperly admitted 11 evidence; (3) the importance of the wrongly admitted 12 testimony; and (4) whether such evidence was cumulative of 13 other properly admitted evidence. 14 468. 15 Zappulla, 391 F.3d at The admission of Taylor s involuntary confessions was 16 not harmless error beyond a reasonable doubt. (1) Taylor s 17 confessions were a critical part of the prosecution s case. 18 The case against Taylor otherwise rested on the testimony of 19 Luana Miller and cell-site records. 20 subject to attack, as Taylor claims, because of her criminal 21 past and because she had much to gain from cooperating with 22 the government. Miller s testimony was Further, while the cell-site records 24 1 corroborate Miller s account of their movements, no other 2 witness or physical evidence links Taylor to the crime. 3 The prosecution emphasized Taylor s confessions throughout 4 trial, including at opening and closing, and had both 5 statements read to the jury in full. 6 confessions were important to the case, corroborating 7 Miller s critical testimony. 8 recognized to have greater impact than the same testimony 9 given by another witness. (3) & (4) (2) Taylor s Further, a confession is See, e.g., Fulminante, 499 U.S. 10 at 312-13. 11 confession, as well as the other relevant factors, the 12 admission of Taylor s post-arrest statements was not 13 harmless. 14 Given the weight that a jury may accord a In sum, Taylor confessed while in a stupor, his will 15 was overborne, his statements were not voluntarily made, and 16 they should have been suppressed. 17 evidence against Taylor and the important role that his 18 confessions played at trial, this was not harmless error. 19 We therefore vacate Taylor s conviction and remand for a new 20 trial.4 4 Considering the other Aside from Counts One, Two, and Three of the indictment, which stemmed from the pharmacy robbery (of which all three defendants were convicted), Taylor was also convicted of making a misrepresentation to obtain OxyContin 25 1 IV 2 To the extent that Taylor s confessions were used 3 against them, Rosario and Vasquez join Taylor s challenge 4 based on the voluntariness of Taylor s confessions.5 5 question is whether the admission of those statements was 6 harmless as to Rosario and Vasquez. 7 not. 8 9 The We conclude that it was It matters that the district court gave limiting instructions. The court instructed that [s]ome evidence is 10 admitted for a limited purpose only, and pointed 11 specifically to certain statements that law enforcement 12 agents testified were made to them by Mr. Taylor and Mr. 13 Rosario and that were admitted only as to the particular (Count Four). The government relied heavily on Taylor s confession in proving this offense. Accordingly, we vacate all of Taylor s counts of conviction, under the same harmless error analysis. 5 Vasquez explicitly joins Taylor s arguments. While Rosario failed to explicitly join, we exercise our discretion and construe Rosario s appeal to include those arguments made by Taylor that may be applicable to Rosario. See Fed. R. App. P. 2 ( On its own or a party s motion, a court of appeals may--to expedite its decision or for other good cause--suspend any provision of these rules in a particular case . . . . ); United States v. Babwah, 972 F.2d 30, 35 (2d Cir. 1992) ( Fed. R. App. P. 2 gives a Court of Appeals the discretion to overlook [a failure to raise an argument on appeal] if manifest injustice otherwise would result. ). 26 1 defendant who made the statement. Vasquez App. 220. 2 The court later reinforced that instruction: 3 4 5 6 7 8 9 10 11 12 Id. at 227; see also id. at 177 ( The evidence of alleged 13 statements made by Curtis Taylor to law enforcement is 14 admitted with respect to Curtis Taylor alone and may not be 15 considered or discussed by you in any way with respect to 16 either of the other defendants . . . . ). 17 As I instructed you previously, evidence of statements that law enforcement agents testified were made by a particular defendant was admitted with respect to that particular defendant alone, and if you find that the statements were made, may not be considered or discussed by you in any way with respect to any other defendant when you begin your deliberations. We normally assume that jurors follow limiting 18 instructions. 19 47, 55 (2d Cir. 2009). 20 in a joint trial poses substantial risk for the other co- 21 defendants notwithstanding such an instruction. 22 v. United States, 391 U.S. 123, 135-36 (1968). 23 the Supreme Court recognized the risks posed by powerfully 24 incriminating extrajudicial statements of a co-defendant, 25 who stands accused side-by-side with the defendant, which 26 are then deliberately spread before the jury in a joint 27 trial. Id. See, e.g., United States v. Jass, 569 F.3d But a confession by one co-defendant See Bruton In Bruton, Such limiting instructions call for a mental 27 1 gymnastic which is beyond, not only [the jury s] powers, but 2 anybody s else. 3 (2d Cir. 1932) (L. Hand, J.). 4 the circumstances deprive a defendant of the constitutional 5 right to confront the witnesses against him, which may 6 result in Bruton error. 7 196 (1998). 8 Nash v. United States, 54 F.2d 1006, 1007 The risk is heightened when See Gray v. Maryland, 523 U.S. 185, With this risk in mind, we turn to examine whether the 9 erroneous admission of Taylor s statements was harmless as 10 to Rosario and Vasquez--that is, whether it is clear beyond 11 a reasonable doubt that a rational jury would have found 12 Rosario and Vasquez guilty absent the error. 13 consider, among other things: (1) the strength of the 14 prosecution s case, (2) the prosecutor s conduct with 15 respect to the statements, (3) the importance of the 16 statements, and (4) whether the statements were cumulative 17 of other evidence. 18 Again we Zappulla, 391 F.3d at 468. As to Rosario, the prosecution s case was relatively 19 strong, but relied chiefly on the testimony of Miller, which 20 was subject to credibility attack, and on the cell-site 21 records. 22 footage from inside the pharmacy and the testimony of the The government also relied on surveillance video 28 1 pharmacist working during the robbery. 2 suggests that the face on the videotape was partially 3 covered; the pharmacist was unable to identify Rosario as 4 the assailant; and Rosario s post-arrest statement mostly 5 denied involvement in the robbery.6 6 critical to the prosecution because it corroborated Miller s 7 account and definitively placed Rosario at the scene of the 8 crime, in possession of a firearm. 9 beyond a reasonable doubt that a rational jury would have 10 However, the record Taylor s confession was We cannot conclude convicted Rosario absent Taylor s statements.7 11 As to Vasquez, the government s case was somewhat 12 weaker, again relied heavily on the cell-site records, and 13 drew its strength from Taylor s statements. 14 government s other evidence was a piece of paper found on 15 Vasquez s person when he was arrested, with oxycodone and The 6 After at first claiming he was elsewhere, Rosario laughed and said yeah when law enforcement told him that surveillance video showed a suspect that looked like him in the pharmacy. 7 Although Rosario s conviction is vacated on this ground, it may matter on remand that his challenge to the admissibility of Miller s testimony under Rule 404(b) is without merit. Miller s testimony about plans to commit a pharmacy robbery related to the crime at issue in this case, and the district court did not abuse its discretion by admitting the evidence as relevant background. See United States v. Greer, 631 F.3d 608, 614 (2d Cir. 2011). 29 1 OxyContin listed and annotated with numbers; and the 2 testimony of an officer who saw Taylor, Rosario, and Vasquez 3 together in Vasquez s car, which was allegedly used during 4 the robbery. 5 but no evidence tied it to the pharmacy robbery, and the 6 only evidence putting Vasquez s car at the scene of the 7 crime was testimony by Miller and the statements of Taylor. 8 For the same reasons reviewed above, we cannot conclude 9 beyond a reasonable doubt that a rational jury would have The piece of paper is likely a drug ledger, 10 convicted Vasquez had Taylor s statements been properly 11 excluded.8 12 We therefore hold that the admission of Taylor s 13 involuntary confessions was not harmless error as to Rosario 14 and Vasquez, and vacate their convictions and remand for a 15 new trial.9 8 Vasquez raises two other arguments on appeal that may have some bearing on the proceedings upon remand. First, Vasquez argues that the district court erred by limiting his cross-examination of Miller on the circumstances surrounding Rosario s possession of a gun. Second, Vasquez argues that the district court delivered an unbalanced jury instruction on the significance of the ledger found in his pocket after his arrest. We see no abuse of discretion on either score. 9 The Supreme Court recently decided that any fact that increases the mandatory minimum sentence--including whether a defendant brandished a firearm in connection with a crime of violence--is an element of the offense that must be found by a jury beyond a reasonable doubt. Alleyne 30 1 2 V Rosario and Vasquez also argue that the admission of 3 Taylor s post-arrest statements violated their rights under 4 the Confrontation Clause because they had no opportunity to 5 cross-examine Taylor and because his statements adverted to 6 them. 7 Because we have vacated the convictions of Rosario and 8 Vasquez on separate grounds, we need not reach their claim 9 of Bruton error. See Bruton v. United States, 391 U.S. 123 (1968). 10 11 12 13 CONCLUSION For the foregoing reasons, we vacate the convictions and remand for a new trial. v. United States, 133 S. Ct. 2151 (June 17, 2013). After briefing and oral argument were complete, Taylor and Vasquez sought to raise this issue on appeal, but because we are vacating their convictions on other grounds, we need not reach it. In any event, the jury did find brandishing beyond a reasonable doubt. See, e.g., Verdict Form 5; Tr. 1194. 31

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.