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United States v. Taylor, No. 11-2201 (2d Cir. 2014)Annotate this Case
This opinion or order relates to an opinion or order originally issued on December 4, 2013.
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 31 32 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2013 Argued: February 4, 2013 Decided: December 4, 2013 Petition for Rehearing Filed: January 17, 2014 Decided: March 4, 2014 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 33 appeal the judgments of the United States District Court for 34 the Southern District of New York (Marrero, J.), convicting 35 them of various charges related to a robbery of a pharmacy 36 in midtown Manhattan. 37 statements were not voluntary, and were not properly Because Taylor s post-arrest 1 redacted, the convictions are VACATED, and the case is 2 REMANDED for a new trial. 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 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: The United States petitions for rehearing following our 29 decision in United States v. Taylor, 736 F.3d 661 (2d Cir. 30 2013). 31 December 4, 2013 is withdrawn. 32 in our revised opinion, we vacate the convictions of the 33 three defendants and remand for a new trial. The petition is granted, and the opinion filed For the reasons that follow 34 Curtis Taylor, Antonio Rosario, and Samuel Vasquez 35 appeal judgments of conviction entered in the United States 2 1 District Court for the Southern District of New York 2 (Marrero, J.) for conspiring to commit Hobbs Act robbery and 3 brandishing a firearm during a crime of violence, among 4 other offenses related to the robbery of a pharmacy in 5 midtown Manhattan. 6 suicide by pills as he was arrested, argues that he was 7 incapacitated when he incriminated himself post-arrest, and 8 that the court s decision to admit those statements into 9 evidence violated his rights under Miranda v. Arizona, 384 Taylor, who claims to have attempted 10 U.S. 436 (1966), and the Due Process Clause of the 11 Constitution. 12 issues, join Taylor s challenge to the extent that Taylor s 13 confession was used against them, and appeal the denial of 14 their motion to sever on the ground that Taylor s statements 15 caused prejudicial spillover and violated the confrontation 16 right protected under Bruton v. United States, 391 U.S. 123 17 (1968). 18 Rosario and Vasquez, who raise separate This is a close case. But even assuming that Taylor s 19 initial waiver of his Miranda rights was knowing and 20 voluntary, Taylor was largely stupefied when he made his 21 post-arrest statements, as confirmed by the testimony of the 22 law enforcement agents and the pretrial services officer who 3 1 interviewed him, and by the evaluations of staff 2 psychologists at the Metropolitan Correctional Center 3 ( MCC ). 4 asleep repeatedly during questioning and was only 5 intermittently alert. 6 suggests--and the district court found--that Taylor s 7 incriminating statements were made in relatively lucid 8 intervals, Taylor was impaired throughout, and his 9 interrogators took undue advantage of that impairment by The agents and officer testified that Taylor fell Although their testimony also 10 continuing to question him. 11 Taylor s post-arrest statements were not voluntary. 12 further conclude that admitting those statements into 13 evidence was not harmless. 14 vacated and remanded for a new trial. 15 statements were redacted in a manner that left obvious 16 indicia that the co-defendants names had been deleted, 17 their convictions are also vacated and remanded for a new 18 trial. 19 20 We therefore conclude that We His conviction is therefore And because Taylor s I On Christmas Eve 2008, Vasquez drove Taylor and Rosario 21 from the Bronx to midtown Manhattan to rob a pharmacy. 22 them was Luana Miller, a drug addict from Mississippi with 23 an extensive criminal history. 4 With 1 En route, Miller called the pharmacy and asked them to 2 stay open for a few minutes past 5:00 PM, so that she could 3 pick up a prescription. 4 first, posing as a customer. 5 pharmacist, Rosario burst in the door brandishing a gun, 6 screaming that it was a robbery, and demanding OxyContin: a 7 powerful opioid for pain that is often resold illegally. 8 The two took more than $12,000 of controlled substances, as 9 well as cash and subway cards, while Taylor stood lookout at At the pharmacy, Miller went in As she spoke with the 10 the front door and Vasquez waited in the getaway car. 11 crew then drove back to the Bronx. 12 Taylor, Rosario, and Vasquez show that they were in the 13 Bronx that afternoon, traveled to midtown Manhattan just 14 before 5:00 PM, stayed near the pharmacy until just after 15 the robbery, and then returned to the Bronx. 16 The Cell phone records for While executing a warrant at the home of Miller s 17 boyfriend in January 2009, police arrested her on 18 outstanding warrants. 19 she offered to cooperate with the government s investigation 20 of the pharmacy robbery, and led police to Taylor, Rosario, 21 and Vasquez. 22 23 Fearing extradition to Mississippi, Around 6:00 AM on April 9, 2009, over 25 NYPD and FBI agents came to Taylor s apartment to effect his arrest. 5 1 Taylor claims that, amid the ensuing chaos, he attempted 2 suicide by taking a bottle-full of Xanax pills. 3 daughter testified that her mother (who died before trial) 4 reported the overdose to an officer who dismissed her and 5 told her to shut up. 6 as to whether Taylor actually took the pills, and as to 7 whether officers were told of his overdose. 8 9 Taylor s Still, the record is less than clear Around 9:30 that morning, Taylor was interviewed at FBI headquarters in downtown Manhattan by New York City Police 10 Department Detective Ralph Burch, a member of an FBI/New 11 York health care fraud task force. 12 waiving his Miranda rights, and went on to give a lengthy 13 statement confessing his involvement in the robbery. 14 Taylor signed a form Taylor argues that he was falling asleep and was at 15 times unconscious during the interview. 16 said that it seemed like Taylor s body was somewhat 17 shutting down during the two- to three-hour interview. 18 Supplemental App. 51. 19 that, though Taylor nodded off at times, he was coherent 20 and fluid when he was awake and speaking: 21 22 23 24 25 Detective Burch On the other hand, Burch testified 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 6 1 2 3 4 that he was understanding what was being asked of him and knew what was going on. Id. at 45. 5 need to be awakened during the interview; he just had to be 6 refocused. 7 and we had to stress did he understand what was going on. 8 . . . 9 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. 10 Taylor was later taken to a hospital for medical 11 clearance before his transfer into the custody of the 12 Marshals Service. 13 involved in the interrogation, explained that Taylor was 14 taken to the hospital because [t]here was some talk about 15 him on some medication and possibly an injury he had 16 sustained previous at a construction site. 17 Agent Tomas clarified that the hospital visit was necessary 18 because there was some question as to whether the Marshals 19 Service would take custody of someone who might be off : 20 We felt that his do[z]ing off might be a reason the 21 marshals wouldn t accept the custody of Mr. Taylor. 22 160. 23 sleeping, but he did not receive medical attention. 24 transferred to the MCC later that evening. FBI Special Agent Ian Tomas, who was also Id. at 137. Id. at Taylor spent the rest of the day at the hospital 7 He was 1 The next morning, April 10, Taylor met with MCC staff 2 psychologists. The MCC s chief psychologist, Dr. Elissa 3 Miller, explained that they wanted to evaluate Taylor before 4 his arraignment because they knew of Taylor s earlier 5 schizophrenia diagnosis and several prior attempts at 6 suicide. 7 by staff psychologists), Taylor presented with a thought 8 disorder, drooled, was vague, stared blankly, and [h]is 9 thoughts lacked spontaneity. According to Dr. Miller (who reported on findings Id. at 110. Miller testified 10 that if you asked him questions, he really couldn t 11 elaborate on them because his thought process was impaired. 12 Id. at 111. 13 Taylor also told one of the staff psychologists that 14 the day he was arrested by the FBI, he took multiple Xanax 15 pills in an attempt to kill himself because he had promised 16 himself that he would never go back to jail. 17 Taylor told Miller that, [a]s a result of taking all those 18 Xanax pills, he . . . wasn t waking up and he went to the 19 hospital. 20 Id. at 113. Id. He was then taken to the courthouse for arraignment. 21 While awaiting arrival of a pretrial services officer, 22 Taylor told Agent Tomas that he wanted to clear up some 23 issues about the charges that he was presented with. 8 Id. 1 at 139. 2 again advised him of his Miranda rights; Taylor confessed to 3 the robbery again. 4 Agent Tomas took Taylor to an interview room and Around 12:30 PM that day, Taylor met with Dennis 5 Khilkevich, a pretrial services officer. Khilkevich 6 testified that when he arrived for the interview, Taylor 7 appeared sleepy and had to be awakened to be interviewed. 8 Id. at 319. 9 if he was asleep or he was taking a nap. He was sitting in a chair and he appeared as Id. Khilkevich 10 stopped the interview because Taylor repeatedly fell asleep 11 in the chair. 12 Taylor was initially responsive maybe for several minutes, 13 but [t]hen he continued to fall asleep. 14 be woken up and he would be responsive for a few minutes and 15 then he would go to sleep again. 16 eventually finished the interview, explaining that Taylor 17 was awake and coherent [a]t times. 18 As to the other defendants: 19 ¢ Id. at 320. When the interview resumed, Id. Id. He had to Khilkevich Id. at 323. Rosario was also arrested on April 9, 2009, and 20 waived his Miranda rights. 21 that he was in the hospital the day of the 22 robbery, but then said he had actually been at his 23 girlfriend s house in Queens. 9 He claimed at first When told that a 1 surveillance video showed a suspect like him, 2 Rosario laughed and ambiguously said yeah. 3 Trial Transcript ( Tr. ) 571. 4 ¢ Vasquez was arrested a day earlier, on April 8, 5 after surveillance linked him to the car believed 6 to have been used in the pharmacy robbery. 7 arrested, he was carrying car keys, a cell phone, 8 and a piece of paper listing various milligram 9 doses of oxycodone and OxyContin, along with the 10 number of pills of each dose. 11 When statement to police. 12 Vasquez gave no The indictment charged the three with (1) conspiracy to 13 commit Hobbs Act robbery, in violation of 18 U.S.C. § 14 1951(b)(1); (2) Hobbs Act robbery; and (3) use, possession, 15 and brandishing of a firearm during a crime of violence, in 16 violation of 18 U.S.C. § 924(c)(1)(A)(ii). 17 additionally charged with (4) fraudulent acquisition of 18 controlled substances by passing forged prescriptions, in 19 violation of 21 U.S.C. § 843(a)(3). 20 Taylor was Taylor moved to suppress his two post-arrest statements 21 on the ground that his Miranda waivers and his post-arrest 22 statements were neither knowing nor voluntary. 23 testimony summarized above was given at the suppression 10 The 1 hearing (starting April 23, 2010, continuing May 4, 2010, 2 and concluding May 6, 2010). 3 suppression of Taylor s post-arrest statements, finding that 4 the government sustained its burden of proving that Taylor s 5 Miranda waivers were informed and voluntary. 6 App. 385. 7 enforcement agents was consistent, corroborated, and 8 truthful. The district court denied Supplemental The court found that the testimony of the law Id. at 386-87. 9 The court rejected the argument that Taylor s 10 incapacitation rendered his post-arrest statements 11 involuntary: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [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. 29 Id. at 387-88. 30 it did not equate nodding off intermittently with total 31 psychotic episodes of hallucination and other extreme The district court went on to explain that 11 1 circumstances that might throw greater doubt on the 2 defendant s ability to voluntarily and knowingly waive his 3 rights. Id. at 388. 4 Taylor s statements, which implicated Rosario and 5 Vasquez, were redacted at trial to remove their names. 6 jury was instructed that Taylor s statements should be 7 considered only as to Taylor. 8 9 The In December 2010, the jury convicted on all counts. Taylor was sentenced principally to 200 months 10 imprisonment, Rosario was sentenced principally to 180 11 months, and Vasquez was sentenced principally to 170 months. 12 They all filed timely notices of appeal. 13 14 15 II The main issue on appeal is whether Taylor s Miranda 16 waivers on April 9 and April 10, and his post-arrest 17 statements on each of those dates, were knowing and 18 voluntary. 19 regarding the constitutionality of a Miranda waiver de novo 20 and a district court s underlying factual findings for clear 21 error. 22 2007). We review a district court s determination United States v. Carter, 489 F.3d 528, 534 (2d Cir. 12 1 A statement made by the accused during a custodial 2 interrogation is inadmissible at trial unless the 3 prosecution can establish that the accused in fact knowingly 4 and voluntarily waived [Miranda] rights when making the 5 statement. 6 (internal quotation marks omitted). 7 knowing and voluntary waiver does not, however, guarantee 8 that all subsequent statements were voluntarily made. 9 re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d Berghuis v. Thompkins, 560 U.S. 370, 382 (2010) The existence of a In 10 177, 211-12 (2d Cir. 2008); see also Dickerson v. United 11 States, 530 U.S. 428, 444 (2000) ( The requirement that 12 Miranda warnings be given does not, of course, dispense with 13 the voluntariness inquiry. ). 14 We look at the totality of circumstances surrounding a 15 Miranda waiver and any subsequent statements to determine 16 knowledge and voluntariness. 17 298, 309 (1985). 18 awareness of the nature of the right being abandoned and the 19 consequences of abandoning it, and voluntary means by 20 deliberate choice free from intimidation, coercion, or 21 deception. 22 Cir. 2011), cert. denied, 132 S. Ct. 1610 (2012). See Oregon v. Elstad, 470 U.S. In that context, knowing means with full United States v. Plugh, 648 F.3d 118, 127 (2d 13 The 1 government bears the burden of proof. 2 Colorado v. Connelly, 479 U.S. 157, 168-69 (1986). 3 4 5 6 The analysis applicable to April 9 differs somewhat from the analysis applicable to April 10. April 9. In general, a suspect who reads, 7 acknowledges, and signs an advice of rights form before 8 making a statement has knowingly and voluntarily waived 9 Miranda rights. See Plugh, 648 F.3d at 127-28. Before 10 making his April 9 statement, Taylor was given Miranda 11 rights using an advice of rights form. 12 right, voiced his understanding, and signed the form. 13 the time, according to Detective Burch, Taylor had a fluid 14 demeanor, knew what was going on, and understood what was 15 happening. 16 by the district court, supports the conclusion that Taylor 17 knowingly and voluntarily waived his Miranda rights before 18 speaking with law enforcement on April 9. 19 Supplemental App. 15. He was read every At This evidence, credited But even accepting that Taylor s April 9 Miranda waiver 20 was knowing and voluntary, we must nonetheless determine 21 whether the inculpatory statements themselves were 22 voluntary. Dickerson, 530 U.S. at 444. 14 A confession is 1 not voluntary when obtained under circumstances that 2 overbear the defendant s will at the time it is given. 3 United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991). 4 The voluntariness inquiry should examine the totality of 5 all the surrounding circumstances, including the accused s 6 characteristics, the conditions of interrogation, and the 7 conduct of law enforcement officials. 8 mental state should be considered in the voluntariness 9 inquiry to the extent it allowed law enforcement to coerce Id. An individual s 10 the individual. 11 United States v. Salameh, 152 F.3d 88, 117 (2d Cir. 1998) 12 (per curiam). 13 Connelly, 479 U.S. at 164-65; see also The record indicates that Taylor s April 9 statement 14 was made when he was unable to summon the will to make a 15 knowing and voluntary decision; his will was overborne. 16 It is difficult to determine whether a confession is 17 voluntary; case law yield[s] no talismanic definition for 18 the term. 19 (1973). 20 unconscious or drugged or otherwise lacks capacity for 21 conscious choice, a confession cannot be voluntary. 22 (internal quotation marks omitted); see also United States Schneckloth v. Bustamonte, 412 U.S. 218, 224 It is clear, however, that when a person is 15 Id. 1 ex rel. Burns v. LaVallee, 436 F.2d 1352, 1355-56 (2d Cir. 2 1970) (holding a written confession to be involuntary when 3 given after over eighteen hours of uninterrupted custodial 4 interrogation, after he had been without sleep, and almost 5 without food, for thirty hours ). 6 Taylor claims he was mentally incapacitated during the 7 April 9 interview because of the quantity of Xanax pills he 8 ingested immediately before his arrest. 9 support in the record. That claim finds Detective Burch testified that 10 Taylor s body was somewhat shutting down, and that at 11 that time that he was answering questions . . . his body was 12 giving up on him. 13 court credited this testimony. 14 testified that, when Taylor was speaking, he was coherent 15 and understood what was going on when he was not nodding 16 off. 17 asleep at least two or three times during the interview, and 18 the officers repeatedly had to awaken him, or (to use the 19 nicer term) refocus him--at one point coaxing him, Mr. 20 Taylor, you have to answer our questions and focus with us. 21 Id. at 47. 22 little bit out of it and dozing off. Id. Supplemental App. 51. The district Granted, Burch also But it nonetheless appears that Taylor fell Agent Tomas corroborated that Taylor was a 16 Id. at 158-61. 1 In Mincey v. Arizona, 437 U.S. 385 (1978), statements 2 by a defendant who was hospitalized were ruled involuntary. 3 The Court observed that the defendant was in intensive care 4 for a serious wound and was evidently confused and unable 5 to think clearly about either the events of that afternoon 6 or the circumstances of his interrogation. 7 The statements were the result of virtually continuous 8 questioning of a seriously and painfully wounded man on the 9 edge of consciousness. Id. at 398. Id. at 401; see also id. ( But 10 despite [the accused s] entreaties to be let alone, [the 11 police officer] ceased the interrogation only during 12 intervals when [the accused] lost consciousness or received 13 medical treatment, and after each such interruption returned 14 relentlessly to his task. ). 15 On the other hand, in Salameh, we rejected a claim that 16 a statement was involuntary, even though the accused claimed 17 that prior to being taken into U.S. custody, he had been 18 incarcerated in Egypt and tortured for ten days. 19 at 117. 20 statements were voluntary because he did not contend that 21 federal agents either mentally or physically coerced his 22 remarks during that interrogation. 152 F.3d Despite the accused s weakened mental state, his 17 Id.; see also Plugh, 1 648 F.3d at 128 (statements voluntary because defendant was 2 never threatened physically or psychologically abused in any 3 manner, or made any type of promises such that his will was 4 overborne ) (internal quotation marks omitted). 5 One difference between Mincey and Salameh is the 6 presence in Mincey of police overreaching, see Connelly, 479 7 U.S. at 157 (stressing the "crucial element of police 8 overreaching" in assessing voluntariness), and that is no 9 doubt a difficult issue here. Continued questioning of a 10 sleep-deprived suspect can be coercive, depending on the 11 circumstances, see, e.g., Mincey, 437 U.S. at 401; LaVallee, 12 436 F.2d at 1355-56; but the decisive issue is whether the 13 will was overborne by the police, so that the defendant is 14 not using such faculties as he has. 15 Taylor was questioned do not appear to have been abusive;1 16 but there is little difference in effect between sleep 17 deprivation as a technique and the relentless questioning of 18 a person who is obviously unable to focus or stay awake for 19 some other reason. The conditions in which 20 1 The law enforcement agents, though persistent in interrogating Taylor and summoning him to alertness as he continued to fall asleep, do not appear to have acted maliciously or abusively during the interrogation. 18 1 The district court credited testimony that Taylor was 2 coherent at times. One such interval is when Taylor signed 3 the advice of rights form on April 9, a finding that we do 4 not disturb. 5 clear to the officers (as their testimony confirms) that 6 Taylor was in and out of consciousness while giving his 7 statement, and in a trance or a stupor most of the time when 8 not actually asleep. 9 questioning took undue advantage of Taylor s diminished But as that interview progressed, it became Thus, the officers persistent 10 mental state, and ultimately overbore his will. 11 Accordingly, we conclude that Taylor s statement on April 9 12 was not voluntary and should have been suppressed. 13 14 April 10. On the morning of April 10, Taylor himself 15 initiated contact with law enforcement by notifying Agent 16 Tomas that he wanted to clear up some issues about the 17 charges that he was presented with. 18 He was then orally re-advised of his rights, orally waived 19 them, and gave an additional statement, altering some 20 aspects of his April 9 account. 21 to slip in and out of consciousness that day, Agent Tomas 22 testified that, when Taylor spoke to the agents mid-morning, 19 Supplemental App. 139. Although Taylor continued 1 he was much more alert than he had been the day before.2 2 Id. at 139-42. 3 April 9 was the product of coercion, we must determine 4 whether his second waiver and confession, less than twenty- 5 four hours later, were rendered involuntary based, at least 6 in part, on the "taint clinging to the first confession." 7 Anderson, 929 F.2d at 102. 8 9 But because Taylor s first confession on [T]he use of coercive and improper tactics in obtaining an initial confession may warrant a presumption of 10 compulsion as to a second one, even if the latter was 11 obtained after properly administered Miranda warnings." 12 Tankleff v. Senkowski, 135 F.3d 235, 245 (2d Cir. 1998) 13 (internal quotation marks omitted). 14 after an accused has once let the cat out of the bag by 15 confessing, no matter what the inducement, he is never 16 thereafter free of the psychological and practical 17 disadvantages of having confessed. 18 331 U.S. 532, 540 (1947). That is so because, United States v. Bayer, 19 In deciding whether a second confession has been 20 tainted by the prior coerced statement, the time that 21 passes between confessions, the change in place of 2 As discussed further below, it is not at all clear that Taylor was appreciably more alert. 20 1 interrogations, and the change in identity of interrogators 2 all bear on whether that coercion has carried over into the 3 second confession. 4 Elstad, 470 U.S. at 310). 5 Taylor s first and second confessions, and in that interval, 6 Taylor was hospitalized or unconscious most of the time. 7 Although the venue of the interrogations differed, Agent 8 Tomas was present at both--and it was to Agent Tomas that 9 Taylor addressed his request to clear up some issues. Anderson, 929 F.2d at 102 (quoting Less than a day passed between The 10 taint of the prior involuntary confession carried over to 11 Taylor s second waiver and statement, burdening both with a 12 presumption of compulsion. 13 Tankleff, 135 F.3d at 245. That presumption is reinforced by uncontradicted 14 testimony regarding Taylor s lingering mental incapacity on 15 April 10. 16 alert only at times. 17 the April 10 interview, FBI Special Agent Steven Jensen saw 18 Taylor slouched in his chair, and he appeared to be 19 sleeping. 20 asleep, Agent Jensen explained (ambiguously) that it was in 21 excess of minutes. Taylor continued to doze off that morning and was Supplemental App. 162. Id. at 247. Just before When asked for how long Taylor was Id. 22 21 1 Although the record does not suggest that Taylor fell 2 asleep during the April 10 interview, there is evidence 3 that, throughout the day on April 10, Taylor remained in a 4 fog. 5 on the morning of April 10 and could not adequately respond 6 to questions: Dr. Miller reported that Taylor was mentally impaired 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Id. at 110. 21 by psychologists in her division: [I]f you asked him 22 questions, he really couldn t elaborate on them because his 23 thought process was impaired. 24 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. 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 Id. at 111. Dennis Khilkevich, a pretrial services officer who 25 interviewed Taylor at around 12:30 PM on April 10, found 26 Taylor drowsy and in need of rousing. 27 was sitting in a chair and he appeared as if he was asleep 28 or taking a nap. ). 29 he suspended the interview; and when he resumed, Taylor See id. at 319 ( He When Khilkevich tired of waking him up, 22 1 continued to fall asleep between short intervals of 2 consciousness, so Khilkevich ended the questioning. 3 4 The district court did not discredit the testimony of Dr. Miller or Khilkevich. 5 Evidence of Taylor s continued incapacity on April 10, 6 coupled with the taint of his prior confession, renders his 7 second waiver and statement involuntary. 8 totality of circumstances, we conclude that Taylor s 9 inculpatory statement on April 10 should have been 10 Considering the suppressed.3 11 12 13 III Next we consider whether the error in admitting those 14 statements was harmless. Arizona v. Fulminante, 499 U.S. 15 279, 310-11 (1991) (Rehnquist, C.J., writing for a majority 16 as to harmless error analysis); see also Zappulla v. New 17 York, 391 F.3d 462, 466 (2d Cir. 2004). 18 erroneous admission of an involuntary confession, the 19 appellate court, as it does with the admission of other 3 When reviewing the When it appears that a defendant is malingering, the calculus should be vastly different. Here, all the witnesses support the account that Taylor was actually slipping in and out of consciousness during the April 9 interview, and immediately before and after the April 10 interview. 23 1 forms of improperly admitted evidence, simply reviews the 2 remainder of the evidence against the defendant to determine 3 whether the admission of the confession was harmless beyond 4 a reasonable doubt. 5 added). 6 Fulminante, 499 U.S. at 310 (emphasis Is it clear beyond a reasonable doubt that a rational 7 jury would have found the defendant guilty absent the 8 error? 9 [T]he court conducting a harmless-error inquiry must Neder v. United States, 527 U.S. 1, 18 (1999). 10 appreciate the indelible impact a full confession may have 11 on the trier of fact, Fulminante, 499 U.S. at 313 (Kennedy, 12 J., concurring); it may be devastating to a defendant, 13 Id. at 312 (Rehnquist, C.J., writing for a majority as to 14 harmless error analysis). 15 factors bear on whether the erroneous admission of a 16 confession was harmless: (1) the overall strength of the 17 prosecution s case; (2) the prosecutor s conduct with 18 respect to the improperly admitted evidence; (3) the 19 importance of the wrongly admitted testimony; and (4) 20 whether such evidence was cumulative of other properly 21 admitted evidence. 22 23 The following (nonexclusive) Zappulla, 391 F.3d at 468. The admission of Taylor s involuntary confessions was not harmless error beyond a reasonable doubt. 24 (1) Taylor s 1 confessions were a critical part of the prosecution s case. 2 The case against Taylor otherwise rested on the testimony of 3 Luana Miller and cell-site records. 4 subject to attack, as Taylor claims, because of her criminal 5 past and because she had much to gain from cooperating with 6 the government. 7 corroborate Miller s account of their movements, no other 8 witness or physical evidence links Taylor to the crime. 9 The prosecution emphasized Taylor s confessions throughout Miller s testimony was Further, while the cell-site records (2) 10 trial, including at opening and closing, and had both 11 statements read to the jury in full. 12 confessions were important to the case, corroborating 13 Miller s critical testimony. 14 recognized to have greater impact than the same testimony 15 given by another witness. 16 at 312-13. 17 confession, as well as the other relevant factors, the 18 admission of Taylor s post-arrest statements was not 19 harmless. 20 (3) & (4) Taylor s Further, a confession is See, e.g., Fulminante, 499 U.S. Given the weight that a jury may accord a In sum, Taylor confessed while in a stupor, his will 21 was overborne, his statements were not voluntarily made, and 22 they should have been suppressed. 23 evidence against Taylor and the important role that his 25 Considering the other 1 confessions played at trial, this was not harmless error. 2 We therefore vacate Taylor s conviction and remand for a new 3 trial.4 4 5 6 IV Rosario and Vasquez argue that the admission of 7 Taylor s post-arrest statements violated their rights under 8 the Confrontation Clause because they had no opportunity to 9 cross-examine Taylor and because his statements pointed to 10 11 them. It matters that the district court gave limiting 12 instructions. The court instructed that [s]ome evidence is 13 admitted for a limited purpose only, and pointed 14 specifically to certain statements that law enforcement 15 agents testified were made to them by Mr. Taylor and Mr. 16 Rosario and that were admitted only as to the particular 17 defendant who made the statement. 18 court later reinforced that instruction: 4 Vasquez App. 220. The Aside from Counts One, Two, and Three of the indictment, which stemmed from the pharmacy robbery (of which all three defendants were convicted), Taylor was also convicted of making a misrepresentation to obtain OxyContin (Count Four). The government relied heavily on Taylor s confession in proving this offense. Accordingly, we vacate all of Taylor s counts of conviction, under the same harmless error analysis. 26 1 2 3 4 5 6 7 8 9 10 Id. at 227; see also id. at 177 ( The evidence of alleged 11 statements made by Curtis Taylor to law enforcement is 12 admitted with respect to Curtis Taylor alone and may not be 13 considered or discussed by you in any way with respect to 14 either of the other defendants . . . . ). 15 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 16 instructions. 17 47, 55 (2d Cir. 2009). 18 in a joint trial poses substantial risk for the other co- 19 defendants notwithstanding such an instruction. 20 v. United States, 391 U.S. 123, 135-36 (1968). 21 the Supreme Court recognized the risks posed by powerfully 22 incriminating extrajudicial statements of a co-defendant, 23 who stands accused side-by-side with the defendant, which 24 are then deliberately spread before the jury in a joint 25 trial. 26 gymnastic which is beyond, not only [the jury s] powers, but 27 anybody s else. 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 Nash v. United States, 54 F.2d 1006, 1007 27 1 (2d Cir. 1932) (L. Hand, J.). 2 the circumstances deprive a defendant of the constitutional 3 right to confront the witnesses against him. 4 Maryland, 523 U.S. 185, 196 (1998). 5 The risk is heightened when See Gray v. The crux of [the Confrontation Clause] is that the 6 government cannot introduce at trial statements containing 7 accusations against the defendant unless the accuser takes 8 the stand against the defendant and is available for cross 9 examination. Jass, 569 F.3d at 55 (internal quotation 10 marks omitted). 11 implicates his co-defendants, Bruton demands a redaction 12 and substitution adequate to remove the overwhelming 13 probability that a jury will not follow a limiting 14 instruction that precludes its consideration of a redacted 15 confession against a defendant other than the declarant. 16 Id. at 60. 17 replace a name with . . . obvious indications of alteration 18 fall within Bruton because they refer[ ] directly to the 19 existence of the nonconfessing defendant. 20 (quoting Gray, 523 U.S. at 192) (emphasis in original). 21 When the confession of one defendant Accordingly, redacted confessions that simply Id. at 58 Redactions and substitutions can avoid Bruton error if 22 the altered statement uses words that might actually have 23 been said by a person admitting his own culpability in the 28 1 charged conspiracy while shielding the specific identity of 2 his confederate. 3 previously allowed proper names to be replaced with the 4 following terms (among others): another person, id. at 59; 5 others, other people, and another person, United 6 States v. Tutino, 883 F.2d 1125, 1135 (2d Cir. 1989); the 7 pronoun he, United States v. Kyles, 40 F.3d 519, 526 (2d 8 Cir. 1994); this guy, another guy, and similar 9 language, United States v. Williams, 936 F.2d 698, 699, 701 10 (2d Cir. 1991); and friend, United States v. Benitez, 920 11 F.2d 1080, 1087 (2d Cir. 1990). 12 however, the possibility of a neutral-word substitution 13 being so conspicuously awkward that the alteration becomes 14 obvious. 15 1135 (upholding redacted statement where the jury never 16 knew that [the declarant s] original statement named 17 names ). 18 Id. at 62. Along these lines, we have We explicitly left open, Jass, 569 F.3d at 61; see also Tutino, 883 F.2d at The redactions here suggest that Taylor s original 19 statements contained actual names. 20 Miller s name is used--without redaction--conjoined with 21 reference to persons who are unnamed: LUANA MILLER and two 22 other individuals ; The person waiting with LUANA MILLER 23 and TAYLOR ; and TAYLOR, LUANA MILLER, and the driver. 29 Throughout, Luana If 1 Taylor had been trying to avoid naming his confederates, he 2 would not have identified one of them--Miller--in the very 3 phrase in which the names of the other confederates are 4 omitted.5 5 person involved who was cooperating, and would infer that 6 the obvious purpose of the meticulously crafted partial 7 redaction was to corroborate Miller s testimony against the 8 rest of the group, not to shield confederates. 9 The jurors would notice that Miller is the one Moreover, the wording of the statement suffers from 10 stilted circumlocutions: The robbery was the idea of the 11 person who waited with Luana Miller and Taylor at the gas 12 station ; Luana Miller and the other person who had waited 13 with Taylor at the gas station came up with the plan ; 14 [A]ll four of them went to the house of the mother of one 15 of the other individuals. 16 individuals is suspiciously closer to the speech of a 17 prosecutor than that of a perpetrator. 18 And reference to two other In Jass, we suggested that the following redaction 19 would be inadequate: When I realized the guard had pulled 20 the alarm, I turned and said to another person, Look, other 5 There was no evidence Taylor knew of Miller s cooperation at the time of his arrest; Miller did not sign a formal cooperation agreement with the government until months later. 30 1 person, we have to get out of here. 569 F.3d at 62. 2 Taylor s redacted statement betrays a similar flaw in 3 referencing Vasquez, who drove the car: the driver was 4 running late. 5 of them ; The driver then drove the car back to the Bronx. 6 These sentences reflect a mechanical substitution of the 7 driver s role for the driver s name. When the driver got there, he drove the three 8 Once it becomes obvious that names have been pruned 9 from the text, the choice of implied identity is narrow. 10 The unnamed persons correspond by number (two) and by role 11 to the pair of co-defendants. 12 confession . . . points directly to the defendant[s], and it 13 accuses the defendant[s] in a manner similar to . . . a 14 testifying codefendant s accusatory finger. 15 at 194. 16 of the redacted confession alone, that Taylor had likely 17 named the co-defendants. 18 inferences . . . involve statements that, despite redaction, 19 obviously refer directly to someone, often obviously the 20 defendant, and which involve inferences that a jury 21 ordinarily could make immediately, even were the confession 22 the very first item introduced at trial. (quoting Gray, 523 23 U.S. at 196)). This obviously redacted Gray, 523 U.S. The jury could immediately infer, on the evidence See Jass, 569 F.3d at 57 ( The 31 1 Jass does not require the most natural and colloquial 2 rendering of how a drug thief would have shielded the 3 identity of his confederates. 4 circumlocution used to reference other participants, coupled 5 with the overt naming of Luana Miller (only), is so 6 unnatural, suggestive, and conspicuous as to offend Bruton, 7 Gray, and Jass.6 But the awkward 8 9 10 V Rosario and Vasquez also argue that the admission of 11 Taylor s post-arrest statements caused prejudicial 12 spillover.7 Because we vacate the convictions of Rosario 6 After briefing and oral argument in this appeal, Taylor and Vasquez sought to raise an issue recently addressed by the Supreme Court in Alleyne v. United States, 133 S. Ct. 2151 (June 17, 2013): whether their brandish[ing] of a firearm in connection with a crime of violence--an element of the offense increasing the mandatory minimum sentence--was found by the jury beyond a reasonable doubt. Although we need not reach this issue (because we vacate their convictions on other grounds), the challenge has no merit; the jury did make the necessary finding. See, e.g., Verdict Form 5; Tr. 1194. 7 Vasquez raises two other arguments on appeal that may have some bearing on the proceedings upon remand. First, Vasquez argues that the district court erred by limiting his cross-examination of Miller on the circumstances surrounding Rosario s possession of a gun. Second, Vasquez argues that the district court delivered an unbalanced jury instruction on the significance of the ledger found in his pocket after his arrest. We see no abuse of discretion on either score. 32 1 and Vasquez on other grounds, we need not reach this claim.8 2 3 4 5 CONCLUSION For the foregoing reasons, we vacate the convictions and remand for a new trial. 8 It may matter on remand that Rosario s challenge to the admissibility of Miller s testimony under Rule 404(b) is without merit. Miller s testimony about plans to commit a pharmacy robbery related to the crime charged in this case, and the district court did not abuse its discretion by admitting that evidence as relevant background. See United States v. Greer, 631 F.3d 608, 614 (2d Cir. 2011). 33