Appeal from the United States District Court for the Eastern District of New York (Glasser, J.).
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York, on the 26th day of April, two thousand eleven.
Present: ROBERT D. SACK, ROBERT A. KATZMANN, RICHARD C. WESLEY, Circuit Judges.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of conviction of the district court is AFFIRMED and the sentence is VACATED and REMANDED for further proceedings.
Defendant-Appellant Travis Stroman appeals from a judgment of conviction, entered on March 15, 2010 and amended on March 29, 2010 in the United States District Court for the Eastern District of New York (Glasser, J.), following a two-day jury trial, of one count of possessing ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He was sentenced principally to 96 months' imprisonment. Stroman's conviction arose out of a shooting on March 11, 2009 at a neighborhood grocery store in Brooklyn, New York, during which the suspect discharged a firearm while chasing two individuals in the store, which resulted in no injuries but damage to the glass door of a refrigerated beverage case. On appeal, Stroman argues that the district court (1) committed reversible error in denying his motion to suppress allegedly incriminating statements on the ground that those statements were made in response to the functional equivalent of custodial interrogation under Miranda v. Arizona, 384 U.S. 436 (1966) and Rhode Island v. Innis, 446 U.S. 291 (1980); (2) improperly admitted a hearsay statement whose probative value was outweighed by the prejudice to the defendant; and (3) imposed a procedurally unreasonable sentence by erroneously finding that Stroman discharged the firearm at his intended victim with the specific intent to kill. We assume the parties' familiarity with the remaining facts and procedural history of the case, which we reference only as necessary to explain our decision.
We turn first to Stroman's claim that his statements were the result of interrogation in violation of Miranda and Innis. "When reviewing a district court's ruling on a motion to suppress evidence, we review the court's factual findings for clear error, viewing the evidence in the light most favorable to the government," and its "legal conclusions are reviewed de novo." United States v. Worjloh, 546 F.3d 104, 108 (2d Cir. 2008).
Under Miranda, the government may not use any statements "stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." 384 U.S. at 444. These protections "come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect." Innis, 446 U.S. at 300-01 (footnote omitted).
On May 13, 2009, Federal Bureau of Investigation ("FBI") agents and New York Police Department officers arrested Stroman at his home with a warrant and brought him to an interrogation room at the 73d Precinct station house. FBI Special Agent Jed Salter advised Stroman that "he was being charged with a crime in connection with a shooting he committed in March." App. 30. Agent Salter told Stroman to remain silent, an instruction that Stroman claimed he understood, and the agent informed Stroman that he would show Stroman video surveillance footage. As Agent Salter began to show Stroman the video, Stroman started to speak, and Agent Salter instructed him to remain silent. Despite the agent's warning, as he watched the video, Stroman repeatedly said "you can't see my face." App. 30. Defense counsel filed a pre-trial motion to suppress Stroman's statements as the product of custodial interrogation. The Government, while conceding that Stroman was in custody at the time and was never given Miranda warnings, argued that because Agent Salter had told Stroman to remain silent and showed him the video to educate the defendant about the evidence against him, Stroman's statements were not the result of the functional equivalent of interrogation. The district court denied Stroman's motion to suppress.
On appeal, Stroman argues that, by showing the video to him with the instruction to remain silent, the agents knew that their actions were "reasonably likely to elicit an incriminating response," Innis, 446 U.S. at 301. In evaluating whether interrogation has violated the protections afforded by Miranda, we must "consider police conduct in light of the totality of the circumstances in assessing whether the police 'should have known' that their actions 'were reasonably likely to elicit an incriminating response.'" Acosta v. Artuz, 575 F.3d 177, 191 (2d Cir. 2009) (quoting Innis, 446 U.S. at 303). Not all statements by the police regarding the nature and strength of the evidence against a defendant constitute interrogation or its functional equivalent. See id. ("[C]courts have not endorsed the proposition that statements by law enforcement officials to a suspect regarding the nature of the evidence against the suspect constitute interrogation as a matter of law, recognizing that it simply cannot be said that all such statements are objectively likely to result in incriminating responses by those in custody." (internal quotation marks and alteration omitted)); see also United States v. Payne, 954 F.2d 199, 202 (4th Cir. 1992) ("[T]he Innis definition of interrogation is not so broad as to capture within Miranda's reach all declaratory statements by police officers concerning the nature of the charges against the suspect and the evidence relating to those charges."); Easley v. Frey, 433 F.3d 969, 974 (7th Cir. 2006) (officer's "matter-of-fact communication of the evidence" against the defendant was not interrogation).
Stroman nevertheless argues that, when reviewing the "totality of the circumstances," Acosta, 575 F.3d at 191, this Court should conclude that the agents "should have known" that their actions -- forcing Stroman to watch a potentially incriminating videotape and requesting that he remain silent -- were "reasonably likely to elicit an incriminating response," Innis, 446 U.S. at 301. Several courts have asserted that, under certain circumstances, showing evidence to the defendant may be the functional equivalent of custodial interrogation. See, e.g., United States v. Green, 541 F.3d 176, 187 (3d Cir.) (holding that showing video allegedly depicting defendant as engaging in a criminal act was reasonably likely to elicit incriminating response), reh'g granted and vacated, 304 F. App'x 981, 982 (3d Cir. 2008); United States v. Collins, 43 F. App'x 99, 101 (9th Cir. July 30, 2002) (playing audiotape to defendant was likely to elicit incriminating response); United States v. Lovell, 317 F. Supp. 2d 663, 669 (W.D. Va. 2004) (concluding that showing rifle to defendant was "functional equivalent" of interrogation). The question thus posed by this case is whether the police conduct was intended to elicit an incriminating response from Stroman before informing him of his Miranda rights.
This Court has not had occasion to consider this question, and although the police conduct at issue raises concerns that police may be able to sidestep Miranda's safeguards, we need not determine whether the agents' actions rise to the level of a Miranda violation. Assuming arguendo that Stroman's statements were the product of interrogation and thus the district court erred in not granting Stroman's motion to suppress, we conclude that it was harmless error to admit those statements at trial. Stroman argues that ...