11-324-cr United States v. Williams UNITED STATES COURT OF APPEALS 1 FOR THE S ECOND C IRCUIT 2

_____________________ 3 4 August Term, 2011 5 6 (Argued: March 5, 2012 Decided: May 17, 2012) 7 8 Docket No. 11-324-cr 9 10

_____________________ 11 12 UNITED S TATES OF AMERICA , 13 14 Appellant-Cross-Appellee , 15 16 v. 17 18 R OBERT S TEVEN B RODIE WILLIAMS , 19 20 Defendant-Appellee-Cross-Appellant

. 21 22

___________________ 23 24 Before: M C LAUGHLIN , B.D. PARKER , WESLEY , Circuit Judges

. 25 26 Appeal from an order of the United States District Court for the Southern District of New 27 York (Gardaphe, J. ) suppressing defendant’s station house confession to unlawful dealings in 28 firearms, following waiver of his Miranda rights. A Government agent had questioned 29 defendant two hours earlier in the apartment where he was arrested without first issuing Miranda 30 warnings. The district court suppressed the subsequent confession as the product of a deliberate, 31 two-stage interrogation technique barred byMissouri v. Seibert , 542 U.S. 600 (2004). 32 33 REVERSEDand REMANDED

. 34 35

___________________ 36 37 J USTIN ANDERSON , Assistant United States Attorney for 38 the Southern District of New York (Rachel P. 39 Kovner, Jesse M. Furman, Assistant United States 40 Attorneys, of counsel , on the briefs ), for Preet 41 Bharara, United States Attorney for the Southern 42 District of New York, New York, NY, for 43 Appellant-Cross-Appellee

. 44 451 Williams is charged with conspiracy to engage in unlicensed dealing of firearms, see18 U.S.C. §§ 371, 922(a)(1)(A), 922(a)(5), possession of a firearm after a felony conviction, see id. § 922(g)(1), and unlawful transportation of firearms, see id. § 922(a)(5).

2 M ELINDA S ARAFA , Sarafa Law LLC, New York, NY, 1 for Defendant-Appellee-Cross-Appellant

. 2 3 Anthony S. Barkow, Sara H. Mark, Center on the 4 Administration of Criminal Law at New York 5 University School of Law, New York, NY, for 6 Amicus Curiae the Center on the Administration of 7 Criminal Law at New York University School of 8 Law

. 9

______________________________________________________________________________ 10 11 B ARRINGTON D. PARKER , Circuit Judge : 12 This appeal arises out of the suppression of defendant Robert Williams’s station house 13 confession to unlawful dealings in firearms. 1 That confession followed an incriminating 14 statement made in response to brief questioning at the apartment where he was arrested earlier 15 that day. The confession followed Mirandawarnings; the earlier incriminating statement did 16 not. The United States District Court for the Southern District of New York (Gardaphe, J. ) 17 suppressed the station house confession as the product of a deliberate, two-stage interrogation 18 strategy barred byMissouri v. Seibert , 542 U.S. 600 (2004). Relying on this Court’s decision in 19 United States v. Capers , 627 F.3d 470 (2d Cir. 2010), the district court reasoned that the 20 admissibility of defendant’s station house confession turned on whether the decision to forego 21 Miranda warnings at the apartment was “legally justifiable.” United States v. Williams , 758 F. 22 Supp. 2d 287, 310 (S.D.N.Y. 2010). Finding that it wa s not, the district court suppressed the 23 station house confession. We conclude that the district court’s determination rested on a 24 misapplication of Capers . Accordingly, we reverse and remand for further proceedings. 253 BACKGROUND 1 2 In October 2009 Williams, along with his cousin Forenzo Walker, was arrested in a 3 Bronx, New York, apartment following the execution of a search warrant that led to the recovery 4 of four firearms. According to Williams’s subsequent confession, he, Walker, and a man named 5 Charles Smith had arrived in New York City the previous morning from Birmingham, Alabama. 6 Williams and Smith planned to sell thirteen guns they had procured in Alabama. 7 Williams was not the primary target of the search warrant; Smith was. For a year and a 8 half, officers of the Bureau of Alcohol, Tobacc o, Firearms and Explosives (“ATF”) and the New 9 York City Police Department (“NYPD”) had, based on the report of a confidential informant, 10 been investigating a man known to the informant as “Alabama” whom they suspected of buying 11 firearms in Alabama for resale in New York. J. A. at 135. On the day of defendant’s arrest, the 12 informant spotted “Alabama” and two other men selling firearms at the Bronx apartment, and 13 notified an NYPD detective. At the detective’s instruction, the informant returned to the 14 apartment and purchased a firearm from “Alabama” in the presence of the two other men. He 15 then reported to the detective that multiple firearms were being sold by the three men at the 16 apartment. 17 The detective relayed the information to ATF Special Agent Peter D’Antonio, who 18 prepared an application for a search warrant that was issued around 8:30 p.m. that evening. 19 D’Antonio, whom the district court found credible , testified at a suppression hearing that it was 20 important to obtain the search warrant promptly because 21 we had information that there was multiple firearms at the location being 22 sold by two or three of those individuals. And there were totaling over 10 23 firearms . . . . At that point, we wanted to get the firearms off the street. 244 We did not want them to get out of the apartment . . . [and] sold and used 1 for illegal purposes up there. 2 3 Id. at 239-240. 4 Law enforcement officers executed the search warrant at approximately 10:30 p.m. 5 NYPD personnel entered the apartment first and secured its four occupants: Williams, Walker, 6 and two women. Five ATF agents, including D’ Antonio and Special Agent Thomas Kelly, and 7 several more NYPD police officers, including Detective Hector Santiago, then entered the 8 apartment. They found Williams and Walker seated and handcuffed on the floor of the living 9 room. Four semi-automatic handguns and ammunition lay beside them. They also observed one 10 of the women “afraid” and “shaking” in the kitchen. Id. at 243. 11 On entering the apartment and observing the guns, D’Antonio asked Williams “whose 12 firearms they were?” Id. at 244. Williams responded “that the firearms were all his” and “that 13 he didn’t want to get his cousin [ – Walker – ] involved.” Id. Expecting to find closer to ten 14 firearms in the apartment, D’Antonio also aske d where the other firearms were, and where the 15 third gun trafficker was. The record indicates no response from Williams to these latter two 16 questions. 17 Following this brief questioning of Williams, D’Antonio, who is an ATF medic, turned 18 his attention to the frightened woman, whom he “saw was progressively getting a little worse.” 19 Id. at 245. After checking her vital signals, he requested an ambulance. Approximately an hour 20 later, following a search of the apartment, Williams was transported to the police station by 21 D’Antonio. 225 Once at the station house, D’Antonio took Williams to a small interview room containing 1 a desk and three to four chairs and removed the handcuffs. D’Antonio, in the presence of Kelly, 2 then read Williams, who was “relatively calm,” his Miranda rights, and he signed a form 3 waiving them. Id. at 251. At that point, nearly two hours after Williams had initially been 4 arrested, Kelly left the room and D’Antonio and Santiago proceeded to question him. 5 According to D’Antonio, Williams then gave a detailed statement. The statement 6 contained information on a range of incriminating activity in connection with his conspiracy 7 with Smith to buy guns in Alabama, transport them to New York, sell them, and divide the 8 proceeds. During the interrogation, Williams did not ask the officers to stop the questioning, nor 9 did he ask to speak to a lawyer. 10 When asked at the suppression hearing why he did not administer Williams Miranda 11 warnings before questioning him at the apartment, D’Antonio responded, “Because we were still 12 trying to find who we thought was [‘Alabama’]. We thought [he] would still be around and 13 would lead to multiple firearms that were not present at that location.” Id. at 244-245. When 14 asked by defense counsel, “I guess what you’re trying to do here is get the guns off the street, 15 right?” D’Antonio responded, 16 It’s a public safety issue at that point. We had information that there was 17 more than four guns, that there was approximately nine guns. And there 18 was one individual and approximately five guns that were not there, so we 19 were trying to mitigate the exposure to any other violence by trying to 20 locate those additional five guns. 21 22 Id. at 301. 23 D’Antonio further testified that he viewed the station house interrogation as “a separate 24 interview from the one [he] conducted in the apartment,” not as “a continuation” of it: 252The Government does not appeal the exclusion of Williams’s statement in the Bronx apartment acknowledging ownership of the four guns recovered there.

6 [T]he interview at the [] station house was the formal interview of Mr. 1 Williams. . . . That was where we sat down with the individual, advised 2 him of his rights, gave him the opportunity to either waive them or not and 3 to speak with me if he chose to or not at that point. . . . [The purpose] was 4 also . . . to establish evidence against the defendant at that point. And, 5 also, to attempt to locate the individual that the defendant calls Charles 6 Smith. And to try to locate him and the additional firearms. 7 8 Id. at 317-318. 9 Following his indictment, Williams moved to suppress his station house confession as the 10 product of a two-step interrogation practice proscribed by Missouri v. Seibert , 542 U.S. 600 11 (2004). In Seibert arresting officers were taught to intentionally omit Mirandawarnings until 12 their interrogation produced a confession, administer the warnings, and then question the 13 defendant based on his pre-Miranda confession, in order to get him to restate it. Id. at 605-06. 14 Williams argued that D’Antonio was required to administer Mirandawarnings prior to 15 questioning him in the apartment and that, under Seibert , his failure to do so required 16 suppression of the later “step two” station house confession. 2 17 The Government contended in response that D’Antonio had not employed the two-step 18 technique barred by Seibert . It further argued that the public safety exception to Miranda 19 justified D’Antonio’s asking immediate questions “aimed at determining whether there had 20 indeed been an additional gun-seller on the premises; whether the people responsible for the 21 firearms that the officers had found [were] among those secured in the apartment or [were] 22 instead elsewhere; and where the additional male they had expected to find was.” J.A. at 404; 237 see New York v. Quarles , 467 U.S. 649, 655-56 (1984) (establishing public safety exception to 1 Miranda ). 2 Initially, the district court offered its view that, while the public safety exception might 3 excuse D’Antonio’s questions about the location of the missing guns and the third trafficker, his 4 inquiry about who owned the guns “stepped outside the public safety exception . . . into a 5 situation where the agent [wa]s trying to elicit an incriminating statement.” J.A. at 435. 6 Regardless, the district court 7 [didn’t] think the record would support a finding that [] D’Antonio 8 pursued a deliberate strategy of trying to elicit incriminating statements 9 that he could then use later to cross-examine the defendant after 10 administering Miranda warnings. I don’t see that deliberate strategy. . . . 11 I didn’t come away with an impression from the [suppression] hearing that 12 [] D’Antonio’s conduct here is similar to what was at issue in Seibert , 13 which was a deliberate policy and strategy of eliciting incriminating 14 statements without Miranda warnings with a plan to then later administer 15 Miranda warnings and elicit those same incriminating statements. I didn’t 16 find that kind of deliberate strategy here. . . . I don’t think the case is 17 controlled by Seibert

. 18 19 Id. at 436-437. 20 Notwithstanding this conclusion, the district court granted defendant’s motion to 21 suppress, concluding that it was “constrained” by this Court’s subsequent decision in Capers to 22 do so: 23 Caperssets a high standard for the admission of a second-stage confession 24 following a Mirandaviolation. The implications of the decision are quite 25 broad. . . . The effect of Capers. . . is to take [ Seibert] beyond “the 26 unique and never-again-to-be-repeated circumstances of Seibert ,” and to 27 apply it to a much broader category of cases. This result is the 28 consequence of [Capers’s] . . . requirement that law enforcement officers 29 proffer a legitimate reason for not giving Mirandawarnings during the 30 first interrogation . While [ Seibert ’s] test focuses on whether law 31 enforcement officers acted with premeditation to undermine a Miranda 328 warning they planned to give later – a test quite difficult for a defendant to 1 meet – [Capers’s] inquiry turns on whether the decision to forego 2 Mirandawarnings is legally justifiable . It is plain from Capersthat this 3 will almost never be the case. 4 5 Williams , 758 F. Supp. 2d at 309-10 (emphasis added) (citations omitted) (quoting Capers , 627 6 F.3d at 483). The district court reasoned th at because D’Antonio’s unwarned questioning of 7 Williams about ownership of the guns did not fall within the public safety exception to Miranda , 8 but was instead intended to elicit an incriminating testimonial response, D’Antonio had no 9 “legitimate reason” under Capersto delay the Miranda warnings. Id. at 311-12. Moreover, 10 because objective evidence also pointed toward use of a deliberate two-step technique, and 11 because no “curative measures intervened to restore the defendant’s opportunity voluntarily to 12 exercise his Miranda rights,” Williams’s waiver of those rights “was invalid,” warranting 13 suppression of his confession. Id. at 312 (quotation marks omitted). The Government appealed. 14 STANDARD OF REVIEW 15 We review a district court’s determination regarding the constitutionality of a Miranda 16 waiver de novo , and its factual findings for clear error, viewing the evidence in the light most 17 favorable to the prevailing party. United States v. Moore , 670 F.3d 222, 226 (2d Cir. 2012). 18 DISCUSSION 19 The Government’s main contention is that the district court erred in suppressing 20 Williams’s station house confession as the product of a deliberate two-step interrogation 21 strategy. In Seibert , the Supreme Court found unconstitutional “a police protocol for custodial 22 interrogation that calls for giving no warnings of the rights to silence and counsel until 23 interrogation has produced a confession.” 542 U.S. at 604 (plurality opinion). The “manifest 249 purpose” of such a protocol, a plurality of the Court explained, is to get a confession at the 1 outset, because “with one confession in hand before the warnings, the interrogator can count on 2 getting its duplicate, with trifling additional trouble.” Id. at 613. This technique, according to 3 the plurality, evinced a police strategy adapted to undermine the effectiveness of the warnings 4 when given. Id. at 616, 613. To determine whether such “warnings delivered midstream” could 5 be effective, the Seibert plurality cited to five factors: 6 [1] the completeness and detail of the questions and answers in the first 7 round of interrogation, [2] the overlapping content of the two statements, 8 [3] the timing and setting of the first and the second, [4] the continuity of 9 police personnel, and [5] the degree to which the interrogator’s questions 10 treated the second round as continuous with the first. 11 12 Id. at 615. 13 While concurring in the judgment, Justice Kennedy believed the plurality’s “objective 14 inquiry from the perspective of the suspect” – which “applies in the case of both intentional and 15 unintentional two-stage interrogations” – cut too broadly. Id. at 621-22. He advanced a 16 narrower test applicable only in the “infrequent case . . . in which the two-step interrogation 17 technique was used in a calculated way to undermine the Miranda warning” and no curative 18 measures were taken to ensure that a reasonable person in the suspect’s situation would 19 understand the import and effect of the Mirandawarning and of the Mirandawaiver. Id. at 622. 20 Describing the circumstances in which it would be “extravagant” to conclude that a deliberate 21 two-step technique had been used, he explained that 22 [a]n officer may not realize that a suspect is in custody and warnings are 23 required. The officer may not plan to question the suspect or may be 24 waiting for a more appropriate time . Skilled investigators often interview 25 suspects multiple times, and good police work may involve referring to 26 prior statements to test their veracity or to refresh recollection. 273 Elstad involved an accidental or mistaken interrogation in violation of Miranda

. See470 U.S. at 314. Under Elstad, “[a] subsequent administration of Mirandawarnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.” Id. ; see also id. at 318 (“[T]here is no warrant for presuming coercive effect where the suspect’s initial inculpatory statement, though technically in violation of Miranda , was voluntary.”).

10 Id. at 620 (emphasis added). In the absence of a finding of deliberateness, Justice Kennedy 1 believed, the admissibility of any subsequent statement should continue to be governed by the 2 principles of Oregon v. Elstad, 470 U.S. 298 (1985), which looks solely to whether the 3 statements were knowingly and voluntarily made, see id. at 309. 3 Seibert , 542 U.S. at 622. 4
In United States v. Carter, 489 F.3d 528 (2d Cir. 2007), we joined our sister circuits in 5 regarding Justice Kennedy’s concurrence in Seibert as controlling. We concluded that Seibert 6 lays out an exception to Elstad for cases in which a deliberate, two-step strategy was used to 7 obtain the postwarning confession. Id. at 536. In Capers , we further joined our sister circuits in 8 concluding that a court should review “the totality of the objective and subjective evidence 9 surrounding the interrogations in order to determine deliberateness.” 627 F.3d at 479. Finally, 10 we held that the Government bears the burden of disproving by a preponderance of the evidence 11 that it employed a deliberate two-step strategy. Id. at 480. 12 Applying these principles, we hold that the Government has established, in light of the 13 objective and subjective evidence, that D’Antonio did not engage in a deliberate two-step 14 interrogation. There is no subjective evidence that D’Antonio asked Williams about the 15 ownership of the guns, or the location of the missing guns or third gun trafficker, in a way 16 calculated to undermine the Miranda warning given later at the station house. Crucially, the 17 district court, which credited D’Antonio’s testimony, reached the same conclusion prior to our 1811 opinion in Capers

. SeeJ.A. at 436 (“I don’t think the record would support a finding that [] 1 D’Antonio pursued a deliberate strategy of trying to elicit incriminating statements that he could 2 then use later to cross-examine the defendant after administering Mirandawarnings.”). 3 Instead, “public safety considerations plausibly account” for D’Antonio’s limited 4 questioning of Williams at the apartment “in a way that militates against finding that the first 5 interview was a premeditated attempt to evade Miranda .” Moore , 670 F.3d at 231. D’Antonio 6 asked Williams three questions within a minute of entering an apartment that had only moments 7 earlier been secured by NYPD personnel. Observing only four guns on the floor when he 8 expected to find somewhere closer to nine or ten, and only two men handcuffed when he 9 expected to find three, D’Antonio asked (somewhat imprecise) questions to determine the 10 location of the missing guns and the third trafficker. In this context, his question about who 11 owned the guns is most plausibly understood as an attempt to ascertain which man was 12 “Alabama” – the primary target of the search warrant and the man whom law enforcement agents 13 had been investigating for a year and a half. Had Williams denied his (or Walker’s) ownership 14 of the guns, D’Antonio may have been able to conclude that neither man was his target, and that 15 his search for “Alabama” should continue. Instead, Williams claimed ownership of the guns, 16 leading to the logical inference that he might be “Alabama,” and prompting reasonable followup 17 questions about the location of the other guns and the third trafficker. 18 We are not required to decide whether the public safety exception actually excused this 19 line of questioning. The point is that none of it evinced “a deliberate strategy of trying to elicit 20 incriminating statements that [D’Antonio] could then use later to cross-examine the defendant 21 after administering Miranda warnings,” as the district court properly found. J.A. at 436; see also 2212 United States v. Estrada , 430 F.3d 606, 612 (2d Cir. 2005) (noting that “precision crafting 1 cannot be expected in the circumstances of a tense and dangerous arrest” (quotation marks and 2 brackets omitted)); cf. Capers , 627 F.3d at 481 (finding postal inspector’s proffered reasons for 3 questioning defendant incredible where arrest followed a full day of surveillance during which 4 the inspector “had time to think through what procedural steps he would need to take following 5 arrest in order to build his case for prosecution”). Instead, it suggests that D’Antonio was simply 6 “waiting for a more appropriate time” formally to question Williams. See Seibert , 542 U.S. at 7 620. This is especially so where, after questioning Williams, D’Antonio immediately turned his 8 attention to another public safety concern, the health of one of the women in the apartment. 9 In concluding that Williams’s station house confession must nonetheless be suppressed, 10 the district court relied on the mistaken belief that Capers changed the focus of the Seibert 11 inquiry from whether law enforcement officers acted with premeditation to undermine a 12 Mirandawarning they planned to give later, to whether the decision to forego Mirandawarnings 13 was “legally justifiable.” See Williams , 758 F. Supp. 2d at 310. In Capers , the defendant was 14 caught in a sting operation stealing money orders from Express Mail envelopes. 627 F.3d at 15 472-73. After Capers and another individual werehandcuffed, arrested, and separated, a postal 16 inspector instructed Capers to follow him into a supervisor’s office and said 17 something like, look, you know, talk to me or don’t talk to me, I don’t care 18 but I’m telling you right now or I’ll tell you that I’m going to do my best 19 to make you go away, and I just want you to know. And I’ve been 20 watching you all day. I know everything that you did tonight. 21 22 Id. at 472 (quotation marks omitted). Without issuing Miranda warnings, the inspector 23 continued to question Capers for around five minutes. Capers incriminated himself and, after 2413 being transported to another facility where he was advised of his rights and interviewed again by 1 the same postal inspector, incriminated himself again. At a subsequent suppression hearing, the 2 inspector testified that he did not issue Mirandawarnings in the supervisor’s office because he 3 was in a hurry to track down the missing money orders so that they did not 4 get lost in the large mail-sorting facility and . . . needed to question [the 5 other individual], who was held handcuffed outside the supervisor’s 6 office, to determine his level of involvement in the crime. 7 8 Id. at 473. 9 We affirmed the district court’s suppression of both sets of statements. We observed that 10 neither of these reasons justified delaying a Miranda warning once it is obvious that a suspect is 11 in custody. In addition, we found the inspector’s proffered reasons for delaying the Miranda 12 warnings not credible. Capers , however, does not stand for the proposition that the Government 13 must show that a delay in issuing Miranda warnings was for a “legitimate” reason, as the district 14 court erroneously concluded. Rather, after expressly adopting Justice Kennedy’s concurrence in 15 Seibert , Caperssets forth the general test that in order to determine deliberateness “a court 16 should review the totality of the objective and subjective evidence surrounding the 17 interrogations.” Id. at 479. Caperssimply counsels that, in reviewing the subjective evidence, 18 “closer scrutiny” should be given to an “investigator’s testimony . . . when the proffered 19 rationale is not a ‘legitimate’ reason to delay or where it ‘inherently lacks credibility’ in view of 20 the ‘totality of the circumstances.’” Moore , 670 F.3d at 229 (quoting Capers , 627 F.3d at 484 21 n.5). As we clarified in Moore , 22 [s]uch scrutiny is not ordinarily required when the reason for delay is 23 legitimate, such as officer or community safety or when delay is a product 24 of a “rookie mistake,” miscommunication, or “a momentary lapse in 25 judgment.” Moreover, if it is found, after weighing the investigator’s 2614 credibility, that the investigator’s intent was not “calculated . . . to 1 undermine Miranda ,” delay will not require exclusion of the later, warned 2 statement even if the court finds that the delay was for an illegitimate 3 reason and even in the absence of curative measures

. 4 5 Id. (emphasis added) (citations omitted) (quoting Capers , 627 F.3d at 482). 6 That is what happened here: The district court found D’Antonio’s reasons for 7 questioning Williams about ownership of the guns “illegitimate” under Capers , because the 8 questioning was neither justified by the public safety exception, nor explained by a “rookie 9 mistake.” See Williams , 758 F. Supp. 2d at 311 (observing that D’Antonio is “a highly 10 experienced law enforcement officer” who “did not contend that his failure to give Miranda 11 warnings was the result of mistake or inadvertence”). Nevertheless, the district court found 12 D’Antonio credible, and that he was not intentionally undermining Miranda . In these 13 circumstances, absent objective evidence of such an intention, D’Antonio’s delay in issuing 14 Miranda warnings does not require exclusion of the later, warned statement even if the public 15 safety exception did not excuse the delay. 16 On this point, Mooreis instructive. There, we affirmed the district court’s denial of a 17 motion to suppress second-stage statements where an officer had previously asked a defendant – 18 known to have been involved in a shooting inci dent from which no gun was recovered – where 19 the gun was. As here, the district court ruled that the public safety exception did not excuse the 20 officer’s failure to give Miranda warnings at the initial interview. Nevertheless, we held, 21 “public safety considerations plausibly account[ed] for the conduct of the police in a way that 22 militates against finding that the first interview was a premeditated attempt to evade Miranda .” 2315 670 F.3d at 231. In affirming the district court, we emphasized that its holding regarding the 1 public safety exception 2 rested on a lack of exigent circumstances, not on any adverse credibility 3 finding regarding the testimony of [the officer] . Although [the officer’s] 4 stated public safety rationale was insufficient to render Moore ’s first 5 statement admissible under the public safety exception to Miranda , it was 6 sufficient, “in light of the totality of the circumstances,” to show that [the 7 officer] did not intend to circumvent Mirandawith this unwarned 8 questioning. Under Capers , therefore – even in the absence of one of the 9 recognized “legitimate” reasons for delaying Mirandawarnings – [the 10 officer’s] rationale does not bar admission of the second warned, 11 statement, regardless of whether curative measures were undertaken. 12 13 Id. at 231 n.5 (emphasis added) (citations omitted) (quoting Capers , 627 F.3d at 484 n.5). The 14 same logic holds here. 15 The objective evidence also weighs against a finding of deliberateness. In reviewing that 16 evidence, we are guided by, but not limited to, the five factors identified by the plurality in 17 Seibert

. Id. at 230. First , the questions and answers in the first round of interrogation were 18 neither complete nor detailed. D’Antonio asked a total of three questions to which Williams 19 responded with a sole incriminating response: that he owned the four guns. The two-stage 20 interrogation strategy described in Seibert , by contrast, was “systematic, exhaustive, and 21 managed with psychological skill,” leaving “little, if anything, of incriminating potential left 22 unsaid.” Seibert , 542 U.S. at 616. Here, the initial questioning was “brief and spare,” focused 23 on locating the missing firearms and gun trafficker. See Moore , 670 F.3d at 231; see also 24
Carter, 489 F.3d at 536 (finding no deliberate two-step strategy where, half an hour after 25 executing search warrant, officer asked defendant“only one question” regarding contents of 264 Compare Seibert , 542 U.S. at 605 (suppressing confession where the first- and second-stage confessions occurred in same place with only twenty minute break between), and Capers , 627 F.3d at 483 (affirming suppression where, although “the location of the interrogation sessions changed, . . . the

16 recovered bag of narcotics and defendant’s respons e – that it was “‘[b]ad coke’” – was “the only 1 incriminating statement” made by defendant before receiving Mirandawarnings). 2 Second, Williams’s statements at the apartment and at the station house did not 3 “appreciably overlap.” Moore , 670 F.3d at 231. Williams’s sole statement at the apartment tied 4 him to ownership of four guns. By contrast, hi s full confession at the station house explained in 5 detail the history, operation, and profit-sharing arrangements of his conspiracy with Smith, and 6 elaborated significantly on his earlier statement. See Carter, 489 F.3d at 536 (finding “almost no 7 overlap” between single incriminating statement and “full confession [defendant] gave after he 8 received the warnings”). As D’Antonio testified, the interview at the station house was the 9 formal interview with Williams and was aimed at giving him “the ability to express what 10 happened” and obtaining evidence against him. J.A. at 189. Williams was not led “to cover the 11 same ground a second time” – the type of objective evidence that raises Seibert deliberateness 12 concerns because it suggests a focused attempt to make the defendant feel locked into his 13 recently elicited inculpatory statements. Seibert , 542 U.S. at 604. That the station house 14 interrogation, like the questioning at the apartment, also focused on the location of the missing 15 guns and Smith’s whereabouts is unsurprising given that both Smith and the guns remained 16 missing. 17 Third, although there was some continuity of personnel between the apartment and the 18 station house – namely, D’Antonio, Kelly, and Santiago – the timing and setting of the first and 19 second statements do not suggest deliberate use of a two-step technique. 4The initial questioning 20inquisitorial environment of th e questioning was consistent”), with Elstad, 470 U.S. at 302-03 (defendant’s initial statement in his home did not “let the cat out of the bag” or “taint[]” his subsequent station house confession), and Carter, 489 F.3d at 536 (rejecting suppression where “first remark was made to [an officer] at [defendant’s] store, while the full confession was made . . . at the ATF office over an hour later”).

17 took place during the execution of a warrant in a residential setting and was spontaneous and 1 somewhat frenzied. D’Antonio questioned Williams almost immediately upon entry, just after it 2 had been secured by NYPD personnel. Moments later, D’Antonio requested an ambulance after 3 one of the women in the apartment was found shaking in the kitchen. An hour-long search of the 4 premises followed. The second interrogation took place in a small room at the station house 5 almost two hours later. In contrast to the atmosphere in the apartment, at the station house 6 Williams was calmly seated across a table from D’Antonio and Santiago, uncuffed, and 7 volunteered a full confession. 8 Fourth , none of D’Antonio’s questions, and nothing in the record, indicates that he 9 treated the second round as continuous with the first. The quintessential two-step technique 10 involves a suspect’s “hearing warnings only in the aftermath of interrogation and just after 11 making a confession,” with the police “lead[ing] him over the same ground again.” Seibert , 542 12 U.S. at 613. Here, almost two hours separated the two interviews. And nothing in the record 13 suggests that the latter session was essentially a cross-examination using information gained 14 during the first round of interrogation. 15 For these reasons, we conclude that the Government has met its burden of demonstrating 16 that it did not engage in a deliberate two-step process intended to undermine Williams’s Fifth 17 Amendment rights. 1818 Finally, we conclude that Williams’s statements were provided voluntarily and free of 1 coercion. Elstad, 470 U.S. at 318. “A confession is not voluntary when obtained under 2 circumstances that overbear the defendant’s will at the time it is given.” United States v. 3 Anderson , 929 F.2d 96, 99 (2d Cir. 1991). This record reflects no such circumstances. The 4 brevity and focus of D’Antonio’s initial questioning, the near two-hour passage of time between 5 interviews, and the contrast in setting between the apartment and the station house belie 6 coercion. More importantly, the parties do not dispute that Williams knowingly and voluntarily 7 waived his right to remain silent before the station house confession. These facts, especially the 8 waiver, are “highly probative” of voluntariness. See Elstad, 470 U.S. at 318. For these reasons, 9 we conclude that Williams’s statements to D’Antonio at the station house may be admitted at 10 trial. 11 CONCLUSION 12 The order of the district court suppressing defendant’s station house confession is 13 reversed and the case remanded for further proceedings consistent with this opinion. 14