IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-50725

Consolidated with 20-50395

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee,

v.

MODESTO GONZALEZ III, also known as Tres, 

 Defendant–Appellant.

Appeals from the United States District Court

for the Western District of Texas

USDC No. 1:18-CR-64-1

Before BARKSDALE, HAYNES, and WILLETT, Circuit Judges. 

PER CURIAM:*

Modesto Gonzalez III appeals his convictions for wire fraud and unlawful 

possession of a firearm by a felon. Specifically, Gonzalez argues that his 

statements to law enforcement officers were obtained illegally and should have 

been suppressed. We disagree and affirm.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 8, 2020

Lyle W. Cayce

Clerk

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I

In January 2018, state and federal agents executed a federal search 

warrant at Gonzalez’s home. The warrant authorized officers to seize evidence 

of Gonzalez’s two suspected crimes: (1) defrauding illegal aliens by falsely 

claiming to be a federal agent capable of providing immigration assistance in 

exchange for substantial payments, and (2) illegally possessing firearms and

ammunition as a felon.

Prior to executing the search warrant, the agents discussed their 

approach. They planned to knock on Gonzalez’s door and wait for a response 

rather than use force to enter. DEA Agent Piekenbrock, who was responsible 

for the impersonation investigation, told the other agents that he “was going 

to try to interview [Gonzalez], but that was obviously no guarantee.” 

Piekenbrock did not intend to provide Gonzalez with a Miranda warning before 

such an interview because he did not plan to arrest him that day.

Around 7:10 a.m., “between eight and ten” agents arrived at Gonzalez’s 

home to execute the warrant. Their clothing identified them as law 

enforcement, but they were not wearing tactical clothing and did not have their 

weapons drawn.

Piekenbrock, accompanied by other agents, knocked on the front door.

Gonzalez answered. After a brief discussion with the agents, he stepped onto 

the porch. Gonzalez was “upset” and “immediately agitated.” He loudly said, 

“[l]et’s get going and let’s just get this over with,” that the agents were “going 

to get [his] family killed,” that the agents should “take [him], and . . . go,” used 

profanity, and appeared to be “about to start a fight.” The agents, by contrast, 

maintained a “[m]easured” and calm tone.

The agents told Gonzalez that they came to execute a search warrant—

not an arrest warrant. But Gonzalez was still agitated. Due to his “aggressive 

behavior,” agents handcuffed Gonzalez and temporarily seated him on a chair 

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on the porch. Soon thereafter, agents moved Gonzalez to a chair next to the 

stairs leading to the front door of his home to reduce crowding near the 

doorway. Piekenbrock informed Gonzalez that he was not under arrest at that 

time. Gonzalez’s stepfather, who was not handcuffed or otherwise restrained, 

sat next to him on another chair.

About fifteen minutes after Gonzalez was seated next to the stairs, a

supervisor informed Gonzalez that if he remained seated and calm, the 

handcuffs would be removed. And then they were. Gonzalez had been 

handcuffed for about twenty minutes. He remained seated near the stairs 

while his home was searched. During the search, agents recovered, among 

other things, a loaded revolver from Gonzalez’s bedroom and two shotguns that 

had been mounted on the living room wall.

About thirty to forty minutes after the handcuffs were removed, 

Piekenbrock and two other agents asked Gonzalez if he would be willing to 

speak with them. Gonzalez agreed. So, the agents and Gonzalez walked about

forty feet to Piekenbrock’s vehicle to talk. Piekenbrock sat in the driver’s seat, 

Gonzalez sat in the front passenger seat, and the other two agents sat in the 

back seat. Piekenbrock did not lock the doors. He turned the vehicle and its

heater on but partially opened the vehicle’s windows. During their 

conversation, the agents’ tone remained “[m]easured,” and “very professional.” 

And the agents never drew their weapons.

Initially, Piekenbrock reminded Gonzalez that he was not under arrest 

and that they only had a search warrant. Then Piekenbrock questioned 

Gonzalez regarding his impersonation scheme. Gonzalez admitted that he had 

committed “fraud” by taking hundreds of thousands of dollars from illegal 

aliens after falsely promising to get their immigration status adjusted, though 

he framed his actions as “something similar to a loan.” During this roughly 

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thirty-five-minute discussion, Gonzalez volunteered information without being 

prompted to do so. He also consented to a search of his cell phone.

Next, Agent Flores of the Bureau of Alcohol, Tobacco, Firearms and 

Explosives—who was in the back seat of the vehicle—questioned Gonzalez 

about the shotguns and revolver recovered from his home. Gonzalez admitted 

that he had mounted those shotguns on his living room walls and that his 

fingerprints would likely be found on them. Plus, Gonzalez admitted that he

had bought the loaded revolver from a member of the Aryan Brotherhood. 

At this point, about forty minutes into the interview, Piekenbrock

“stopped the interview” because Gonzalez’s admission about the revolver 

“changed things” and could result in Gonzalez’s arrest that day. So

Piekenbrock provided him Miranda warnings. Gonzalez did not request a 

lawyer. Instead, Gonzalez acknowledged that he understood his rights, waived 

them, and agreed to continue the questioning. This post-Miranda interview 

lasted less than fifteen minutes. Gonzalez repeated his statements about the 

impersonation scheme and the recovered firearms. The agents never 

confronted Gonzalez with his pre-warning statements. At no point during the 

pre- or post-warning interview did Gonzalez ask to stop the questioning, to 

leave the vehicle, or for an attorney. And agents repeatedly told Gonzalez that 

he was not under arrest.

In response to Gonzalez’s post-warning statements, Flores called an 

Assistant U.S. Attorney for legal advice regarding how to proceed and whether 

to arrest Gonzalez for being a felon in possession of a firearm. It was agreed 

that Gonzalez would be criminally charged with illegal firearms possession. 

So, Flores explained to Gonzalez that he would be arrested. Then Gonzalez was 

removed from the vehicle, handcuffed, and returned to the vehicle for transport 

to jail.

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A grand jury charged Gonzalez in a one-count indictment with being a 

felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Gonzalez moved to 

suppress all his statements, arguing that the agents had intentionally 

conducted a prohibited, two-step interrogation to avoid Miranda’s 

requirements. The district court held a hearing at which both Piekenbrock and 

Flores testified. Following this hearing, the district court denied Gonzalez’s

motion to suppress. The court concluded that (1) Gonzalez was not in Miranda

custody when the pre-Miranda interview occurred; (2) the agents had not 

deliberately employed a two-step strategy to undermine the warning; and (3)

Gonzalez’s statements were voluntary.

After the denial of his motion to suppress, Gonzalez entered into a 

conditional plea agreement with the Government. Gonzalez pled guilty to the 

felon-in-possession charge, and he waived his right to an indictment and pled

guilty to an information charging wire fraud, in violation of 18 U.S.C. § 1343.

He was sentenced to 120 months’ imprisonment. Under the plea agreement, 

Gonzalez reserved the right to appeal the judgment for the limited purpose of 

securing appellate review of the district court’s denial of his motion to 

suppress. Gonzalez timely appealed.

II

“In an appeal from a district court’s ruling on a motion to suppress, this 

Court reviews factual findings in support of the ruling under the clearly 

erroneous standard and legal conclusions de novo.” United States v. Cavazos, 

668 F.3d 190, 193 (5th Cir. 2012). “Our review is particularly deferential where 

denial of the suppression motion is based on live oral testimony because the 

judge had the opportunity to observe the demeanor of the witnesses.” United 

States v. Lim, 897 F.3d 673, 685 (5th Cir. 2018) (cleaned up). “The evidence is 

viewed in the light most favorable to the party who prevailed in the district 

court.” Cavazos, 668 F.3d at 193. In this case, that party is the Government.

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“The question of whether Miranda’s guarantees have been 

impermissibly denied to a criminal defendant, assuming the facts as 

established by the trial court are not clearly erroneous, is a matter of 

constitutional law, meriting de novo review.” United States v. Harrell, 894 F.2d 

120, 122–23 (5th Cir. 1990); see also, e.g., United States v. Chavira, 614 F.3d 

127, 132 n.7 (5th Cir. 2010).

III

Gonzalez argues that the district court erred in refusing to suppress the 

statements he made (1) prior to receiving Miranda warnings (because he 

claims the agents conducted a custodial interrogation without giving him

Miranda warnings), and (2) after receiving Miranda warnings (because he 

claims the agents acted deliberately to circumvent the protections of Miranda 

by conducting a prohibited, two-step interrogation).

“Miranda warnings must be administered prior to ‘custodial

interrogation.’” United States v. Bengivenga, 845 F.2d 593, 595 (5th Cir. 1988) 

(en banc). But Miranda warnings are not required if an interrogation is noncustodial. Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam); United 

States v. Garcia, 77 F.3d 857, 859 (5th Cir. 1996). Gonzalez argues that he was 

in Miranda custody when agents initially interviewed him. But after reviewing 

“[t]he totality of the circumstances surrounding Gonzalez’s interview,” the 

district court determined that he was not in Miranda custody when he made 

his unwarned statements. We find no error in this conclusion.

To determine whether someone not formally arrested was in Miranda 

custody, we must first “ascertain whether, in light of the objective 

circumstances of the interrogation,” Howes v. Fields, 565 U.S. 499, 509 (2012)

(internal quotation marks omitted), “a reasonable person [would] have felt he 

or she was not at liberty to terminate the interrogation and leave.” Id. (quoting 

Thompson v. Keohane, 516 U.S. 99, 112 (1995)) (internal quotation marks 

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omitted). In other words, we must determine whether “a reasonable person in 

the suspect’s position would have understood the situation to constitute a 

restraint on freedom of movement of the degree which the law associates with 

formal arrest.” Bengivenga, 845 F.2d at 596. “The reasonable person through 

whom [a court is to] view the situation must be neutral to the environment and 

to the purposes of the investigation . . . .” Id.

“[W]hen analyzing whether an individual was or was not in custody,” we 

have “repeatedly considered certain key details,” such as (1) “the location of 

the questioning,” (2) “the amount of restraint on the individual’s physical 

movement,” (3) any “statements made by officers regarding the individual’s 

freedom to move or leave,” (4) “the accusatory, or non-accusatory, nature of the 

questioning,” and (5) “the length of the questioning.” United States v. Wright, 

777 F.3d 769, 775 (5th Cir. 2015) (collecting cases).

If the court concludes that “an individual’s freedom of movement” was so 

“curtailed,” then it must “ask[] the additional question whether the relevant 

environment present[ed] the same inherently coercive pressures as the type of 

station house questioning at issue in Miranda.” Howes, 565 U.S. at 509.

A

Here, the district court did not err by first concluding that a reasonable 

person in Gonzalez’s position would not have understood the circumstances in 

which he was interviewed to be a restraint on his or her freedom of movement 

to the degree associated with a formal arrest.

Turning first to the location of the questioning, Gonzalez was 

interviewed in an agent’s vehicle, as was the defendant in Wright. See 777 F.3d 

at 777. Gonzalez sat in the front seat of the vehicle, not the back seat where 

arrestees usually sit. The interview occurred on Gonzalez’s property and 

within forty feet of his home rather than a secondary, off-site location. 

Gonzalez could see and be seen by his family—meaning the vehicle was subject

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to “public scrutiny.” See id. Thus, the location of the interview suggests that a

reasonable person in Gonzalez’s position would not have understood the

situation to constitute a restraint on freedom of movement equivalent to formal 

arrest. See id. at 771, 777 (concluding that defendant was not in custody where, 

while executing a search warrant, two officers interviewed him in a police 

vehicle about thirty feet from his home, defendant sat in the front seat, and 

the vehicle was subject to public scrutiny).

Similarly, the amount of restraint on Gonzalez’s physical movement also 

suggests that a reasonable person would not equate it with formal arrest. The 

doors of the vehicle were unlocked, and the windows were partially open.

Notably, Gonzalez was not handcuffed or otherwise restrained during the 

interview. Cf. Chavira, 614 F.3d at 134 (finding that defendant’s freedom of 

movement was severely restrained where agents confiscated her birth 

certificate and state identification and handcuffed her to a chair during the 

interrogation). Although Gonzalez was briefly handcuffed earlier that 

morning, the interview occurred thirty to forty minutes after the handcuffs 

were removed. Unlike in Cavazos, where agents “ran into Cavazos’s bedroom . 

. . and handcuffed him as he was stepping out of bed,” 668 F.3d at 192, as the 

district court concluded, no evidence suggests “that Gonzalez was handcuffed 

for any reason other than his belligerency.” Gonzalez “calmed down” after 

speaking with his stepfather, so agents removed the handcuffs. He had only 

been handcuffed for about twenty minutes, and agents had informed Gonzalez

before and while he was handcuffed that he was not under arrest. So, the 

earlier, temporary handcuffing does not negate the lack of physical restraint 

of Gonzalez during the interview. See United States v. Salinas, 543 F. App’x 

458, 465 (5th Cir. 2013) (per curiam) (explaining that “temporary detention by 

itself” does not “automatically rise to the level of custodial interrogation”); see 

also Chavira, 614 F.3d at 133.

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Likewise, the agents’ statements relating to Gonzalez’s freedom to move 

or leave suggest that a reasonable person would not have found the restrictions 

equivalent to formal arrest. By asking—rather than forcing—Gonzalez to 

participate in the interview, the agents implied that he was free to terminate 

the questioning and leave the vehicle at any time. And before starting the 

interview, Piekenbrock reminded Gonzalez that he was not under arrest. As 

discussed, agents had also informed Gonzalez before and while he was briefly 

handcuffed that he was not under arrest. Although the agents’ statements 

were not as clear as those in Wright, where agents explicitly told the defendant 

he was “free to leave,” 777 F.3d at 771, a reasonable person would have 

interpreted the statements to mean that he was in fact free to leave. And, as 

the district court concluded, “the officers’ actions in telling Gonzalez to remain 

seated in the chair after [the] handcuffs were removed” were not “instructions 

of confinement” or “language of confinement or arrest.” See Salinas, 543 F. 

App’x at 465 (“Even if Salinas were not ‘free to leave,’ that does not mean that 

he was effectively under arrest for the purposes of Miranda.”). Instead, the 

district court explained, “the officers were ensuring that Gonzalez had in fact 

calmed down and were cautioning him not to make sudden movements or again 

become belligerent.” In accordance with our obligation to view the facts in the

light most favorable to the Government, see Cavazos, 668 F.3d at 193, we agree 

with this interpretation of the agents’ comments.

The nature of the questioning also weighs in favor of the interview being 

deemed non-custodial. Rather than engaging in hostile, accusatory questioning

like the agents in Chavira, the agents here simply, as the district court put it, 

“asked Gonzalez to tell his side of the story and he agreed to do so.” Cf. Chavira, 

614 F.3d at 134 (finding that defendant’s freedom of movement was severely 

restrained where agents questioned her in an increasingly accusatory manner 

for thirty to forty minutes). During their conversation, the agents’ tone 

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remained “[m]easured” and “very professional.” As in Wright, the content of 

the interview and the agents’ “tone throughout[] highlights that the 

conversation was as much an opportunity taken by [Gonzalez] to tell his story 

to the officers as it was an opportunity taken by the officers to get information 

from [Gonzalez].” 777 F.3d at 777.

Finally, the length of the pre-warning interview—forty minutes—does 

not weigh heavily on either side of the scale. See Harrell, 894 F.2d at 124 n.1 

(warning against “[o]verreliance upon the length” of the questioning, as it 

“injects a measure of hindsight into the analysis which we wish to avoid”). The 

interviews in Wright and Cavazos—two cases the parties relied upon—both 

lasted about an hour, and, as the Wright court explained, “the length of the 

questioning weighs in favor of finding that it was custodial.” Wright, 777 F.3d 

at 777; see also Cavazos, 668 F.3d at 194. But we have previously rejected the 

“broad proposition” that “an hour-long [interview] constitutes a per se custodial 

interrogation.” Harrell, 894 F.2d at 124 n.1. Here, the interview was shorter 

than an hour (about forty minutes) but not so brief as to weigh heavily in the 

opposite direction.

Gonzalez’s argument leans heavily on what he asserts are similarities 

between the present case and Cavazos. But in addition to any factual 

distinctions, there is a critical difference: We are reviewing a district court’s 

denial of a motion to suppress, meaning we must review the evidence in the 

light most favorable to the Government—not the defendant. See United States 

v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005); cf. Cavazos, 668 F.3d at 191, 195 

(reviewing the district court’s grant of a motion to suppress and evaluating the 

record in the light most favorable to the defendant). Plus, in Cavazos we

expressly noted that we were addressing “unique circumstances” and not 

making “categorical determinations.” 668 F.3d at 195.

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Considering all “the circumstances surrounding [Gonzalez’s interview],”

drawn from the record as seen in the light most favorable to the Government, 

we conclude that “a reasonable person [would] have felt he or she was at liberty 

to terminate the inter[view] and leave.” Id. at 193 (internal quotation marks 

omitted). Compare Wright, 777 F.3d at 777 (affirming the district court’s 

conclusion that the defendant was not in custody during a pre-Miranda

interview where seventeen to nineteen law enforcement officers were in and 

around defendant’s home executing a search warrant; officers repeatedly 

assured defendant that he was not under arrest and that he was free to leave;

and defendant was not physically restrained during the hourlong interview,

which took place about thirty feet from his home, in a car subject to public 

scrutiny, and the conversation was as much an opportunity taken by defendant 

to tell his story to officers as it was an opportunity taken by officers to get 

information from defendant), and Salinas, 543 F. App’x at 464−65 (finding that 

a reasonable person in defendant’s position would not have considered himself 

under arrest where two federal marshals initially questioned him at his 

apartment complex; he remained subject to public scrutiny; and he was not 

restrained, even though one of the marshals retained defendant’s cell phone 

and testified that defendant was not free to leave once he suspected defendant 

was lying), with Cavazos, 668 F.3d at 194 (affirming the district court’s finding 

that a reasonable person would believe he was not “at liberty to terminate the 

interrogation and leave” where more than a dozen agents entered his home, 

handcuffed him as he stepped out of bed, separated him from his family, and 

two federal agents interrogated him for at least an hour—during which time 

they observed his restroom use and only allowed him to make a phone call in 

such a way that agents could listen to the conversation), and Chavira, 614 F.3d 

at 134 (finding that defendant’s freedom of movement was severely restrained 

where agents confiscated her birth certificate and state identification; moved 

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her to a windowless, 14-by-10-foot secure room; handcuffed her to a chair;

questioned her in an increasingly accusatory manner for thirty to forty 

minutes; and detained the minor in her care).

Because this “freedom-of-movement test identifies . . . a necessary . . .

condition for Miranda custody,” Maryland v. Shatzer, 559 U.S. 98, 112 (2010), 

we conclude that Gonzalez was not in Miranda custody when he made his 

unwarned statements.

B

But even if Gonzalez’s freedom of movement were so limited, the district 

court determined that the environment in which he was interviewed did not 

“present[] the same inherently coercive pressures as the type of station house 

questioning at issue in Miranda.” Howes, 565 U.S. at 509. And the district 

court did not err in reaching this conclusion.

About forty minutes after the handcuffs were removed, Gonzalez 

voluntarily agreed to speak with the agents and walked to Piekenbrock’s 

vehicle. As the district court noted, “[n]o officer ordered Gonzalez to get into 

the vehicle, and no officer drew a gun.” During the interview, Gonzalez sat “in 

the front passenger seat of [the] law-enforcement vehicle on [his] property and 

within 40 feet of his residence, with the vehicle’s windows partly down, and 

without restraint.” And the agents maintained a “respectful and calm” tone.

Put simply, the environment was not inherently coercive; as the district court 

noted, “Gonzalez willingly agreed to speak with officers, agreed to get in the 

vehicle, never asked to leave, and never asked for a lawyer.”

A reasonable person could certainly be “startl[ed] and intimidat[ed]” by 

eight to ten agents searching his or her home, but that’s not enough to 

constitute station-house-level coercive pressure. Wright, 777 F.3d at 777 

(recognizing “that the presence of 17 or 19 law enforcement officers in and 

around [defendant]’s home was startling and intimidating” but still concluding 

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that, based on “the totality of the circumstances,” the interrogation was noncustodial). So, considering the totality of the circumstances, the environment

where the in-car interview occurred did not “present[] the same inherently 

coercive pressures as the type of station house questioning at issue in 

Miranda.” Howes, 565 U.S. at 509. Consistent with the district court’s findings, 

there was “no evidence of coercive behavior or coercive questioning by the 

officers.” As such, Gonzalez was not in Miranda custody during the prewarning interview.

In sum, Gonzalez was not in Miranda custody when he was interviewed 

because a reasonable person in his position would not have viewed the 

situation as a restraint on his freedom of movement equal to a formal arrest,

and the interview environment was not tantamount to a station house 

interrogation. Thus, we affirm the district court on this issue.

IV

But assuming arguendo that the pre-warning interview occurred while 

Gonzalez was in Miranda custody, we address Gonzalez’s next argument: that

his post-warning statements should be suppressed because the agents acted 

deliberately to circumvent the protections of Miranda by conducting both a 

pre-warning and post-warning interrogation. We find no error in the district 

court’s denial of Gonzalez’s motion to suppress and finding that the agents did 

not engage in a prohibited, two-step interrogation. So any error in admitting 

Gonzalez’s pre-warning statements would be harmless.

Where a “two-step interrogation technique was used in a calculated way 

to undermine the Miranda warning,” “postwarning statements that are related 

to the substance of prewarning statements must be excluded unless curative 

measures are taken before the postwarning statement is made.” Missouri v. 

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Seibert, 542 U.S. 600, 622 (2004) (Kennedy, J., concurring in the judgment);

1

see also, e.g., United States v. Nunez-Sanchez, 478 F.3d 663, 668 (5th Cir. 2007). 

This forbidden, two-step strategy “involves an interrogator relying on the 

defendant’s prewarning statement to obtain the postwarning statement used 

against [him] at trial, by confronting the defendant with [his] inadmissible 

prewarning statements and pushing [him] to acknowledge them.” United 

States v. Delgado-Arroyo, 358 F. App’x 530, 532 (5th Cir. 2009) (per curiam)

(cleaned up).2

If we determine that agents employed a calculated strategy to evade 

Miranda with the proscribed two-step interrogation, we must determine if they 

took curative measures “to ensure that a reasonable person in the suspect’s 

situation would understand the import and effect of the Miranda warning and 

of the Miranda waiver.” Seibert, 542 U.S. at 622 (Kennedy, J., concurring in 

the judgment).3 But, if we conclude that agents used no such tactic, the

admissibility of the warned statements is “governed by the principles of 

Elstad.” Id.; see also infra Part IV(B) (discussing Elstad).

1 Seibert’s holding is set forth “in Justice Kennedy’s opinion concurring in the 

judgment.” United States v. Courtney, 463 F.3d 333, 338 (5th Cir. 2006).

2 For example, in Seibert, “[t]he postwarning interview resembled a crossexamination. The officer confronted the defendant with her inadmissible prewarning 

statements and pushed her to acknowledge them. See App. 70 (‘[Patrice], didn’t you tell me 

that he was supposed to die in his sleep?’).” Seibert, 542 U.S. at 621 (Kennedy, J., concurring 

in the judgment).

3 “For example, a substantial break in time and circumstances between the 

prewarning statement and the Miranda warning may suffice in most circumstances, as it 

allows the accused to distinguish the two contexts and appreciate that the interrogation has 

taken a new turn. . . . Alternatively, an additional warning that explains the likely 

inadmissibility of the prewarning custodial statement may be sufficient.” Seibert, 542 U.S. at 

622 (Kennedy, J., concurring in the judgment) (internal citation omitted).

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A

So, to start, we must determine whether agents used the two-step 

interrogation strategy Seibert prohibits. Gonzalez argues that the agents 

deliberately waited to give Miranda warnings until he had made an 

“incriminating” statement. True, “Piekenbrock’s operational plan 

contemplated that Gonzalez would be interviewed by officers but not 

Mirandized,” and that Gonzalez might “be arrested if firearms were found in 

his home.” But, as the district court found, the “officers did not determine that 

Gonzalez would be arrested until after Gonzalez admitted to buying a revolver 

from the Aryan Brotherhood and after the questioning officers presented the 

facts and circumstances to a federal prosecutor for review.” Gonzalez made 

incriminating statements about his impersonation scheme, but those were 

insufficient “to cause him to be arrested that day.” And Piekenbrock testified 

that Gonzalez’s statement about purchasing the revolver “changed things,” 

ultimately leading the agent to Mirandize Gonzalez. So, rather than engaging 

in a two-step interrogation premised on deceit, the record suggests that agents 

merely responded to evidence—including Gonzalez’s voluntary statements—

acquired during execution of the search warrant and acted in accordance with 

legal counsel. Gonzalez offered no evidence to the contrary.

Plus, the circumstances, nature, and tone of the questioning do not 

suggest “that coercion or other improper tactics were used.” Nunez-Sanchez, 

478 F.3d at 668. Rather, after providing Gonzalez with Miranda warnings, the 

agents continued to speak with him in a “very professional” tone. And the 

record indicates that, as in Lim, “the agents did not act with aggressiveness or 

hostility,” Lim, 897 F.3d at 692 (internal quotation marks omitted), which 

undercuts any argument that the agents confronted Gonzalez with his prewarning statements and pushed him to acknowledge them.

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Gonzalez contends that the post-Miranda questioning was “repetitive” 

and that agents obtained “no new information after the warning,” thus 

showing a deliberate scheme to undermine Miranda. But even if agents 

questioned Gonzalez about the same subjects pre- and post-Miranda, that does

not prove that they “confront[ed]” him with his earlier statements and 

pressured him to acknowledge them. See Delgado-Arroyo, 358 F. App’x at 532.

Indeed, the record shows that agents did not “confront[]” Gonzalez “with the 

statements that had been made earlier”; Piekenbrock testified that there was 

no “discussion of the statements that were made” before Gonzalez was provided 

Miranda warnings. Thus, the district court did not err by determining that the 

agents did not employ the proscribed two-step strategy when interviewing 

Gonzalez.4

B

Because agents did not use the proscribed two-step strategy, the 

admissibility of the warned statements is “governed by the principles of 

Elstad.” Seibert, 542 U.S. at 622 (Kennedy, J., concurring in the judgment). As 

the Supreme Court explained in Elstad, the “subsequent administration of 

Miranda warnings 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.” Oregon v. Elstad, 470 U.S. 298, 314 (1985). 

“In such circumstances,” the Court explained, “the finder of fact may 

reasonably conclude that the suspect made a rational and intelligent choice 

whether to waive or invoke his rights.” Id. “Under Elstad, the relevant inquiry 

4 Consequently, no curative measures were necessary. So although Gonzalez is correct 

that the agents did not employ curative measures after providing Gonzalez Miranda 

warnings, that is irrelevant here.

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is whether, in fact, the second statement was also voluntarily made.” United 

States v. Courtney, 463 F.3d 333, 338 (5th Cir. 2006) (cleaned up).

“[I]n evaluating the voluntariness of [a suspect’s] statements,” “the 

finder of fact must examine the surrounding circumstances and the entire 

course of police conduct with respect to the suspect.” Elstad, 470 U.S. at 318.

The Supreme Court has rejected a “presum[ption of] coercive effect where the 

suspect’s initial inculpatory statement, though technically in violation of 

Miranda, was voluntary.” Id. Rather, “[a] statement is involuntary if the 

tactics employed by law enforcement officials constitute a Fifth Amendment 

due process violation and are so offensive to a civilized system of justice that 

they must be condemned.” Lim, 897 F.3d at 692 (cleaned up). And the 

Government has the burden to prove that Gonzalez voluntarily waived his 

Miranda rights. See Berghuis v. Thompkins, 560 U.S. 370, 382 (2010).

Here, the district court correctly determined “that Gonzalez’s postMiranda statements were voluntarily made” and noted that Gonzalez did not

present any evidence otherwise. Gonzalez did not even argue in his opening 

appellate brief that his post-warning statements were constitutionally

involuntary, so the argument is forfeited. Procter & Gamble Co. v. Amway 

Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004) (explaining that “[f]ailure 

adequately to brief an issue on appeal constitutes [forfeiture] of that argument” 

and finding that argument was forfeited where a party “fail[ed] to raise it in 

its opening brief”). And even if Gonzalez hadn’t forfeited the argument, it

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No. 19-50725

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would fail.5 We affirm the district court’s denial of Gonzalez’s motion to 

suppress his post-warning statements.6

* * *

For these reasons, we AFFIRM. And we DENY Gonzalez’s motion for bail 

pending appeal as moot.

5 As the district court emphasized, “Piekenbrock testified that Gonzalez stated he 

understood his rights and agreed to waive them and continue the interview.” Plus, 

considering the totality of the circumstances of the interview and the agents’ conduct, we 

conclude that Gonzalez’s post-warning statements were voluntary rather than coerced.

6 As discussed, the district court properly admitted Gonzalez’s pre-warning 

statements. But even if the district court had erred, because Gonzalez’s pre- and postMiranda statements were substantively the same, any error in admitting Gonzalez’s preMiranda statements was harmless. Cf. United States v. Boche-Perez, 755 F.3d 327, 342 (5th 

Cir. 2014).

 Case: 19-50725 Document: 00515444245 Page: 18 Date Filed: 06/08/2020