1

 Miranda v. Arizona, 384 U.S. 436 (1966). 

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued May 31, 2006

Decided August 25, 2006

Before

Hon. TERENCE T. EVANS, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

Hon. DIANE S. SYKES, Circuit Judge

No. 05-2988

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TIMOTHY L. STEWART,

Defendant-Appellant.

Appeal from the United States 

District Court for the 

Southern District of Indiana,

Evansville Division.

No. EV 01-32-CR-01-Y/H

Richard L. Young, 

Judge.

O R D E R

Timothy Stewart appeals the district court’s conclusion that a confession he

made to law enforcement officials was admissible at his trial for armed bank

robbery. Stewart’s confession was elicited during a so-called “two-step” or “question

first, warn later” interrogation. This type of interrogation occurs when a suspect in

custody is initially questioned without the benefit of a Miranda1

 warning, makes

inculpatory statements, and is thereupon given appropriate warnings and confirms

his earlier, unwarned statements. 

This is the second time we have reviewed the admissibility of Stewart’s

confession. In our first decision we remanded the issue to the district court for

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 05-2988 Page 2

consideration of whether, in light of the Supreme Court’s plurality opinion in

Missouri v. Seibert, 542 U.S. 600 (2004), the two-step interrogation process was

employed by the officers in this case in a deliberate attempt to circumvent the

requirements of Miranda. United States v. Stewart, 388 F.3d 1079 (7th Cir. 2004). 

On remand, the district court held an evidentiary hearing and concluded that no

end run around Miranda was intended, but the court did not support this

conclusion with the factual findings we think are necessary for our review of its

decision. We therefore must once again remand this case to the district court for

further and more specific factfinding. 

Discussion

The facts surrounding Stewart’s detention and interrogation were discussed

thoroughly in our initial opinion, and we need not reiterate them here in their

entirety. Stated briefly, Stewart was initially detained at a checkpoint established

near the scene of an armed bank robbery in Evansville, Indiana, because he

generally matched a physical description of the robber. Stewart was taken into

custody shortly after he was stopped when his cell phone was found lying next to

the abandoned getaway car. 

Without the benefit of Miranda warnings, Stewart was questioned by

Evansville Police Detectives Winters and Nelson during the ensuing five-minute

ride to the police station and for approximately ten minutes after arrival at the

station. During his pre-Miranda interview at the station with Detectives Winters

and Nelson, Stewart first claimed that another man committed the robbery and

that Stewart only provided the robber with the gun and car used in the crime. 

Winters and Nelson then left Stewart alone in the interview room, and two

agents from the Federal Bureau of Investigation arrived at the station. Nelson and

the two federal agents reentered the room and resumed questioning Stewart, at

which point Stewart admitted that he robbed the bank and acted alone. Stewart

was then read his rights for the first time and signed a Miranda waiver form. The

questioning continued uninterrupted for the next hour, and Stewart made a

tape-recorded statement in which he confirmed and elaborated upon the details of

his earlier, unwarned and unrecorded confession. Over the objection of defense

counsel, this tape-recorded confession was admitted into evidence at Stewart’s trial. 

Stewart was convicted of the bank robbery and was sentenced to 159 months in

prison.

Following his conviction, Stewart appealed several issues, and this panel

rejected all save one. We reserved ruling on the question of whether Stewart’s

recorded confession was inadmissible because the two-step interrogation process

was inconsistent with Miranda as interpreted by the plurality in Seibert. Using the
No. 05-2988 Page 3

2

 In Marks v. United States, 430 U.S. 188, 193 (1977), the Supreme Court held

that “[w]hen a fragmented Court decides a case and no single rationale explaining the

result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that

position taken by those Members who concurred in the judgments on the narrowest

grounds.’” In Seibert, Justice Kennedy’s opinion concurring in the judgment provided

the narrowest grounds for decision and thus constitutes the holding of the Court. See

United States v. Stewart, 388 F.3d 1079, 1090 (7th Cir. 2004). 

Marks2

 approach to the analysis of plurality opinions, we gleaned the following rule

from Seibert:

[A]t least as to deliberate two-step interrogations in which Miranda

warnings are intentionally withheld until after the suspect confesses,

the central voluntariness inquiry of [Oregon v. Elstad, 470 U.S. 298

(1985)] has been replaced by a presumptive rule of exclusion, subject to

a multifactor test for change in time, place and circumstances from the

first statement to the second. . . . Where the initial violation of

Miranda was not part of a deliberate strategy to undermine the

warnings, Elstad appears to have survived Seibert.

Stewart, 388 F.3d at 1090.

We then found that the record was silent as to the crucial Seibert

inquiry—whether the “two-step interrogation in this case was deliberately used in

circumvention of Miranda,” Id. at 1091—and remanded the case for further

proceedings. We held that subsequent factfinding by the district court was needed

to answer the following questions: 

If the sequential interrogation process was used in deliberate

circumvention of Miranda and there is insufficient separation in time

and circumstances between the unwarned and warned confessions,

then the warned confession was improperly admitted and Stewart’s

conviction cannot stand. . . . If, on the other hand, the interrogation

process at work here was not a deliberate end run around Miranda,

then Stewart’s first statement must be evaluated for voluntariness

under Elstad. 

Id. at 1091-92.

As previously noted, the district court held an evidentiary hearing and then

determined in a written opinion that Stewart’s interrogation was “not an end run

around Miranda.” In support of this holding, the court stated: “There is no evidence

that the [Evansville Police Department] has ever had a policy which employs the
No. 05-2988 Page 4

3

 The court also held that Stewart’s post-Miranda statement was voluntarily

made, but this issue was not one that we remanded for further consideration. To the

contrary, our opinion specifically held that “we AFFIRM the district court’s conclusion

that Stewart’s postwarning confession was voluntary . . . .” Stewart, 388 F.3d at 1092.

4

 Indeed, we think it unlikely, in the wake of Seibert and the cases interpreting

it, that a law enforcement agency would maintain an official policy that invites

suppression motions under Seibert.

two-step interrogation technique, nor evidence that the EPD has ever trained or

instructed their officers to employ such a technique.” The court then went on to

hold that the prewarning statement had been voluntarily made and that there was

consequently no error in admission of the postwarning confession at trial.3

In this second round of appellate proceedings, Stewart asks us to (1) revisit

our original decision concerning the proper interpretation of Seibert and the

voluntariness of his post-Miranda statement and (2) find that the district court

erred in concluding that the Evansville police did not intentionally withhold

warnings in a deliberate effort to circumvent Miranda as a means to exact

inculpatory statements. As to the first of these contentions, nothing has changed

since our decision in the first appeal, and Stewart is merely trying to have a second

kick at the cat on issues he lost the first time around. We therefore decline to

reexamine our previous decision. See Vidimos, Inc. v. Wysong Laser Co., Inc.,

179 F.3d 1063, 1065-66 (7th Cir. 1999). We proceed to a discussion of the district

court’s conclusion concerning the question on which we ordered a remand—whether

the police in this case intentionally used the two-step interrogation in deliberate

circumvention of Miranda. 

Stewart argues, and we agree, that the district court’s analysis was unduly

limited to a consideration of whether the Evansville Police Department had an

official policy endorsing two-step interrogation or provided training in which its

officers were instructed to employ such a technique. These considerations are

potentially relevant to the broader question of officer intent but by themselves are

by no means dispositive of the issue. The threshold matter for determination under

Seibert is whether the officers intentionally withheld Miranda warnings as part of a

deliberate strategy to elicit inculpatory statements in circumvention of Miranda;

such an interrogation strategy might be used in a given case in the absence of an

official policy requiring its use.4 Rather than concentrate exclusively on the

presence or absence of a departmental policy, the primary focus of the inquiry

should be on the explanation given by the officer for the failure to administer

warnings in a timely fashion and the credibility of that explanation in light of the

totality of relevant circumstances surrounding the interrogation. 
No. 05-2988 Page 5

We reluctantly conclude that the district court’s decision does not include the

factual findings necessary for us to meaningfully review its conclusion that the

interrogation in this case was not deliberately calculated to circumvent Miranda. 

Particularly conspicuous in its absence is any discussion of the credibility of

Detective Nelson’s testimony concerning the reasons for the failure to administer

Miranda warnings prior to eliciting Stewart’s initial confession.

Accordingly, the district court’s decision is VACATED and we once again

REMAND this case for more specific factfinding consistent with both this opinion

and our original opinion in this case.