United States v. Capers

necessary may become as to er orders as

the children.

III. by the judgment affirm the entered

We 12, 2010.

district court on October We

find no error in the district court’s Find- Law,

ings of Fact and Conclusions approve aspects all of the district

we to removal. pertaining

court’s orders ordered to return respondent petitioner no later

N.C. and A.C. p.m. Thursday,

than 12:00 on December imposed by conditions

2010. The interim November 2010 Or- district court’s until children place

der remain are from the States. re-

removed United We jurisdiction

turn court to the district

any necessary orders. enforcement

Mandate to issue forthwith.

So ordered. America,

UNITED STATES of

Appellant, CAPERS, Defendant-Appellee.

William

Docket No. 07-1830-cr.

United States of Appeals, Court

Second Circuit.

Argued: July 2008.

Decided: Dec. Arreola, E. Assistant pers. Anna United December Inspectors (Katherine Failla, Attorney planted Express States Polk two Mail envelopes Attorney, mail-sorting facility Assistant States of coun- where Capers United worked. sel), Bharara, cash, envelope for Preet United States At- One contained and the $30 torney money for the District of New other contained two Southern orders and $80 York, York, York, equipped New for with an alarm Appellant. New device. The trigger automatically alarm was set to (Cyrus Vance, Steigman Jerrold L. R. the event the envelope money with the Jr., brief), Morrillo, Abramowitz, on the opened orders was and its contents re- Anello & Grand, Iason, Bohrer, P.C., New moved. York, York, for Defendant-Appellee. New Haring planted envelopes a mail HALL, Before: POOLER and Circuit container, Hoti, Postal Inspectors Del Gi- TRAGER, Judges, District Judge.* udice, Moon, and Chow conducted surveil- Capers lance of throughout day. At Judge TRAGER dissents in a separate approximately p.m., Capers noticed the opinion. envelopes for the first Approximate- time. HALL, Judge: Circuit later, ly two hours Capers and Juan Lo- pez, a fellow employee, entered trailer government appeals The from an order holding mail briefly disap- containers and entered in the United States District peared from inspectors’ view. Less Court for the Southern District of New later, than one minute alarm in J.) (McKenna, suppress York inculpato- envelope sounded, postal inspec- and the ry by statements defendant-appellee made tors rushed into the apprehend trailer to custody. while in We AFFIRM the order Capers both and Lopez. inspectors of the district court ground on the that the handcuffed both suspects. Inspector Hoti initial by conducted an inves- Capers instructed to follow him into a tigator aware of the obvious need for a supervisor’s office. Inspectors Del Giudice Miranda warning, followed 90 minutes la- and Moon also They entered the office. second, post-Miranda interroga- ter Capers chair, instructed sit still tion the same investigator, on the same handcuffed, while the three inspectors matter, subject under similar circum- stood around him. None of the inspectors stances and explicit with no curative lan- gave Capers warning. guage deliberate, amounted to a interrogation technique designed to under- According of Del Giud- defendant’s mine the rights. ice, Capers: Hoti said to like, something look, you know, talk to

BACKGROUND me, me or don’t talk to I don’t care but In March the United States I’m telling you Postal right you now or I’ll tell suspected Service defendant-appellee I’m going my Wil- to do best to make Capers, employed handler, liam you as a mail go away, just and I you want of stealing money Express orders from know. watching you And I’ve been all Mail envelopes. Postal Inspectors day. decided I everything you know did sting operation to conduct a targeting tonight. Ca- * York, Judge Trager David sitting by designation. G. of the United States District Court for the Eastern District of New 2006.) Hoti chair in which he sat. Del Giudice and Sept. Tr. then (Hr’g him, engaging of the Moon remained with him in Capers where the contents asked conversation, gathering further rele- envelope Mail were located. Ca- Express personal Capers vant information from gestured right pants toward his side pers paperwork. point, in their one Capers and Hoti asked what was At pocket, possibility Capers replied money or- asked Del Giudice about the pocket. his 34.) fired, (Hr’g being Tr. Hoti asked for Ca- and Del Giudice told him that ders. them, “grab” your and when “it’s in best interest to tell the truth pers’ permission to “yes,” the mon- when Hoti comes down. Be Capers said Hoti removed (Hr’g always you’re Tr. honest. It’s better if hon- ey Capers’ pocket. orders from 117.) 34.) money (Hr’g if the or- est.” Tr. Capers Hoti asked him, belonged Capers ders to and said no. Capers postal inspectors and the two 34.) (Hr’g Capers Tr. told Hoti he approximately waited for 30 to 40 minutes got money Express orders from the until Hoti entered the room. Hoti then 64.) envelope. (Hr’g Mail Tr. Hoti also of his Miranda rights. Capers advised questioned Capers about the cash that $30 reference, however, Hoti made no to the planted Express in the other had been Capers already statements had made dur- Capers that he envelope, Mail but stated ing interrogation. the initial Hoti ex- anything know about it. The en- did not in plained testimony, his “I don’t remem- took than five min- questioning tire less specific question sequence, ber the and its the lack of a Miranda Regarding utes. I say you and don’t see a need to what did warning, Hoti testified that he did not read do with the Express contents this Mail because he in a Capers rights his I already when have the answer to that. missing money track hurry to down the I ques- So would not have asked that same they get so that did not lost in the orders 72.) Tr. a (Hr’g Capers signed tion.” mail-sorting facility because he large and Warning Postal Service and Waiver of question Lopez, to who was held needed form, Hoti to Rights proceeded ques- and office, supervisor’s handcuffed outside the Capers about the events of the eve- tion to determine his level of involvement in the ning, specifically asking about what he did crime. Express envelopes Mail earlier with Del Giudice and Moon then escorted night. Capers verbally confessed Capers transport to a van to him to anoth- taking money orders. When Hoti (the facility statement, er Postal Service “Bronx Dom- him provide asked written icile”) questioning. They for further wait- Capers replied by asking, ‘What’s it for 51.) approximately in the 15 to 20 ed van (Hr’g Capers me?” Tr. Hoti told inspectors minutes while the other located nothing you,” I can promise “there’s 51.) alarm from envel- opened device questioning. (Hr’g then ended the Tr. van, ope. engaged In the Del Giudice 2006, in March Capers was indicted Capers primarily in conversation about Ca- charged with one count of theft of mail pers’ automobile. remained hand- by a in violation of postal employee, matter time, throughout cuffed which includ- suppress § He moved to U.S.C. waiting ed 15 to 20 minutes of and 20 inculpatory he both statements made driving minutes of to the Bronx Domicile. the Miranda receiving and after before 30, 2007, they warning, arrived at the Bronx Domi- and on March the dis- When cile, suppressing an order inspectors placed Capers in an trict court entered him to the the statements. The district court found interview room and handcuffed Capers’ has not shown that tuted a deliberate violation of Mi- government that “[t]he relinquished right rights. ... his randa defendant voluntarily with a full aware- remain silent purpose “Thе of the Miranda being waived rights and the ness person custody to ensure that the has doing so.” United States consequences knowledge sufficient of his or her constitu- 266, 959300, No. 06 Cr. WL Capers, v. rights relating tional * 2007) (internal (S.D.N.Y. Mar.29, rights and that waiver of such is know- omitted). Although marks quotation Carter, ing, intelligent, voluntary.” postal inspec- court found district Court, Supreme 489 F.3d at 534. The “specific have the intent” to tors did not Elstad, Oregon 470 U.S. 105 S.Ct. id., Capers’ rights, circumvent (1985), 84 L.Ed.2d interrogation tactics de- did find their has twice “genuine prived Capers right to re- addressed situations like this one in which * silent,” main 14. The United id. custody confessed without timely appeal. notice of States filed having received a warning, sub- sequently received a warning, Miranda

DISCUSSION again. and then confessed Review I. Standard of Elstad a involved situation in which a a district “We review court’s deter a suspect self-incriminating made state- regarding constitutionality mination the of police ment while two officers were at his a waiver de novo.” Miranda United investigating robbery. home a At the time Carter, (2d 528, States v. 534 warning. he had not received a Miranda Cir.2007). so, doing In we review “a dis Elstad, 300-01, 470 U.S. at 105 S.Ct. 1285. underlying trict factual findings court’s transported The suspect officers to a clear error.” Id. police station they gave where him a Mi- warning prior obtaining randa both an Two-Step II. Miranda and the Interro- 301, oral and written confession. at Id. gation Technique trial, 105 S.Ct. 1285. At the defendant The issue before us is whether Hoti and to suppress postwarning moved confes- postal the other inspectors deliberately ground de- sions on the that the statements prived rights to which he is made at the police station came about Arizona, entitled under Miranda v. 384 as result of the first inadmissable state- 436, 1602, 302, U.S. 86 S.Ct. 16 L.Ed.2d 694 ment made his house. Id. at 105 (1966). government The argues that the Supreme ultimаtely S.Ct. 1285. The Court given rejected defendant was an effective poisonous Miranda the “fruit of the tree” warning prior States, making voluntary inculpa- argument, Wong see Sun v. United tory statements, 471, 487-88, 407, and therefore the state- 83 S.Ct. following (1963), ments he made L.Ed.2d 441 and held that should not suppressed by “[tjhough have been requires Miranda that the un- district court. Capers argues that the rule warned suppressed, admission must be that Supreme in admissibility Court announced Mis- subsequent statement Seibert, 600, souri v. in solely U.S. S.Ct. should turn these circumstances 2601, (2004), 159 L.Ed.2d 643 and that on knowingly voluntarily whether and Carter, made,” Elstad, Court further clarified in requires 470 U.S. at 105 S.Ct. postal us to conclude that the inspectors’ police 1285. The Court reasoned that the two-step interrogation in this employ any case consti- did not coercive tactics to elicit plurality the defendant The Seibert concluded and either confession “[u]pon hearing warnings only voluntari- the after- confession postwarning made his just math of and after mak- 1285. The Court ly. Id. at S.Ct. confession, ing suspect hardly would “the dictates of Miranda concluded genuine right think to remain Fifth Amendment he had goals silent, compelled persist believing testi- let alone so once against use of proscription him police began circum- to lead over the same fully are satisfied mony ground again.” Id. at 124 S.Ct. 2601 case.” Id. at stances of this opinion). plurality focused (plurality on whether the midstream Miranda warn- a good-faith Elstad involved Whereas effective, ing questioned whether proper to administer a police effort “it would be reasonable find addressed the warning, Seibert warnings these circumstances the could strategy two-step interrogation of a use ‘effectively’ function as Miranda rе- designed post-Miranda to elicit a waiver quires .... advise the that he [and] and confession ‍​​​​‌‌‌‌‌‌​​​‌‌​‌‌‌​​​​‌​‌​‌​​‌​​​‌​​​‌​‌‌‌​‌​‌​‍after the defendant had giving had a real choice about an admissi- already given confessed before he was Mi juncture.” ble statement at that Id. warnings. police randa 611-12, 124 2601. Writing S.Ct. for the department policy withholding had a plurality, Justice laid out fac- Souter five warnings until an arrestee con weighed analyzing tors to be when reading the arrestee Mi fessed and then (1) warning: effectiveness of the “the com- asking for a waiver warnings randa pleteness and detail of the questions and prior eliciting a second confession. Sei in the interroga- answers first round of bert, 609-10, 124 542 U.S. at S.Ct. 2601 (2) tion,” overlapping “the of content police in (plurality opinion).1 The Seibert (3) statements,” timing two “the and set- strategy they when arrested employed this ting interrogation, of the first and second” setting a fire that killed the defendant (4) continuity police personnel,” “the 604, teenager. Id. at 124 S.Ct. 2601. (5) degree interroga- and “the to which the custody into taking After defendant questions tor’s treated the second round as deliberately withholding Miranda and 615, with the first.” at 124 continuous Id. elicited a confession. warnings, police S.Ct. 2601. 604-05, 124 police Id. at S.Ct. 2601. The gave plurality suppress the defendant a 20-minute voted to the sec- then because, Elstad, they ond confession unlike in provided break after which her Mi warnings, signed “system- obtained a waiver the unwarned was randa atic, ejdiaustive, managed psycho- a second con and with rights, tape-recorded and 605, 616, A logical fession. Id. at 124 S.Ct. 2601. skill.” Id. at 124 S.Ct. 2601. factors, against Applying admonished the five the plurality of the Court fo- “question-first” technique phases on the facts that: both the use of this cused strategy questioning suspеct and held that violated Mi occurred while the was 617, 2601; custody; 124 clearly randa. Id. at S.Ct. id. at there was no advice 620-21, J., (Kennedy, given 124 that her S.Ct. 2601 con first state- inadmissible; police curring). ment was the same police by Supreme 1. The Court noted a officer’s was corroborated a manual from the Po- Institute, two-step strategy provided testimony at trial that the lice Law which instruction Seibert, promoted by department, technique. 542 U.S. at 609- his as well as on the 10, training organization (plurality opinion). police and 124 S.Ct. 2601 national 476 interrogations tinguish

officer conducted both the two contexts appreciate and the same location with a 15 to 20 that the interrogation has taken a new two; (2) turn”; minute break between the and refer “an additional ences to the earlier confession fostered an explains likely inadmissibility of the “impression questioning the further prewarning custodial statement.” Id. Rea- was a mere continuation” of the first inter soning police that the had used a deliber- rogation. plurality ultimately Id. The con ate two-step interrogation technique and cluded that “[t]hese circumstances must be taken, that no curative steps had been seen challenging comprehensibility as Kennedy Justice concluded that post- efficacy warnings of the Miranda to warning statements were inadmissible. point person that a reasonable in the Id. suspect’s shoes would not have understood Carter, joined this Court the Elev convey message them to that she re enth, Fifth, Ninth, Third, Eighth Cir tained a continuing choice about to talk.” applying cuits in Kennedy’s Justice ap 617, 124 Id. S.Ct. 2601. proach in holding that “Seibert Kennedy Justice agreed plurali- with the lays exception out an to Elstad for cases ty’s conclusion that postwаrning state- deliberate, which a two-step strategy was ments should be suppressed, but he be- used law enforcement to obtain the plurality’s lieved the broadly,” test “cut too Carter, postwarning confession.” 489 F.3d 622, /., id. at 124 S.Ct. 2601 (Kennedy, Street, at 535. United States v. 472 Cf. concurring), it applied because in instances (11th 1298, Cir.2006); F.3d 1312 United of “both intentional and unintentional two- (5th v. Courtney, 333, States 463 F.3d 338 stage interrogations,” id. S.Ct. Cir.2006); Williams, United States v. 2601. Under approach, (9th F.3d Cir.2006); United question first would be whether law Kiam, (3d States v. 432 F.3d enforcement officers used “deliberate Cir.2006); United States v. Hernandez- two-step strategy” in “a way calculated Hernandez, (8th Cir. undermine the Miranda warning,” id. at 2004). Heron, But see United States v. 622, 2601, 124 S.Ct. and “to obscure both 879, (7th Cir.2009) (Jus 884-85 practical legal significance and of the Kennedy’s tice concurrence is not control admonition finally given,” 620, when id. at Carter, ling). In law agents enforcement 124 S.Ct. 2601. If the answer to that recovered a large bag drugs after “no,” question were suppression then the searching a restaurant owned operat and analysis governed would be by the volun- suspect. ed at Approxi Id. tariness standard set forth in Elstad. Id. mately 30 minutes after the search con If “yes,” however, the answer were cluded, agent an noticed the suspect sitting question next would be whether cura- and, outside the restaurant in a tive measures were casual taken “to that a ensure fashion, him asked about a person reasonable brown sub suspect’s situa- tion stance found in bag would understand the import drugs. and ef- The agent heroin, fect of the asked if the warning Miranda substance was and of the suspect “No, Miranda and the replied, waiver.” Id. Kennedy Justice it’s bad.” Id. provided two at examples agent asked, of such 532. The curative then “Bad (1) what?,” mеasures: “a substantial break in time to which the suspect replied, “Bad and circumstances between prewarn- agent coke.” Id. The later testified that ing statement and the warning he asked suspect about drugs sole ... [because] allows the ly accused to dis- “out of curiosity.” Approximately Id. later, giv- Capers’ doing, the defendant was statement. so the dis- minutes after rejected Kennedy’s signed ap- and after he trict court Justice a Miranda en form, agent proach explaining waiver different a Miranda Kennedy’s interrogation concurring opinion and elic- “cannot rea- conducted formal sonably taken to the law of confession. Id. at 533. The be be ited a full land,” represent because it did not knowledge had no the sus- agent latter majority opinion Supreme about the brown Court. previous statement pect’s (internal *11 quotation and not learn about it until Id. at marks omit- substance did ted). shortly before the trial commenced. Id. suppress moved to the sec- defendant decision, In a footnote to its the district grounds on the that he did ond confession Kennedy’s court remarked that “if Justice knowingly voluntarily waive his not law, represented Seibert concurrence rights. Id. at 534. suppression Capers, would be denied.” at n.17. WL *15 The district

Analyzing factual differences be- “[t]he statement, Seibert,” court based this which under case and id. [Carter’s] tween dictum, the circumstances constituted on agents determined that we understanding its that Justice deliberately two-step did not use a Carter test turned on “the intent of the strategy designed to circum- *10, (1) police,” id. at with the coupled district there vent Miranda for three reasons: inspec- court’s own determination that the the sus- overlap was almost no between “specific tors this case did not have the subsequent and his pect’s first statement Miranda, (2) intent” to evade id. at *12. confession; ques- different officers at different locations tioned Carter, intervening Our decision in how- (the being that was first outside the store ever, analysis. requires different Under interroga- searched and the second in an Carter, we must whether the address offi- room), the second officer was not tion “deliberate, employed a cers suspect’s previous inculpatory aware of the strategy, predicated upon violating Mi- (3) statement; postwarning ques- “the interview,” an during randa extended Sei- tioning pre- was not a continuation of the bert, and if U.S. warning question.”2 Id. at 536. Accord- id., so, “specific, steps,” whether curative Elstad, ingly, applying we determined that were taken to obviate the violation that postwarning Carter’s statement was made occurred. voluntarily, knowingly and and it was at at III.

properly admissible trial. Id. 536-37. Deliberateness Carter, Seibert, Here, predated in a decision that In because the record was clear intentionally interrogating the district court found that did that the officers warning purposefully technique his state- in give post-Miranda employed not instructed, “voluntarily they ment a full awareness of which had been id. at 609- with 10, 2601, Kennedy rights being waived and the conse- 124 S.Ct. Justice had no quences doing Capers, explore so.” 2007 WL reason to how court should de- * (internal 959300, quotation two-step interrogation at marks termine when a omitted). reason, deliberately. had executed suppressed strategy For that been ap- pect import understand the and effect 2. Because we concluded that the Seibert “would Carter, proach inapplicable we did of the Miranda and of the Miranda was not police reach the issue of whether the under- waiver.” J., any (Kennedy, concurring). curative that the sus- took measures such [Tjhere problem we now Wrestling nothing with ad- in the circum- dress, Ninth has stated: stances or the nature of the questioning Circuit to indicate that coercion or other im- matter,

As an initial we note that Justice proper tactics were used. All evidence Kennedy not articulate how a did court suggests that Nunez was calm and coop- interroga- whether an should determine erative, agents and the did not act with two-step tor used a deliberate strate- aggressiveness or hostility. The district gy- (cid:127) (cid:127) (cid:127) court stated that initially “the defendant example, Kennedy’s opinion For had nothing done more than voluntarily what, any presumptions is silent as to respond questions name, as to his apply party or which bears the burden birth, place of and immigration status.” of proving or deliberateness. disproving Nunez-Sanchez, United States v. 478 F.3d Williams, (5th Cir.2007).3 United States v. 435 F.3d 663, 668-669 (9th Cir.2006). 1158 & n. 11 Carter, In our Court’s opinion expressly F.3d without stating that constructing method to determine so, doing we were similarly analyzed we deliberateness, the Ninth Circuit objective factors. In the context of the “objective Williams looked to whether there, took place we evidence and available evi- only needed to consider three factors to dence, such as an testimony, officer’s conclude that the interrogating officers did support an inference in- deliberately not employ two-step interro- terrogation procedure was used to under- (1) gation procedure: there was no overlap mine the Miranda warning.” Id. at between suspect’s first and second Following on the Ninth Circuit’s (2) statements; different ques- officers guidance, test articulated tioned locations, at different Eleventh Circuit to determine deliberate- and the second officer was not aware of ness upon totality relies “the of the cir- the suspect’s previous inculpatory state- including cumstances ‘the timing, setting ment; (3) “the postwarning question- and completeness of the prewarning in- ing was not a prewarn- continuation of the terrogation, continuity of police per- Carter, ing question[ing].” 489 F.3d at sonnel and the overlapping content of the ” 536. pre- post-warning statements.’ Street, United States v. considerations, These while deter (11th Cir.2006) Williams, (quoting minative analysis of deliberateness 1159). 435 F.3d at Fifth Circuit’s ar- Carter, on presented the facts are no ticulation of when may deliberateness be means the factors to be considered inferred also relies upon totality seeking when to divine whether the offi the circumstances surrounding the inter- cers’ sufficiently actions are indicative of a rogations: deliberate circumvention of Miranda to unpublished In Judgment an Order the cause no coercion was evident in either the Circuit, declining Tenth while to surrounding endorse ei circumstances or the content of ther questioning, pre-arrest concurrence or the Seibert the the statement "oc- Seibert, plurality opinion holding as the parties of curred after the had bantered about explained Crisp, in United v. pursuit States 371 Fed. response question the and in to a 925, (10th Cir.2010), Appx. 932 that de marijuana the about the use” of the defendant's argument fendant's pre-warning that companion, his pre-Miranda female and "the рroduct statement was the of a deliberate post- statements also were unrelated to two-step interrogation unavailing was regarding be- Miranda statements cocaine base.”

479 (1986). deliberateness, question statements must The require that a defendant’s recognize the wisdom suppressed. voluntariness, be We from while distinct will that “the observation of Justice Souter’s dispositive nonetheless be of a defendant’s rarely as can intent of the officer will be challenge to the voluntariness of a confes- where didly admitted as it was” garnered two-step interroga- sion from a only officer testified not interrogating procedure. tion See United States v. a two-step that he trained to execute was (7th Cir.2008). Stewart, 714, 536 F.3d 719 interrogation procedure implied but also Circuit, Eighth also places which taught that the tactic is nationwide. Sei government disprove burden on the to de- bert, 6, at n. 124 S.Ct. 2601. 542 U.S. 616 liberateness, that while cautioned “the law above, light join In of the we our sister on generally requiring party frowns that a court should concluding circuits prove negative,” Supreme Court has totality objective review consistently required government surrounding evidence the inter admissibility prove confession in order to determine deliberate rogations defendant, Ollie, against a criminal 442 ness, in recognition with a most Illinois, at F.3d 1143. See also Brown v. rely heavily, if not inquiry stances the will 590, 603-04, 2254, 422 U.S. 95 S.Ct. entirely, objective evidence. Sei upon Cf. (1975) (requiring govern- L.Ed.2d 416 (Ken bert, 124 S.Ct. 2601 U.S. ment to show that a confession was not the (“[A] concurring) multifactor test nedy, arrest); ‍​​​​‌‌‌‌‌‌​​​‌‌​‌‌‌​​​​‌​‌​‌​​‌​​​‌​​​‌​‌‌‌​‌​‌​‍illegal Connelly, fruit of an earlier applies every two-stage interroga (requiring U.S. 107 S.Ct. 515 may clarity tion serve to undermine th[e] government to show that defendant’s ].”). [of given during Mirandа waiver an alleged Recognizing difficulty the inherent psychotic episode, knowing was and volun- deliberateness, proving and also conced tary). ing “determining the officer’s state of Indeed, Supreme “always has Court interrogation mind at the time of the can difficult,” ques high proof be we turn to the unsettled set standards of for the waiver ” party tion of which bears the burden rights.... Tague of constitutional v. Lou- proving deliberateness or absence thereof. isiana, 469, 470, 444 U.S. 100 S.Ct. Ollie, 1135, 1142 v. United States (1980). Tague, L.Ed.2d 622 the Court (8th Cir.2006). reasons, following For the responsible held: “Since the State is for pros we hold that the burden rests on the establishing the isolated un- circumstances disprove ecution to deliberateness. which place der takes making and has the means of avail- “[Wjhen challenged a confession as of warnings able corroborated evidence involuntary sought against is to be used during interrogation, incommunicado given trial, criminal defendant at his he is enti rightly the burden is on its shoulders.” tled to a reliable and clear-cut determina by Tague, Id. Guided we are mindful that tion that the confession was in fact volun lack evidence of deliberateness or thereof tarily Lego Twomey, rendered.” v. similarly govern- in the hands of the 477, 489, U.S. 30 L.Ed.2d 618 ment, persuaded and we are further (1972). Accordingly, place upon courts party seeking to introduce the confes- prove the burden to that a government responsible showing should remain sion voluntary. defendant’s confession See, through that it was not obtained a subter- e.g., Connelly, Colorado 157, 168, fuge. 107 S.Ct. 93 L.Ed.2d 473 65.) quantum Tr. respect (Hr’g

With Hoti testified that he was proof necessary, we are mindful that Mi concerned about losing money orders “heavy may impose [upon] “very, very randa a burden in the large” facility because to demonstrate that government money orders were about the size of a knowingly intelligently and defendant U.S. dollar and the defendants could “toss them, against self-incrimina privilege [y]ou’d waived his hide them ... have a [and] tion,” satisfy real, in to and that order real tough finding time in [them] “high proof’ ap burden a is large facility standarfd] like that with all the packages — plicable. Berghuis Thompkins, types and (Hr’g other of mail.” Tr. 31- 2250, 2272, 31.) -, U.S. making As to a determination about (2010) (Sotomayor, Lopez, L.Ed.2d 1098 dis- defendant Hoti testified that I “[i]f Nonetheless, senting). that, fairly fact, “[w]henever could determine in quickly proof crime, State bears the burden of in a mo- he had no role in play I need suppress tion to a statement that the de- to take those basically cuffs off and cut 35.) fendant claims obtained in violation of him (Hr’g. was loose.” Tr. When asked doctrine, our Miranda the State need position whether he was in a to read Ca- prove only by waiver a preponderance pers warnings his Miranda asking before Connelly, the evidence.” orders, U.S. him money about the replied Hoti apply 65.) 107 S.Ct. 515. the preponder- We “absolutely.” (Hr’g. Tr. ance challenges standard to Miranda in The district court concluded recognition that Miranda an is exclusion- from this purpose Hoti’s in ary deterring rule “aimed at lawless con- delaying warning Miranda was not to duct police prosecution,” and and that Capers’ undermine Fifth Amendment imposing higher proof burden of would rights, prevent but rather “to the loss or mitigaté prosecutorial do little to over- currency concealment of the money reaching while at the concealing same time orders that Express Mail envelopes probative troves of еyes evidence from the contained, and to ascertain Lopez whether jury. Twomey, 404 U.S. at crime, in involved so that he reasons, S.Ct. 619. For similar we hold could be or freed not.” Id. at *12 n. 13 government must meet its burden (citation omitted). Neither of these rea of disproving the deliberate use of a two- sons, however, justifies delaying a Mi step interrogation technique by a prepon- warning randa once is obvious that a derance of the evidence. in suspect custody. is excep There is no tion to Miranda that a delay allows

Looking to totality of the cir giving warnings pre order to us, cumstances in the case before the evi serve evanescent evidence. Neither proffered dence government there an exception to per Miranda that show that subject was not the of a delaying mits warnings deliberate, order two-step interrogation is out ascertain whether a suspected co-conspir weighed by subjective objective evi may Indeed, ator be entitled to release. dence to contrary. Hoti testified that agree we with the Williams Court in its delayed he issuing a observation that on, because his “mindset was ... one re covering evidence, ... well [a]s as deter a law [o]nce enforcement officer has de- mining if the two of them or if—either tained a subjects him to both of them or ever, one of them had ... rarely, there is role to play committing the legitimate crime.” delay giving reason to Miranda warning responding reporting until after the to a radio call Instead, plausi- progress. Capers’ crime in has confessed. most arrest was the one, illegitimate ... of a nine-month investigation reason is an culmination ble interrogatоr’s Capers’ suspected activity. desire to into criminal which is surveiling In warning’s Capers determining weaken the effectiveness. give to when the order to his team to only legitimate F.3d at 1159. The therefore, Capers Lopez, descend on delay intentionally a Miranda reason to Hoti had time think through pro- to what warning interroga- until after a custodial steps cedural he would need to take follow- begun protect safety tion is to has ing arrest in order to build his case for arresting public officers or the —nei- Because, prosecution. as the district court See, e.g., an here. ther of which was issue found, experience Hoti had sufficient to Newton, States v. United 369 F.3d know that a Miranda warning un- was Cir.2004) (2d (recognizing this “narrow ex- questionably necessary in connection with rule). to the Miranda ception” Capers’ post-arrest interrogation, the cor- legitimate not a ex- Inexperience, while ollary to that finding must also obtain. a Miranda postponing warning, cuse for experienced enough Hoti was to know that may save a confession from nevertheless in this case there was no valid reason to exclusion under Seibert. See United a Miranda delay warning ques- until after (3d Naranjo, States v. tioning suspect custody. Cir.2005) (implying that an “inadvertent” The district court found that there omission, mistake,” Miranda or “rookie Inspector “no evidence ... Hoti had should not warrant Seibert scrutiny). specific two-stage intent to use the us, however, the case before sufficient sub- questioning technique” to undermine Ca- jective evidence was adduced to rule out Miranda Capers, 2007 WL pers’ rights. inexperience the officers’ as well as raise 959300 at *12. The dissent endorses this significant doubts as to whеther a mistake finding, arguing that nothing “there is sus- had been made. The district found court picious put about the reasons forth it clear from Hoti’s and from his Inspector Hoti.” Dissent at 492. Consider- experience in law enforcement that his fail- circumstances, ing totality how- ure to an acci- Capers Mirandize was not ever, Inspector proffered we find Hoti’s explained: dent. The district court “In- the Miranda delaying reasons for spector merely forget give Hoti did not lack not only legitimacy, but also credi- Miranda defendant warnings. Inspector bility. Inspector explained Hoti that he City police Hoti had served as a New York delayed informing Capers of his years, In- officer for some three and as rights had to because Hoti determine testified, spector postal inspec- Del Giudice scheme, Lopez was in the and if involved Miranda when provide tors are ‘trained to ” not, him. If Capers he was release had Ca- interrogation.’ there is a custodial Inspector during told Hoti the initial inter- pers, (quoting Hr’g 959300at *12 WL 165). Lopez nothing Indeed, rogation had to do with explicitly Tr. Hoti testified scheme, Hoti, would who had “absolutely” position that he was in a just storage men enter a his Capers rights inform once witnessed the two envelope container and the alarms subse- supervisor’s was confined 65.) sound, (Hr’g quently Lopez office. Tr. The arrest of Ca- then have released blue,” recognizance? on his own We consider pers did not occur “out of as might driving respect were Hoti to work and wit- such conclusion dubious. With progress, a crime in or were he to Hoti’s claim that he did not want to lose nessed in money large mony arresting orders and cash and interrogating offi- contrary, cers. To the facility, by because Justice postal this assertion belied Kennedy’s only test seeks to exclude those arresting testimony of the officers that that statements are the result of deliberate Capers Lopez and were detained almost police strategies and calculated to under- envelope alarm directly after the sounded Miranda, mine and searching penetrat- storage and were found either still in the ing inquiry testimony of the officer’s container, in vicinity. or immediate proffered delaying reasons for above, objective as well as light of necessary is therefore to deter- below, evidence discussed the district strategies being mine when these are em- finding court’s there was “no evi- ployed. deliberate, two-step interroga- dence” of a tion tactic at work was clear error. Ca- The dissent asserts that the above con- pers, 2007 959300at *12. WL “gives absolutely sideration weight no inspector’s testimony that his reasons that the The dissent asserts “test used immediately advising for not Capers of his by In- determine whether rights prevent were to the loss spector deliberately Hoti utilized a two- currency or concealment of the money step interrogation technique effectively un- Express orders that Mail envelope subjective by dermines the test established contained and Lopez to ascertain whether Kennedy Justice ... ignores because it was involved in the crime.” Dissent at subjective showing evidence the in- 492. The argues dissent Judge spector deliberately did not utilize a two- McKenna Inspector “witnessed Hoti’s tes- step technique, and instead relies exclu- timony and was therefore better able to sively objective on the factors listed credibility.” assess his Dissent at 492. non-controlling plurality Seibert opinion.” Although appellate courts do not have the Dissent at 491. This conclusion misreads opportunity to testimony observe witness analysis our and conflates Justice Kenne- are, therefore, precluded making from dy’s test with that articulated Justice determinations, credibility in light of the Breyer in concurring his opinion Seibert. inconsistency clear Inspector between J., 542 U.S. at (Breyer, S.Ct. 2601 Hoti’s stated for delaying reasons Mi- (“Courts concurring) should exclude the warnings objective randa and the and sub- ‘fruits’ the initial unwarned questioning jective constituting evidence the remainder unless the failure to warn good was in bearing the record on point, it is faith.”) (citations omitted). contrast, By clear the district court’s determination our analysis considers the evi- “that there is no evidence ... dence suppression adduced hearing Hoti had specific intent to use the two- in the context set forth Justice Kenne- stage questioning technique pur- with the dy instructive but not automatically —as pose obtaining of first unwarned incrimina- dispositive. Kennedy’s Justice concur- order, ting subsequent statements rence in not Seibert does advocate a test interrogation, warned to obtain in- similar whereby a deliberate interroga- statements,” criminating Capers, 2007 WL tion will be found when a law enforce- *12, 959300 at afforded blind and absolute ment officer executing admits to such weight arresting strategy. Nor does this test envision ignored officers and all the other relevant blind, unquestioning reliance on the testi- evidence which we here announce must 95.) If you (Hr’g also be considered.4 want to know.” Tr. any meaning test is to have outside of the was throughout process. handcuffed unique never-again-to-be-repeated and cir- presented, On the facts the district court Seibert, correctly concluded, cumstances of the district court’s agree, we that analysis cannot initial questioning unidimensional be determi- Hoti’s was indeed a for- native of outcome in interrogation. the this case. mal Capers, See 2007 WL 959300, at *4 (concluding that Capers was Objective evidence also leads us to con- custody in from the moment he was hand- clude that the Government has failed to cuffed). demonstrating meet its burden of that Ca- pers subjected two-step was not to a inter- Between the phases two of the interro- First, rogation. there is considerable ov- gation, inspectors fellow engaged Hoti’s erlap between the statements elicited from talk,” in Capers “small and advised him during the defendant the first and second that it inwas his interest to tell the truth interrogation. Hoti’s initial interrogation when Hoti Capers arrived. continued to Capers of resulted in a confession and be throughout process. handcuffed ‘little, “there remained in- anything, of phase The second of the interrogation also ” criminating potential Capers, left unsaid.’ opened remark, with a hostile namely Seibert, (quoting 2007 WL at *13 Hoti’s observation that Capers was “one of at 124 (plurality S.Ct. 2601 employees the most laziest I’ve ever seen.” opinion)). surrounding The circumstances Nunez-Sanchez, 478 F.3d at 668-69 Cf. interrogation, the two sessions of the in- (finding that there was “no evidence of a cluding respective the nature of the envi- attempt deliberate employ interrogation rons in which the place took alia, because, strategy” inter agents “the continuity and the of the of cast interro- aggressiveness did not act with or hostili- officers, gating was indicative of a deliber- ty”). In combination with the Miranda ate two-step interrogation. While the lo- warning, inspectors clearly established cation interrogation sessions that this second encounter was not a casu- changed, in taking place the first a room at al conversation. For the part most there post office and the second the Domi- continuity was also in the present officers cile, the inquisitorial environment of the interrogations. During at both the first questioning was consistent. questions, Hoti asked the Carter, Unlike the initial conversation while Del present Giudice and Moon were Capers way between and Hoti was in no interrogation, the room. The second at Nunez-Sanchez, outset, casual. See 478 F.3d at inspec- involved the same three began 663-69. It with Hoti’s opening again tors with Hoti asking questions “I’m going statement to that to do and Del remaining Giudice and Moon si- my you away, just best to make I go lent. (5th Williams, Cir.2006); light

4. We note that in of the district court's 338 435 F.3d at (9th Kiam, Cir.2006); conclusion that “Justice concur 1157 432 at F.3d 532 Hernandez-Hernandez, (3d Cir.2006); reasonably rence ... cannot be taken to be ” land,’ (8th Cir.2004). likely appears the 'law of the it did avail not F.3d Indeed it opinions by though thought itself of a number of our sister as district court that the circuits, Kennedy required analyze only which have been instructive in our test it to officer, analysis, advising gauge offending trial how to courts statements of the without facts, Kennedy's any possibly deliberateness under Justice Sei reference to other contra Street, officer, dictory bert concurrence. See 472 F.3d at to the statements of the (11th Cir.2006); Courtney, appeared F.3d on the record. рrewarning stances between the statement temporal proximity Finally, (2) warning,” and “an and the Miranda interrogations, post-warning pre- likely explains additional continuity Caper’s custo- along with the inadmissibility custodial prewarning leads to the conclusion dy, reasonably on statement.” Id. Based the facts before of the former. latter was a continuation us, say curative we cannot such interro- separated two Only 90 minutes measure occurred such that rendered not carried out And while gation sessions. warnings given effective the Miranda at least to degree it was interrogation. Capers before second the latter session was “essen- some extent using informa- tially a cross-examination discussed, although approximately As during the first round of inter- gained tion passed minutes between the first and sec- Carter, rogation.” See interrogations, ques- ond the two rounds of government pro- has not Accordingly, one continual tioning process. bracketed objective evidence to meet duced sufficient Capers Del and Moon were with Giudice dispel burden to a conclusion that its minutes, in throughout engaging the 90 a Hoti’s conduct amounted to deliberate advising Capers “small talk” and to tell the interrogation tactic “question first” de- Despite truth. the different locations of signed Capers’ to undermine exercise of sessions, interrogation both occurred rights.5 his Miranda Capers while remained in handcuffs and in

settings clearly the au- established Measures IV. Curative thoritative nature of questioning. meaningful There is little difference be- having been estab Deliberateness surrounding tween the circumstances Ca- lished, we must next consider whether sessions, pers’ interrogation two and there to curative measures intervened restore certainly was no “substantial break” that voluntarily to opportunity the defendant’s rights. would have restored his Miranda Seibert, rights. exercise his Miranda See (Kennedy, Moreover, 542 U.S. S.Ct. 2601 despite knowledge Hoti’s J., concurring) (“[P]ostwarning Capers’ statements first statement would be inadmiss- court, pre that are related to the substance of in Capers able he never alerted warning Capers, statements must be excluded un that fact. at *14. WL curative are questioning less measures taken before Hoti continued his line of with- made.”). the postwarning dispelling Capers’ probable assumption statement is As out noted, Kennedy already provided two ex he had incriminated himself (1) amples potential of curative measures: on his first Hoti based confession. re- testimony. “a substantial break in time and circum- much in vealed as his When argues interrogations 5. The dissent that under the test out- two leads to the conclusion pre- two-step interrogation product lined above “in almost all cases where a that a mistake,” suppressed due poor confession is of "rookie resulted from officers, suspect’s rights, among investigating violation of the Miranda communication subsequent post-warning experienced will confession also or occurred when an officer suf- suppressed interrogating momentary lapse judgment. be because the offi- fered a What 'legitimate' require higher scrutiny cer will be unable to articulate will are situations where, here, advising suspect experienced reason for not of his or as an officer con- rights prior interrogations, her interro- and the initial ducts both reasons gation.” proffered initiаlly Mirandizing Dissent at 493. This conclusion for not a sus- reasoning. pect only questionable also misreads our To the con- are not but also inher- trary, many ently credibility light totality there be will occasions where the lack totality surrounding circumstances the circumstances. (2d Cir.2007), of the same posed whether he some extension Justice asked concurring opinion he Missouri at the Bronx Domicile as had questions 600, 124 2601, 159 office, S.Ct. supervisor’s earlier asked (2004) L.Ed.2d 643 require which he did not see the need replied Hoti —both the district court to determine an interro for which he questions to ask the same gating subjective officer’s intent failing 72.) (Hr’g By Tr. already had answers. to warn a of his rights. token, Capers’ Hoti did build on the same But the novel test majority, crafted original theft in the admission of session which examines whether the interrogating by structuring the second officer’s “legiti reasons would be deemed play-by-play description session to elicit a progeny, mate” under Miranda and its Capers stealing of how went about virtually instead evidence makes money orders. thus had no reason in nearly every irrelevant two-step interro to know that his first broad confession such, gation case. majority’s As deci when, against could not used him be sion undermines Justice con minutes later while still in close custo- trolling opinion in replaces Seibert and dy, actually he “waived” his Miranda objective with the pro “effectiveness” test facts, rights.6 On these there were no by posed non-controlling plu Seibert cure inspectors’ measures taken to use rality opinion. deliberate, two-step interrogation of the A more faithful application of Justice strategy. objective Because on the Kennedy’s Seibert concurrence requires a are evidence we left to conclude conclusion that Capers’ post-warning that inspectors employed strategy a statements are admissible based on the circumvent the defendant’s Miranda district court’s factual finding after there rights because were no curative —made thorough review of all of the evidence— measures to ensure the defendant was Inspector Hoti did not deliberately regard rights prior not misled with to his utilize a two-step interrogation technique. confession, Capers’ to his second waiver of majority improperly The undertakes a de rights his Miranda was invalid. The dis- novo review of the district court’s factual court, therefore, trict properly suppressed findings reviewing using rather than them post-warning his confession. “clearly the traditional erroneous” stan- majority suggests dard. The that a de CONCLUSION novo review necessary by pur- is made its reasons, For the foregoing we AFFIRM ported “totality construction of a novel suppress the district court’s decision to the circumstances” test for determining post defendant’s -Miranda statements. whether an interrogating purpose- officer fully two-step interrogation utilized a tech- TRAGER, Judge, dissenting: District But nique. entirely this new test is consis- respectfully My I colleagues dissent. by tent with the one used court district previous claim to follow this Court’s deci- Inspector to find that Hoti did not deliber- Carter, sion in ately technique, United States use such a and therefore mission, officer, interrogating 6. Consideration of whether or not curative known to the inquiry separate measures were taken is an inadmissible. Indeed an such omission on apart determining from deliberateness. part interrogating prоba- officer is however, deliberateness, analyzing When plan tive of a "calculated” to subvert Mi- may experienced courts consider an officer’s randa. suspect failure to warn that an earlier ad- suspected they robbing neighbor’s no basis to review the district provides findings factual de novo. court’s house—with a warrant for his arrest. there, one While of the officers had a brief Moreover, ap- even de novo review is suspect conversation with the without case, I propriate in this would still dis- warning him of his rights. agree majority’s sup- decision to with 300-01, 105 U.S. at S.Ct. officer post-warning confession because press the apparently warnings failed to issue the met its burden of government has because it was not clear himto whether proving preponderance the evi- suspect custody at the time. Inspector Hoti did not intend to dence During Id. 105 S.Ct. 1285. two-step interrogation technique. utilize a conversation, majority To the extent that the finds that the officer suspect asked the findings of the district court’s factual whether he knew the individual whose erroneous, clearly were mis- robbed, house had been to which the sus applies clearly erroneous standard pect responded by making an incrimina making credibility regard- determinations ting statement, statement. Following that testimony. ing credibility witness Such suspect transported was arrested and determinations, appropriate while never Approximately to the station house. one make, particu- for an court to are appellate later, hour the same two officers who had here, where, larly inappropriate as there is arrested the at his home advised nothing Hoti’s him of his rights, pro and then by the is either contradicted record evi- ceeded to full take a statement from him. inherently dence or unbelievable. 301-02, 105 at Id. 1285. S.Ct. proper Because review of all the evi- Supreme that, The although Court found evidence) (including dence the initial unwarned statement was inad that Inspector establishes Hoti did not de- missible, the later postwarning statement liberately two-step interrogation utilize a was admissible it voluntarily because was Miranda, technique to circumvent the vol- Court, According made. “[tjhough untary response statements made in requires Miranda that the unwarned ad post-warning interrogation should not be suppressed, mission must be the admissi suppressed. bility of subsequent statement should turn in these solely circumstances on

I whether knowingly voluntarily and a suspect This case involves who made a 309, 105 made.” Id. at S.Ct. 1285. self-incriminating response statement in questions from an interrogating pri- officer The of pre- post-warning issue and con being or to warned of his rights, Miranda again fessions came before the Supreme and then later made additional self-incrimi- case, Court v. In Missouri Seibert. nating statement after being warned ‍​​​​‌‌‌‌‌‌​​​‌‌​‌‌‌​​​​‌​‌​‌​​‌​​​‌​​​‌​‌‌‌​‌​‌​‍of his the Court was confronted with the inten rights. Supreme Court has tional two-step interrogation use of a tech twice considered cases of this nature —first Rolla, nique where officers in the Missouri Elstad, Oregon 298, v. 470 U.S. 105 police department had been trained to 1285, (1985), S.Ct. 222 84 L.Ed.2d and warnings ] until after “withhold[ again 600, in Missouri v. interrogating drawing and out a confes (2004). 159 L.Ed.2d 643 sion,” Seibert, 124 U.S. S.Ct. Elstad, Oregon (plurality opinion), “get two officers went to in order to the home of Michael Elstad —an individual confession the suspect would not make (1) outset,” rights completeness his at the id. included: and he understood detail pro- questions 2601. The Court of the in the S.Ct. answers first (2) gar- interrogation, none of round of opinions, overlapping several which duced (3) statements, of support of a content the two the tim nered (4) Justices, second, Writing ing setting for four Jus- of the first and Justices. (5) post-warning continuity police found that personnel, tice Souter (even though degree interrogator’s statements were inadmissible to which the they voluntarily questions made within the treated the second round were as con Elstad) 615, 124 question- “the tinuous with meaning of because the first. Id. at S.Ct. effectively threatens to thwart first tactic reducing purpose

Miranda’s the risk Kennedy, writing separately Justice that a coerced confession would be admit- opinion joined by an Breyer, ted, and because the facts here do not agreed with plurality post- reasonably support a conclusion that the warning suppressed, statements should be warnings given could have served their suggested but different test for deter 617, 124 purpose....” Id. at S.Ct. 2601. mining admissibility. their In contrast to test, plurality opinion plurality’s objective Justice Souter’s sets Justice Ken objective perspec- nedy focusing forth an test from the more on the conduct of law — suspect being interrogated, proposed tive of the a “narrower test enforcement — whereby deciding admissibility applicable only case, a court in the infrequent such here, post-warning statements followed as we have in which the two-step pre-warning interrogation technique inadmissible statements was used in a cal way should determine “whether it would be culated to undermine the Miranda (Ken warning.” to find that in these circum- Id. at reasonable S.Ct. 2601 J., warnings nedy, could function ‘effec- concurring). According stanсes to Justice tively’ requires.” Kennedy: interrogator as Miranda Id. at 611— an “When uses this deliberate, plurality The two-step strategy, predicated S.Ct. 2601. de- upon violating scribed “effectiveness” as the an during “[whether] extend interview, warnings effectively postwarning the ed advise statements that giving that he had a real choice about an are related to the prewarning substance of juncture” admissible statement at that and statements must spe be excluded absent cific, they reasonably convey that he steps.” curative Id. at S.Ct. “[whether] If stop talking interroga could choose to even he had 2601. the court finds that the According talked plu- deliberately two-step earlier.” Id. tor did not use a rality, perform inquiry strategy, a court should this then admissibility post- “the admissibility post- warning in all cases where the statements should continue to be warning challenged governed by statements is on principles based the of Elstad.” Id. 622, 124 the of an lingering effects inadmissible S.Ct. 2601. pre-warning interrogation. Id. This test conclusion, reaching In this Justice Ken- performed would be in addition to the nedy rejected majority’s purely objec- the inquiry Elstad into whether the statements test, applied tive which was to be in cases knowingly voluntarily

were made. of both intentional and unintentional two- plurality objec- stage interrogations, “cut[ting] then listed several as too 621-22, broadly.” tive factors that a court should consider Id. S.Ct. 2601. Instead, a determining Kennedy when whether the Justice felt that court effectively. only could function These factors should consider whether the Miranda place take cases or, review should in Justice Ken- warning was effective— intentionally used a words, interrogator “curative measures whether where nedy’s postwarning state- circumvent Mi- two-step technique are taken before in- cases where the made”—in ments are by plural- suggested randa. The tests two-step intentionally used the terrogator diverge in cases ity Kennedy and Justice In 124 S.Ct. 2601. Id. at technique. unintentionally interrogator where not inten- interrogator did where the cases In two-step interrogation. a performed technique to under- a tionally use cases, Kennedy’s concurring those Justice Miranda, Kennedy felt that Justice mine inquiry into states that the Elstad opinion ap- test should not be “effectiveness” “knowingly and statements were whether Id. plied. controls, whereas voluntarily made” still nature of the Despite fragmented newly- that the plurality opinion states Seibert, Supreme both decisions “effectiveness” test should also be crafted make precedents and this Court’s Court’s in Justice applied. Because the test stated Kennedy’s concurring clear that Justice Kennedy’s concurring opinion applies the fragmented opinion controls. “When ap- inquiry “effectiveness” —which single no ratio- a case and Court decides in at least some circum- proved use enjoys the result the as- explaining nale by majority of the Court—to a stances Justices, holding of the five ‘the sent of narrower set of than the test stated cases tak- may position viewed as that Court be Marks dictates plurality opinion, in the who concurred en those Members controlling opin- be considered ” grounds.’ the narrowest judgment on ion from Seibert.1 188, 193, States, 430 U.S. Marks v. United pur for our importantly Even more (1977). L.Ed.2d 260 In already poses, this Court has held Kennedy’s opinion, which Justice concurring opinion in suppressing the fifth vote for provided controlling opinion. is the Unit Seibert by the self-incriminating statements made (2d Carter, 489 F.3d 528 Cir. ed States v. defendant, provides controls because it 2007), decided after the district court is than the exception narrower to Elstad test bar, in the case at sued its decision proposed plurality. Whereas join stated: now our sister Court “We suggested that all cases where plurality lays an holding circuits in that Seibert out place should two-step interrogation took for cases in which a exception to Elstad objective for the effectiveness be reviewed deliberate, two-step strategy was used warning, Kenne- of the Miranda Justice the postwarning that such a law enforcement to obtain dy’s concurring opinion holds 537-38, U.S. at 118 S.Ct. applicability to Seibert is unaf Amendment. 524 1. The of Maries opinion). Kennedy (plurality Justice opinion in United States 2131 fected this Court’s (2d plurality joined by the Corp., in the result reached v. Alcan Aluminum 315 F.3d 179 Cir.2003). rejected Takings analysis, Clause find- that Marks was but its That case found ing Supreme splin instead that the Coal Act violated substan- inapplicable to the Court’s 539-50, process. Id. at 118 S.Ct. Enterprises Apfel, v. tive due tered decision in Eastern 498, 2131, Enterprises, where Unlike in Eastern 141 L.Ed.2d 524 U.S. (1998), concurring opin- plurality opinion Kennedy’s because Justice con 451 sepa- entirely the same result on logical ion reached currence was "not subset" concurring opinion grounds, the in Sei- analysis. Corp., rate plurality's Alcan Aluminum adopted "effectiveness” test as Enterprises, a bert the same at 189. In Eastern 315 F.3d plurality, that the test but held plurality that the Coal In Seibert four-Justice found (“Coal applied to a narrower subset dustry Act should be Retiree Health Benefits Act”) plurality held. Takings would have Clause of the Fifth cases than violated

489 Although pose obtaining at 536. the dis of first unwarned incrimina- confession.” Id. order, ting did not have the benefit of statements in in a subsequent trict court this when it consid guidance interrogation, from Court warned to obtain similar in- from question opinion criminating ered the of which statements.” United States v. controls, 06-CR-266, 959300, Carter has since defini No. Capers, Seibert 2007 WL * (S.D.N.Y. 2007). tively question. that answered Mar. Based intent, finding on his of a lack of Judge that, post- not My colleagues dispute do McKenna concluded: “[I]f Justice Kenne- Carter, Kennedy’s concurring opin- Justice dy’s represented Seibert concurrence clearly controls in this circuit ion Seibert law, suppression would be denied.” Id. at (as well as most other circuits that have n. 17. *15 Under the test established in issue2). The writes: decided opinion, Justice Seibert Carter, we must address whether “Under finding above factual is sufficient to deter- employed the officers a ‘deliberate two- denied, that suppression mine should be as strategy, predicated upon violating step rightly the district court noted. interview,’ during an extended so, ‘specific, steps’ curative whether findings district court’s factual were taken to obviate the violation suppression hearing made at a not should Majority (quoting at 477 Op. occurred.” they be overturned unless are found to be S.Ct. clearly erroneous. United States v. Ansal J., (Kennedy, concurring)). (2d di, Cir.2004). 372 F.3d “The trial in a unique position court is to evalu Kenne- Having recognized credibility,” ate witnesses’ United States controls, dy’s concurring opinion Seibert Davis, (2d Cir.1992), and is easily be resolved based this case should thereby positioned appel better than an entirely factual on the district court’s find- necessary late court to make the factuаl Instead, ings. majority goes astray by findings. reviewing the district court’s factual find- novo,3incorrectly applying ap-

ings de case, In this the district court consid- review, plicable doing test on de novo interrogating ered the from the way so in a that undermines Justice Ken- Inspector Hoti—and determined officer— nedy’s controlling opinion. Seibert credibly regard that he testified with to his giving reasons for not defendant Miranda Judge thorough McKenna’s and well- warnings prior questioning him at the below, opinion reasoned he stated Bronx DMU when he said: “[tjhere ... is no evidence Again, importance Hoti had the intent to use the two- to me under- specific I stage questioning technique pur- standing facility, with the did not want to majority recognizes opinion, findings, 2. As the in its review to the district court's factual Third, adopted by analysis clearly this view has been demonstrates that it do- its Fifth, Eighth, ing Majority Op. (“Looking Ninth and Eleventh Circuits. See at 480 to so. Majority Op. at But totality 476. see United States in the the of the circumstances case Heron, (7th Cir.2009) us, proffered by gov- 884-85 the evidence the before inapplica- (concluding that the Marks rule is ernment to show that was not the deliberate, Kennedy's ble to Seibert because “Justice in- subject two-step interrogation of a rejected by plu- tent-based test was both the outweighed by subjective objective is and evi- dissent”). rality the decision and contrary.”); at dence to the see also id. ("Objective evidence also leads us to conclude failed to Although majority explicitly that the Government has meet its 3. the does not burden....”). applying state that it is a de novo standard of evidence, I any interrogator lose of the did not want did not deliberately utilize to lose of the evidence in the case. two-step interrogation technique to cir- it, Obviously importance to recov- cumvent Miranda. I can. quickly er that evidence as as But instead of reviewing the district Secondly, I have another individual error, findings court’s factual for clear yes, he’s cuffed outside of the that’s— majority improperly chooses to review the office, Lopez. If I could determine Mr. novo, findings court’s factual de replacing that, fact, fairly quickly he had no role credibility district court’s determina- crime, I play

to that need to take tions with its own re-weighing and basically those cuffs off and cut him evidence based on information obtained loose. entirely from the written record. Capers, at (quoting 2007 WL *3 35). Tr. The district court found that this majority justifies The its reexamination finding that supported Inspec- of the district findings by court’s factual deliberately tor Hoti not did utilize a two- claiming that it is “constructing method step interrogation technique, *12, id. at deliberateness,” to determine Majority Op. that objective further determined namely, establishing party which way evidence in no contradicted his testi- bears the burden of proving deliberate- (“There mony, id. no ... is evidence that ness, what that burden is. But even Inspector Hoti specific had the intent to accepting majority’s that the opinion clari- two-stage questioning use the technique fies aspects of a test that previously were with the purpose obtaining first un- circuit, unsettled in this there is still no order, incriminating warned statements in basis for ignoring the district court’s thor- subsequent in a interrogation, warned ough fact-finding on this issue because the statements.”). obtain similar incriminating test articulated the majority is the ex- evidence, Based on all of the available act same test applied by district court found that Hoti did district court. not deliberately utilize a two-step interro- gation technique to circumvent Miranda. majority join states: our “[W]e sis- ter circuits in concluding that my

Even a court colleagues in the majority are should review the totality objective unwilling say factual finding clearly surrounding If evidence majority erroneous.4 had (in- interrogations in reviewed the order to district court’s determine delib- decision erateness, cluding recognition its with a ultimate conclusion that that most Inspec- tor intentionally inquiry rely Hoti did not instances the will heavily, utilize a two- step interrogation entirely, upon objective not technique) using the evidence.” proper standard, “clearly Majority Op. erroneous” at 479. goes then It on to state: outcome under Justice “[W]e test hold the burden rests on the from Seibert prosecution would have been -sup- disprove deliberateness,” id. clear— pression would have been denied because and that the burden is that of a Although two-step interrogation states that the technique "dis- to circum- [subsidiary] finding trict court’s there Instead, vent Miranda was clear error. deliberate, was 'no evidence’ of a reviews evidence in the record de novo error,” interrogation tactic at work was clear government pro- and finds that "the has not Majority Op. notably at it does not find objective duced sufficient evidence to meet its that the district court’s ultimate factual find- 484; burden.” Id. supra at see also note 3. ing Inspector that Hoti did not intend to use a (J.A. 349), evidence, at to which the preponderance,” id. at 479- of the preponderance attorney government responded, for the 80. (J.A. correct, your at “That’s Honor.” by the district court to used The test 350).6 Hoti utilized Inspector determine whether tech- two-step interrogation a deliberate II entirely Miranda is

nique to circumvent holdings of the above with each consistent if de novo review of the district Even opinion, In majority. its written by the regarding factual determination de- court’s totality “the court examined the district case, in appropriate were this liberateness its factual making in the circumstances” agree I be unable to with the would still deliberateness, regarding determination that Hoti majority’s finding Inspector de- subjective objective considering both liberately two-step interrogation utilized a it found relevant to deter- that evidence to circumvent Miranda. technique Inspector Hoti deliberate- mining whether interrogation tech- two-step utilized a ly by majority The test used to deter- 959300, at *11.5 2007 WL nique. Capers, deliberately Inspector mine whether Hoti two-step interrogation technique utilized a court does not ex- Although the district effectively subjective undermines test which side bears opinion state its plicitly by Kennedy established his con- deliberateness, proving the burden of (and adopted by curring opinion Seibert that the district court there is no doubt Carter) it ignores this Court in because deliber- government prove required in- subjective showing evidence that of the evi- by preponderance ateness spector deliberately did not utilize a two- in the district argument At oral dence. step technique, and instead relies exclu- court, parties, Judge McKenna asked objective listed in the sively on the factors assuming gen- that the I correct “[A]m opinion.7 non-controlling plurality Seibert is, that this is a applies, and sinсe eral rule statements, reviewing the evidence of whether In- suppress motion to two-step interroga- by spector Hoti utilized a the burden of government proof has technique two-step though did not intend to use the district court found 5. Even supra at 489-90. support circumvent Miranda. See objective did not defen- evidence Inspector Hoti deliber- dant's contention interrogation technique, ately used a “analysis majority claims that its con- 7. The objective considered all of the it nonetheless adduced at the siders the evidence plurality in factors articulated the Seibert hearing suppression but not ... as instructive reaching Capers, that conclusion. See Majority Op. automatically dispositive,” Therefore, major- that, case, WL at *13-15. Inspector finds in this but “ignored ity’s the district court all claim that testimony may disregarded be because Hoti's the testi- the ... relevant evidence” besides majori- credibility, id. even if the it lacks But officers, Majority Op. mony arresting Inspector testimony ty had Hoti’s found clearly contradicted the district credible, majority would still have opinion. written court’s it to consider the because refused reasons as be- deems Hoti's stated clearly applied ing illegitimate. Id. at 480-81. Notwith- The district court also standing majority's proclamations to the opin- preponderance standard in its written above, "legitimacy” test contrary, is clear that the court found As stated the district ion. subjec- adopted by malte would evidence in the record con- that none of the every in almost two- testimony that he tive evidence irrelevant Inspector Hoti’s tradicted majority gives technique, ring opinion tion absolute- operative ques ly inspector’s testimony tion is not whether weight Inspector no to Hoti had a legitimate reason for immediately questioning Capers for not his reasons advis- prior warning him of his Miranda ing Capers rights of his Miranda were to rights, but instead whether his reason for prevent the loss or concealment of the doing deliberately so was to utilize ‍​​​​‌‌‌‌‌‌​​​‌‌​‌‌‌​​​​‌​‌​‌​​‌​​​‌​​​‌​‌‌‌​‌​‌​‍a two- currency money Ex- orders step interrogation procedure in with the Mail press envelope contained and to as- purpose tended of undermining Miranda. Lopez certain whether was involved in the In opinion joined an by retired Justice crime so that he could be released if neces- sitting by David Souter designation, the 480-81; sary. Majority atOp. see also recognized First Circuit as much and held Capers, 2007 at *12 & n. WL that an interrogation purposes 35). (citing Tr. 32 & recovering evidence did not constitute a Despite Judge the fact that McKenna— two-step strategy deliberate because the Inspector who witnessed testimony Hoti’s initial interrogation was primarily “aimed and was therefore better able to assess his at securing the weapon” [stolen] that the credibility that the inspector’s tes- —found police searching were for. United States credible, timony majority chooses Jackson, (1st 100, 104 Cir.2010) give because, it no weight whatsoever J.). (Boudin, light, there is nothing according majority, to the Hoti did not suspicious about the put by reasons forth legitimate exception articulate a to Mi- why Hoti for he did not advise Notably, majority randa. states: Capers of rights his Miranda prior to [given by Neither of these reasons In- interrogating reasons, him. Both under spector justifies delaying a Hoti] Mi- circumstances, quite were credible. randa warning once it is оbvious that a By importing the establishing tests le- suspect custody. is in There is no ex- gitimate exceptions to Miranda into the ception to delay allows a factual test for whether an interrogating in giving warnings in order to deliberately officer utilized a two-step preserve evanescent evidence. Neither technique, majority completely under- exception is there an to Miranda that subjective mines the test that lies at the permits delaying warnings in order heart of Justice Kennedy’s Seibert opinion. to ascertain suspected whether a eo-con- line of cases is Elstad/Seibert spirator may be entitled to release. relevant when statements made in re- Majority Op. at 480. sponse to the initial questioning are ex- Even assuming correct cluded If Miranda. district courts are finding that Inspector Hoti’s did required now disregard subjective testi- not express “legitimate” reasons for not mony about an interrogator’s reasons for immediately advising Capers of his Mi- not warning of his Miranda rights, randa that conclusion would be rights whenever pre-warning statements import little inquiry at hand— Miranda, would be excluded then whether deliberately he utilized a courts considering two-step interrogations interrogation technique. Under the test will be forced to disregard whatever sub- established in jective concur- may evidence exist.8 step interrogation inquiry. step interrogations. See at 492- Majority Op. at 479-80 infra ("[I]n inquiry most rely instances the will heavily, entirely, upon objective if not evi- majority suggests 8. The evi- dence.”). so, But even if that poten- were may rarely dence involving exist in cases two-

493 test, prior interrogating all to him—and thus the majority’s almost Under that would allow a court only confession is reаson pre-warning a cases where testimony the sus- consider the officer’s to a violation of due suppressed —then proper would never be for courts con- Miranda rights, subsequent post- a pect’s interrogating sider an officer’s suppressed will also be warning confession two-step interrogation cases. This officer will be interrogating because entirely subjective undermine the “legitimate” reason would to articulate a unable Sei- Kennedy’s of his or her test established Justice advising suspect not for bert opinion. initial interro- Miranda rights prior to the there would approach, this gation. Under Moreover, legitimacy if the of an even when Justice never be an occasion almost an interrogating ap- officer’s actions were approach applicable.9 would be determining propriate consideration for intentionally is made whether the officer used a inevitability of this result The Miranda, two-step technique to undermine “[t]he states clear when nothing illegitimate there is about the rea- delay reason to intentional- only legitimate All put by Inspector a sons forth Hoti. ly a Miranda warning until after custodi- sought by Inspector the evidence Hoti is begun protect is to interrogation al has the Miranda beyond scope protec- pub- or the safety arresting officers United lic,” Although Capers’ pre-warning tion. state- Op. (citing at 481 Majority (2d Newton, 659, would not have been v. F.3d 677 ments admissible States 369 proceeding, him in a criminal In- Cir.2004)), exception against could because Hoti testified that he was not in- two-step interrogation spector apply never only procure in order to a inquiry terrogating cases. Elstad/Seibert Insteаd, seeking physi- he state- confession. was pre-warning into when play comes (the currency money or- by Miranda. In cases cal evidence ments are excluded ders) Capers’ about co- applies, and information safety exception public where the interrogating An offi- conspirator, Lopez. are ad- statements pre-warning even those of his suspect cer’s failure to advise missible, making entire Elstad/Seibert safety rights require suppres- does not unnecessary. public If the inquiry suspect’s fruits of the “legitimate” physical rea- sion of exception were States failing to unwarned statements. See United give an could for son that officer Patane, 2620, 124 S.Ct. rights of his advise provides to circumvent Miranda. 542 U.S. at scarcity subjective evidence no tial J., ignoring (Kennedy, concurring) justification for relevant S.Ct. 2601 124 (“[lit when it does exist. extravagant pres- evidence be to treat the would one that cannot be admitted ence of statement majority's could still find Although test prohibit reason to under Miranda as sufficient two-step technique was not intentional- that a by subsequent preceded proper statements interrogation pre-warning ly used when warning.”). example of Elstad is an such than the performed a different officer was per- pre-warning case—the interrogation, the second post-warning participated who also formed an officer interroga- not aware of the initial officer was Elstad, post-warning See confession. Carter, tion, see, e.g., F.3d at 301-02, S.Ct. 1285. Yet Justice U.S. at concurring opinion makes clear Kennedy's Kennedy that the Court’s decision not found that, performs when the same officer even post-warning statements in El- to exclude the interroga- pre- post-warning both the reasoning and its "was correct in its stad tions, illegitimate may that the a court find Seibert, 542 U.S. at result.” interrogation was not done pre-warning J., concurring). (Kennedy, two-step technique utilizing a purpose of (2004) (holding 159 L.Ed.2d 667 that physi- magistrate’s proposed findings on credibili ty cal evidence as a result of un- when findings obtained those dispositive are is not by judge’s warned statements excluded Mi- substitute the appraisal; own to do Morales, randa); seeing States v. so without hearing United 788 the witness Cir.1986) (2d (“The 883, F.2d or credibility 886 witnesses whose ques is in presumption of coercion has not tion give barred the could well rise ques to serious ”). unwarned, “[wjhere voluntary Furthermore, use of ... tions .... statements there ”). are permissible evidence, locate non-testimonial evidence.... two views of the Miranda, protects suspect’s And which court’s choice between them cannot be right against Fifth Amendment clearly self-in- deemed erroneous.” Maldonado- Rivera, crimination, protect not suspects does from 922 F.2d at (citing 972 Anderson v. making City C., statements that City, 564, incriminate other Bessemer N. such, 574, 105 1504, (1985)). individuals. As there nothing S.Ct. 84 L.Ed.2d 518 per illegitimate about asking Capers se These rules are not merely based on the Lopez whether was involved in the crimi- belief that the district court is posi better activity attempting nal or to determine tioned to make determinations of credibili (as ty location of physical evidence. well as more experienced at making determinations), such but also on pruden tial “[duplication concerns that of the trial Ill judge’s efforts the court of appeals In addition to improperly finding very likely that would contribute negligi Inspector proffered bly Hoti’s accuracy reasons for de- of fact determinаtion at laying the huge should cost in judicial not be diversion of re they Anderson, considered because legitimacy, lack sources.” 574-75, 470 U.S. at majority also finds that 105 those S.Ct. 1504. reasons lack credibility light when considered in The majority disregards the above limits objective Majority evidence. Op. at on the role appellate court, of an choosing Although 481-82. finding appears this to instead to reject the credibility determina- be entirely superfluous to the outcome of tions made the district court that appeal this majority’s based on the novel considers “dubious.” such a review While test, “legitimacy” 7, supra see note of the district credibility court’s determina- extent it is at all relevant to result tions is never appropriate, it particularly is reaches, majority improper it is an applica- problematic in this case where there is clearly tion of the erroneous standard. nothing Inspector Hoti’s testimony that is either contradicted the record evi- While a district findings court’s of fact dence or inherently unbelievable. As may be overturned this Court deter such, the given by reasons majority they mines that clearly erroneous, are are insufficient to satisfy the clearly erro- Court is not entitled to overturn a district standard, neous which requires this Court court’s assessment of credibility of a to have a “firm conviction that a mistake witness—an assessment which is the has been committed.” United States v. “providence of the district court.” United Iodice, (2d 179, Cir.2008). 525 F.3d Maldonado-Rivera, States v. 922 F.2d (2d Cir.1990); United States v. regard With to Inspector Hoti’s claim cf. Raddatz, U.S. n. that he had to determine whether Lopez (1980) (“[I]t 65 L.Ed.2d 424 scheme, unlike was involved and if he was ly that a district judge reject not, would him, release the majority states that explain fails to how those Hoti would Inspector it is dubious to leave this Court with Capers had facts are sufficient Lopez simply released have with nothing Inspector to do Hoti Lopez had “the firm conviction” said But Op. money at 481-82. Majority actually losing fear or- the theft. did not testimony sug- off, Hoti’s Inspector nothing the alarm went both When ders.10 Capers’ have taken he would gests Lopez were out Lo- and released at face value statements large sight, Hoti’s line of hidden behind those statements. entirely on based pez transportation of a mail in the back BMC Instead, testimony dem- Inspector Hoti’s (J.A. 64-65.) Inspector Hoti then truck. very little about that he knew onstrates ladder, a exit the lookout had to slide down custody. him into he took Lopez when observing Capers, and he had been where suspect prior to was a Although Capers building to the area where run around the arrest, Hoti had Inspector day the of his truck Lopez loading were the Capers and nothing about and knew Lopez never seen Lo- apprehend Capers he could and before (J.A. 62-63.) And day. that prior him to (J.A. 67.) Hoti Inspectors After and pez. certainly had Hoti although Inspector Lopez, the Capers handcuffed and Chow Lopez was to believe cause probable the truck entered the back of inspectors on evidence incident based involved Express they were able to find where arrest, day that evi- acquired money envelopes, but not the orders. Mail entirely glance of a from consisted dence (J.A. 67-68.) Hoti point, Inspector At that mail carrier the bulk Lopez towards office so Capers supervisor’s took (“BMC”) Express Mail en- сontaining the not Capers he ensure that was could in the truck presence velopes Lopez’s money orders —which able to hide the alarm went off. Capers when with equivalent both evidence and were 64-65.) (J.A. 62, per- have It would been facility. Given cash—somewhere Hoti to want Inspector fectly rational for circumstances, it have been en- would Lopez was suspicion his to confirm segre- Hoti to tirely Inspector rational for theft, if especially it was in the involved office and gate Capers supervisor’s absolutely Hoti knew Inspector true money retrieve the orders as attempt to observing nothing Lopez prior about possible.11 soon as day of the incident. him on the Hoti’s Inspector Because Hoti’s claim regard Inspector With (and certainly so im- entirely not plausible money to lose the not want that he did a “firm conviction plausible as to raise orders, that this claim is finds committed”), it has been that a mistake arresting testimony of the by the “belied the district court not clear error for Lopez were de- officers that met its bur- government to find that the envelope after the directly almost tained preponderance den of proving found either still sounded and were alarm Inspector Hoti did not delib- evidence that container, or in that immedi- storage in the erately But utilize vicinity.” Majority Op. at 482. ate Inspector Hoti losing be noted that It should Hoti’s fear of 10. Even simply money orders irrational, could have retrieved finding money that he orders was arrest, by performing a search incident did, fact, would that irrational belief hold run afoul of a search would not have such that he did not to show still be sufficient Nonetheless, rights. Capers' constitutional two-step interrogation tech- intend to utilize the issue of would not have resolved nique. Lopez’s involvement. Stevenson, Carmel, Ann Miranda. circumvent Ac- Lee Marc Jason technique to Riemer, LLP, Capers’ voluntary post-warning Yosef J. & Ellis cordingly, Kirkland excluded, IL, America, not be and Chicago, statements should for DBSD North the district court’s decision to exclude Incorporated. be reversed.12

statements should Leblanc, M. Rosenberg, Andrew Risa M. reasons, respectfully foregoing I For the Milbank, Tweed, LLP, Hadley McCloy & dissent. Washington, DC, for Ad Hoc Committee of

Senior Noteholders. Maryann A. Foudy, Gallagher,

Theresa Curtis, Reisman, Mallet-Prevost, J. Steven York, Colt & Mosle LLP, NY, New Official Committee of Unsecured Credi- AMERICA, In re NORTH DBSD tors. INCORPORATED, Debtor. Taylor, Jones, Jennifer Evan O’Melveny Corporation, Network Dish & LLP, Francisco, CA, Myers San for Creditor-Appellant, Syndications Loan Trading Associa- v. tion. America, Incorporated, DBSD North III, Handy Culver, Moser, John Eric Debtor-Appellee, Parrish, LLP, E. Felton K&L Gates Char- lotte, NC, Sprint Corporation. Nextel Ad Hoc Committee Senior Notehold- ers, Committee Official of Unsecured POOLER, Before: ROSEMARY S. Creditors, Creditors-Appellees. RAGGI, LYNCH,

REENA GERARD E. Sprint Corporation, Appellant, Nextel Judges. Circuit America, Inc., DBSD North Ad Hoc Noteholders, Committee Senior Of ORDER

ficial Committee of Unsecured Credi CONSIDERATION, DUE UPON IT IS tors, Appellees. ORDERED, ADJUDGED, HEREBY 10-1175, 10-1201, Docket Nos. 10-1352. AND DECREED judgment that the district court is AFFIRMED IN PART Appeals, United States Court of and REVERSED IN PART. The emer- Second Circuit. stay moot, gency is as VACATED and the Argued in tandem: 2010. Aug. to lift stay motion is DENIED as Dec. Decided: moot. Flics,

Martin N. Paul Byrne, Lawrence These consolidated appeals arise out of Hessler, LLP, York, S. Linklaters bankruptcy America, New North DBSD NY, for Dish Network ‍​​​​‌‌‌‌‌‌​​​‌‌​‌‌‌​​​​‌​‌​‌​​‌​​​‌​​​‌​‌‌‌​‌​‌​‍Corporation. Incorporated its various subsidiaries. 12. Because Hoti did deliberate- [were] not statements made." ly technique, utilize a J., (Kennedy, 124 S.Ct. 2601 concur- unnecessary to decide whether "curative ring). postwarning measures taken [were] before the

Case Details

Case Name: United States v. Capers

Court Name: Court of Appeals for the Second Circuit

Date Published: Dec 1, 2010

Citation: 627 F.3d 470

Docket Number: Docket 07-1830-cr

Court Abbreviation: 2d Cir.