UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011
February 22, 2012
UNITED STATES, APPELLEE,
CHAUNCEY MOORE, DEFENDANT-APPELLANT.
The opinion of the court was delivered by: Dennis Jacobs, Chief Judge:
United States v. Moore
Argued: November 17, 2011
Before: JACOBS, Chief Judge, CABRANES and LIVINGSTON, Circuit Judges.
Chauncey Moore appeals from a judgment entered in the 31 United States District Court for the District of Connecticut 32 (Chatigny, J.) on a plea of possession of a firearm by a 33 felon. The plea was conditioned on the ability to appeal 34 the district court's decision on his motion to suppress.
35 After his arrest, Moore inculpated himself when he was 36 questioned by police before he received Miranda warnings and 37 again later, after he was warned. Moore contends that the 1 subsequent confession must be suppressed because it was 2 obtained through a two-part interrogation technique outlawed 3 as a violation of the Fifth Amendment in Missouri v. 4 Seibert, 542 U.S. 600 (2004).
5 The district court declined to suppress the subsequent 6 confession, and Moore appeals from that ruling. We conclude 7 that the subsequent confession was given voluntarily and 8 without coercion, and was not elicited by the proscribed 9 two-step technique.
10 Moore also contends that the second interview violated 11 his Sixth Amendment right to counsel. We conclude that the 12 confession did not offend the Sixth Amendment because his 13 right to counsel had not yet attached, particularly with 14 regard to the federal offense for which he was prosecuted 15 below. 16 Affirmed.
Chauncey Moore appeals from a judgment entered in the 4 United States District Court for the District of Connecticut 5 (Chatigny, J.) on a plea of possession of a firearm by a 6 felon. The plea was conditioned on his appeal of the 7 district court's decision denying (in relevant part) his 8 motion to suppress.
9 While fleeing arrest on a warrant, Moore tossed a gun 10 away. During an exchange in the police station lockup after 11 his arrest but before he received Miranda warnings, he told 12 a law-enforcement officer where he had tossed the gun. A 13 few hours later he confessed to other officers after the 14 warnings were administered. Moore contends that he 15 confessed because of a two-part interrogation technique 16 outlawed as a violation of the Fifth Amendment in Missouri 17 v. Seibert, 542 U.S. 600 (2004).
18 The district court suppressed the statement made in 19 lockup -- a ruling from which the Government takes no appeal 20 -- but declined to suppress the confession. Moore takes 21 this appeal from that ruling. We conclude that the 22 confession was given voluntarily, without coercion, and 23 without violation of Seibert.
Moore also contends that the second interview violated 2 his Sixth Amendment right to counsel because his right to 3 counsel had attached prior to being questioned. We conclude 4 that the confession did not offend the Sixth Amendment 5 because the right to counsel had not attached, in particular 6 with regard to the federal offense for which he was 7 prosecuted below. 8 Affirmed.
On the afternoon of September 23, 2002, a Connecticut 12 Superior Court judge issued an arrest warrant for Chauncey 13 Moore on charges that arose from a carjacking and attempted 14 armed robbery in which shots were fired. After 11 p.m. that 15 night, Officer Mark R. Suda spotted Moore walking down the 16 street in Norwalk, and gave chase. After Suda lost sight of 17 him, Moore tossed a handgun onto the roof of a house. Suda 18 searched the path of Moore's flight after giving up the 19 chase, but found nothing.
20 Moore was apprehended the following morning, around 21 6:15 a.m., and placed in the lockup. The arresting officers 22 did not question him and did not administer Miranda 23 warnings.
At 8:30 a.m., Detectives Arthur Weisgerber and Michael 2 Murray were sent to the lockup to interview Moore, who was 3 asleep. They tried to awaken him, but Moore told them he 4 did not know why he had been arrested and went back to 5 sleep. The detectives left.
6 Officer William Zavodjancik was in charge of the lockup 7 that day. Generally, arrestees placed in the lockup by 7:00 8 a.m. on a weekday (like Moore) would be processed and taken 9 to the court the same morning. At 9:15 a.m., Zavodjancik 10 took several arrestees to court for arraignment, but Moore 11 was not among them because Zavodjancik lacked the 12 information necessary to "process" him prior to 13 arraignment.*fn1 The district court concluded "[o]n the record 14 before [it], . . . [that] Officer Zavodjancik engaged in no 15 deliberate wrongdoing as alleged by [Moore]." Moore, 2007 16 WL 708789, at *2. (Moore does not challenge this factual 17 finding.*fn2
Just after noon, during one of Zavodjancik's routine 2 checks on prisoners in the lockup, Moore asked to speak with 3 a detective. Zavodjancik could not reach anyone in the 4 detectives' bureau, and left a message. During the next 5 check, Moore asked again to speak with a detective; 6 Zavodjancik called again and left another message.
Around 2 p.m., Moore asked to use a pay phone and was 8 moved to a cell with a phone. Half an hour later, while 9 still in that cell, Moore spotted a Norwalk narcotics 10 officer he knew (Sergeant Ronald Pine), and called him over. 11 Pine was not involved in Moore's case and did not know that 12 Moore was in the lockup until he heard Moore call his name. 13 All Pine knew about Moore's arrest was that there had been 14 an incident in which shots were fired and that the gun had 15 not yet been recovered.
16 When Moore called to him, Pine came over and asked 17 "What's up?" Moore asked Pine to help him get released on a 1 promise to appear, as Pine had done once before (on a 2 larceny charge). Pine said he could not help because the 3 pending charges involved discharge of a firearm.
4 Pine then asked Moore if he could tell him where the 5 gun was, and Moore said he was reluctant to answer because 6 he did not want to face a federal gun charge. Pine offered 7 to put in a good word for him with the state's attorney. 8 During this brief exchange, Pine saw Agent Ron Campanell of 9 the Federal Bureau of Alcohol, Tobacco, Firearms, and 10 Explosives (who was there on an unrelated matter), and asked 11 him to join them. Pine told Moore that he could talk to 12 Campanell after Moore helped them find the gun.
13 Moore agreed, told them where he had tossed the gun, 14 and drew a map. Map in hand, Pine and Campanell drove to 75 15 South Main Street where, from the rear of the property, they 16 could see the gun on the roof of the house. Detectives 17 Weisgerber and Murray arrived and photographed the scene 18 before retrieving the gun. Pine then informed the 19 detectives that Moore wanted to talk to them.
20 Just after 4:00 p.m. -- about one hour and 35 minutes 21 after Pine and Moore began talking -- the detectives arrived 22 at Moore's cell. Moore told them that he was willing to 23 talk about the pending charges. They moved him to a nearby 24 interview room, where they were joined by Campanell.
1 The detectives told Moore that he was in serious 2 trouble; but before they began asking questions, they handed 3 him an advice of rights and waiver form. By this point, 4 Moore had decided it was in his best interest to cooperate. 5 He read the form aloud, initialed each paragraph, and signed 6 on the bottom.
7 Over the next 45 minutes, the detectives asked him 8 where he got the gun; who else in Norwalk possessed a gun; 9 whether he had information about several cold homicide 10 cases; and what he knew about the carjacking and attempted 11 robbery for which he had been arrested. Moore gave evasive 12 answers to the first two inquiries. He did disclose his 13 role in the carjacking and attempted robbery, but refused to 14 provide a written statement without speaking to counsel. 15 The detectives ended the interview.
16 The following day (September 25, 2002), Moore was 17 arraigned on the state charges. Later, the United States 18 Attorney obtained an indictment against Moore on the federal 19 charge of being a felon in possession of a firearm. See 18 20 U.S.C. § 922(g).
In the federal criminal case, Moore moved to suppress 22 his statements to investigators (and the gun) on the grounds 1 that he was not advised of his Miranda warnings and that his 2 questioning violated his Sixth Amendment right to counsel, 3 which he argues attached when the state prosecutor filed an 4 information along with the application for an arrest 5 warrant. The district court suppressed the initial, 6 unwarned statement Moore provided to Pine and Campanell 7 while in the lockup. The district court did not suppress 8 the gun as a fruit of the unwarned statement, however, 9 because the gun was physical evidence obtained from a 10 voluntary statement. Moore, 2007 WL 708789, at *5 n.5 11 (citing United States v. Patane, 542 U.S. 630 (2004)). The 12 district court also denied the motion to suppress the later, 13 warned statement.
14 Moore subsequently entered a conditional guilty plea 15 that permitted him to take this appeal. Moore was sentenced 16 principally to 110 months' incarceration and three years of 17 supervised release.
When reviewing a district court's decision in the 21 government's favor on a motion to suppress, this Court 22 "examine[s] the record in the light most favorable to the 9 1 government." United States v. Rommy, 506 F.3d 108, 131 (2d 2 Cir. 2007).
We "review a district court's determination 3 regarding the constitutionality of a Miranda waiver de 4 novo," and its factual findings for "clear error." United 5 States v. Carter, 489 F.3d 528, 534 (2d Cir. 2007).
The district court suppressed Moore's initial, unwarned 10 statement as obtained in violation of his Fifth Amendment 11 rights under Miranda v. Arizona, 384 U.S. 436 (1966), but 12 did not suppress Moore's post-warning statement. Because 13 the government does not appeal the suppression of Moore's 14 initial statement, the only issue before us is whether the 15 district court erred in not suppressing Moore's subsequent 16 confession, provided after he was Mirandized.
17 Moore argues that police improperly engaged in a 18 deliberate two-step interrogation technique designed to 19 subvert his Fifth Amendment rights by getting him to 20 incriminate himself before being advised of his rights, then 21 reading him his rights and getting him to incriminate 22 himself again while still disarmed by the original 1 incrimination. Under these circumstances, Moore argues, 2 both the initial, unwarned statement and the later, post- 3 warning statement must be suppressed.
The Supreme Court has twice considered whether a post- 5 warning inculpatory statement must be suppressed if the 6 defendant was previously interrogated without being warned. 7 First, in Oregon v. Elstad, 470 U.S. 298 (1985), police 8 executed a warrant for the arrest of the 18-year old Elstad 9 on a burglary charge. Id. at 300. At his house, Elstad's 10 mother allowed the police to go upstairs, where they 11 arrested her son. Id. As the police were removing him from 12 the home, they took his mother aside to explain the 13 situation. Id. at 300-01. In that interval, an officer 14 questioned Elstad without advising him of his Miranda 15 rights, and Elstad implicated himself. Id. at 301. Later, 16 at the police station, Elstad was "Mirandized" and 17 interrogated, and gave a complete confession. Id. at 301- 18 02. Elstad argued for suppression of the warned confession 19 on the ground that the initial statement "let the cat out of 20 the bag" and "tainted" his subsequent confession. Id. at 21 303-04 (internal quotation marks omitted).
"Though Miranda requires that the unwarned admission 2 must be suppressed," the Supreme Court ruled that "the 3 admissibility of any subsequent statement should turn in 4 these circumstances solely on whether it is knowingly and 5 voluntarily made." Id. at 309. The "subsequent 6 administration of Miranda warnings to a suspect who has 7 given a voluntary but unwarned statement ordinarily should 8 suffice to remove the conditions that precluded admission of 9 the earlier statement," because "the finder of fact may 10 reasonably conclude that the suspect made a rational and 11 intelligent choice whether to waive or invoke his rights." 12 Id. at 314. "[T]here is no warrant for presuming coercive 13 effect where the suspect's initial inculpatory statement, 14 though technically in violation of Miranda, was voluntary." 15 Id. at 318. "The relevant inquiry" is whether "the second 16 [post-warning] statement was . . . voluntarily made." Id.
17 Elstad involved an accidental or mistaken interrogation 18 in violation of Miranda. See Elstad, 470 U.S. at 314 19 (explaining that the police did not use "deliberately 20 coercive or improper tactics" to obtain the initial, 21 unwarned statement). In Missouri v. Seibert, 542 U.S. 600 22 (2004), the Court considered a deliberate effort to 1 circumvent Miranda. In Seibert, the police interrogated a 2 woman suspected of arson. In the first interview, the 3 police intentionally refrained from advise her of her 4 rights, and elicited all the information they needed. They 5 then warned her, and again interrogated her using the first 6 statements against her to obtain a post-warning confession. 7 Id. at 604-06. Five justices found that this tactic 8 violated the suspect's Fifth Amendment rights even with 9 regard to the statement given post-warning.
The justices split as to the proper test. The 11 plurality (Souter, Stevens, Ginsburg, and Breyer, JJ.) 12 concluded that the warning administered prior to the second 13 statement was ineffective, id. at 611-12, distinguishing 14 Elstad on that basis. Id. at 615. Five factors were said 15 to be relevant to that inquiry: (1) "the completeness and 16 detail of the questions and answers in the first round of 17 interrogation," (2) "the overlapping content of the two 18 statements," (3) "the timing and setting of the first and 19 second" interrogations, (4) "the continuity of police 20 personnel" doing the questioning, and (5) "the degree to 21 which the interrogator's questions treated the second round 22 as continuous with the first." Id. The warning was deemed 1 ineffective because: the original "questioning was 2 systematic, exhaustive, and managed with psychological 3 skill"; there "was little, if anything, of incriminating 4 potential left unsaid"; the two interrogations took place 5 "only 15 or 20 minutes" apart, "in the same place," and with 6 "the same officer"; nothing was said to dispel the 7 impression that the first statement could be used against 8 the suspect; and it reasonably appeared to the suspect that 9 "the further questioning was a mere continuation of the 10 earlier questions and responses." Id. at 616.
11 Justice Kennedy's concurrence disagreed with the 12 plurality's reasoning. In Justice Kennedy's view, the real 13 difference between Elstad and Seibert was that Seibert 14 involved a "deliberate, two-step strategy, predicated upon 15 violating Miranda." Id. at 621 (Kennedy, J., concurring). 16 It was decisive for Justice Kennedy that the two-step 17 process was arranged by the police deliberately as a 18 "calculated way to undermine the Miranda warning" -- 19 something that is only likely to occur "in the infrequent 20 case." Id. at 622. So, in Justice Kennedy's view, if there 21 is a deliberate two-step, the "postwarning statements that 22 are related to the substance of prewarning statements must 1 be excluded unless curative measures are taken before the 2 postwarning statement is made." Id. Such "curative 3 measures" are those "designed to ensure that a reasonable 4 person in the suspect's situation would understand the 5 import and effect of the Miranda warning and of the Miranda 6 waiver." Id. Such curative measures could include "a 7 substantial break in time and circumstances between the 8 prewarning statement and the Miranda warning" or "an 9 additional warning that explains the likely inadmissibility 10 of the prewarning custodial statement." Id.
11 This Court first addressed the issue of a two-step 12 interrogation in United States v. Carter, where we 13 implicitly found controlling Justice Kennedy's concurrence 14 in Seibert and "join[ed] our sister circuits in holding that 15 Seibert lays out an exception to Elstad for cases in which a 16 deliberate, two-step strategy was used by law enforcement to 17 obtain the postwarning confession." United States v. 18 Carter, 489 F.3d 528, 536 (2d Cir. 2007). In Carter, 19 officers executing a search warrant smelled crack cocaine 20 and discovered a bag containing crack and powder cocaine as 21 well as a brown substance they believed to be heroin. The 22 suspect (Bearam), unwarned, said that the substance was "bad 1 co[caine]." Id. at 533. Bearam was interrogated again 2 after being Mirandized, and admitted that he sold drugs and 3 had received the bag of drugs discovered by the authorities. 4 Id.
The facts in Carter did not amount to a proscribed two- 6 step strategy because (1) "there was almost no overlap 7 between th[e] statement and the full confession [Bearam] 8 gave after he received the warnings," (2) over an hour had 9 passed between the two statements, (3) the investigators 10 were not the same in the first and second interviews, (4) 11 the investigators in the second interview did not know about 12 Bearam's original statement, and (5), unlike in Seibert 13 where "the second round of interrogation was essentially a 14 cross-examination using information gained during the first 15 round of interrogation," in Carter the "postwarning 16 questioning was not a continuation of the prewarning 17 questioning." Id. Finally, having found no deliberate two- 18 step we applied the principle of Justice Kennedy's Seibert 19 concurrence and concluded that Bearam waived his rights: his 20 initial, prewarning statement was "voluntary"; the 21 questioning "not coercive"; and the later, post-warning 22 statement was, therefore, admissible. Id. at 537.
We considered this issue again in United States v. 2 Capers, 627 F.3d 470 (2d Cir. 2010). Capers was caught in a 3 sting operation stealing money from Express Mail envelopes. 4 Id. at 472-73. After Capers and another man (Lopez) were 5 arrested and separated, Capers was questioned by a postal 6 inspector without being warned, and incriminated himself. 7 Id. After Capers was transported to another facility and 8 advised of his rights, he was again interviewed by the same 9 postal inspector, and again incriminated himself. Id. at 10 473. We affirmed the suppression of both sets of 11 statements. Id. at 474, 485.
12 In affirming the suppression, we decided several 13 questions left open by Seibert and Carter, that will bear 14 upon our analysis here. First, we made explicit what was 15 implicit in Carter: Justice Kennedy's concurrence in Seibert 16 is controlling. Capers, 627 at 476. Second, although 17 Justice Kennedy wrote of a deliberate two-step scheme, his 18 concurrence did not explain how a court is to determine 19 whether such a strategy has been employed. So, "we join[ed] 20 our sister circuits in concluding that a court should review 21 the totality of the objective and subjective evidence 22 surrounding the interrogations in order to determine 17 1 deliberateness . . . ." Id. at 479. Third, we held that 2 the prosecution bears the burden of disproving by a 3 preponderance of the evidence that the government employed a 4 deliberate two-step strategy to deprive the defendant of the 5 protections afforded by the Fifth Amendment. Id. at 479-80.
6 Finally, we advised a somewhat closer scrutiny of an 7 investigator's testimony of subjective intent when the 8 proffered rationale is not a "legitimate" reason to delay or 9 where it "inherently lacks credibility" in view of the 10 "totality of the circumstances." Capers, 627 F.3d at 484 11 n.5. Such scrutiny is not ordinarily required when the 12 reason for delay is legitimate, such as officer or community 13 safety or when delay is a product of a "rookie mistake," 14 miscommunication, or "a momentary lapse in judgment." Id. 15 Moreover, if it is found, after weighing the investigator's 16 credibility, that the investigator's intent was not 17 "calculated . . . to undermine Miranda," delay will not 18 require exclusion of the later, warned statement even if the 19 court finds that the delay was for an illegitimate reason 20 and even in the absence of curative measures. Id. at 482.
These authorities can be applied using a 3 straightforward analysis. First, was the initial statement, 4 though voluntary, obtained in violation of the defendant's 5 Miranda rights? If not, there is no need to go further. 6 See United States v. Courtney, 463 F.3d 333, 336 (5th Cir. 7 2006). If the initial statement was obtained in violation 8 of the defendant's Miranda rights, has the government 9 demonstrated by a preponderance of the evidence, and in 10 light of the totality of the objective and subjective 11 evidence, that it did not engage in a deliberate two-step 12 process calculated to undermine the defendant's Miranda 13 rights? If so, the defendant's post-warning statement is 14 admissible so long as it, too, was voluntary; if not, the 15 post-warning statement must be suppressed unless curative 16 measures (designed to ensure that a reasonable person in the 17 defendant's position would understand the import and effect 18 of the Miranda warnings and waiver) were taken before the 19 defendant's post-warning statement.
The district court concluded that Moore's initial 3 statement was obtained in violation of his Miranda rights. 4 The government does not appeal that decision; so we proceed 5 on that assumption.
6 In considering whether the government has demonstrated 7 that it did not engage in a deliberate two-step process 8 designed to thwart Moore's Miranda rights, we "review the 9 totality of the objective and subjective evidence 10 surrounding the interrogations," Capers, 627 F.3d at 479, 11 guided by -- but not limited to -- the factors identified by 12 the plurality in Seibert, see Capers, 627 F.3d at 483-84 13 (applying plurality's factors); see also Seibert, 542 U.S. 14 at 615 (identifying factors). Although the five Seibert 15 factors were developed by the plurality to gauge whether the 16 later Miranda warnings "could be effective enough to 17 accomplish their object," Seibert, 542 U.S. at 515, they 18 likewise will often serve as helpful indicia for whether an 19 alleged two-step interrogation was intended to circumvent 20 Miranda, see, e.g., Capers, 627 F.3d at 483-84; Carter, 489 21 F.3d at 536. We therefore use the plurality's five factors 22 not to weigh the effectiveness of the later Miranda 20 1 warnings, but to shed light on the detectives' intent.*fn3
2 A review of the evidence leads us to conclude that the 3 government did not engage in a deliberate two-step strategy 4 to deprive Moore of his Miranda rights. There is no 5 subjective evidence of intent here -- no testimony, for 6 example, by any officer of an intent to use a two-step 7 technique, nor any evidence that such intent was reflected 8 in a police report. See, e.g., Capers, 627 F.3d at 479 9 (categorizing the interrogating officer's testimony as 10 subjective evidence); cf. Ryan Iron Works, Inc. v. NLRB, 257 11 F.3d 1, 9 (1st Cir. 2001) (observing that subjective 12 criteria includes a party's "own characterization of [its] 13 motive") (internal quotation marks omitted). Nor is there 14 any objective evidence that such a technique was used. 15 Moore, 2007 WL 708789, at *2 (finding "no evidence" that the 16 government intentionally delayed bringing Moore to court or 17 engaged in any such subterfuge or deliberate wrongdoing in 18 order to obtain a confession).
Moreover, a discarded gun obviously poses public safety 2 considerations. True, the district court ruled that the 3 public safety exception*fn4 did not, as a matter of law, excuse 4 the failure to give Miranda warnings at the initial 5 interview, see Moore, 2007 WL 708789, at *5 -- a ruling we 6 do not consider, much less adopt, inasmuch as it was 7 unchallenged by the government on appeal. Nevertheless, 8 undoubted public safety considerations plausibly account for 9 the conduct of the police in a way that militates against 10 finding that the first interview was a premeditated attempt 11 to evade Miranda. See generally Capers, 627 F.3d at 481; 12 id. at 492-94 (Trager, J., dissenting); cf. United States v. 13 Hernandez-Hernandez, 384 F.3d 562, 566 (8th Cir. 2004) 14 (finding that the failure of the officer to read the 15 defendant "his rights does not seem to have been 'an 16 intentional withholding that was part of a larger nefarious 17 plot.'" (quoting Reinert v. Larkins, 379 F.3d 76, 91 (3d 18 Cir. 2004))).*fn5
The objective evidence -- including the narrowness of 2 overlap between the subjects of the two interrogations, the 3 participation of different officers, and the elapse of 90 4 minutes between the interrogations -- decidedly points 5 against concluding that the government engaged in a 6 deliberate two-step process designed to undermine Moore's 7 Fifth Amendment rights.
1. Thoroughness of the first interrogation.
The first 9 factor considers "the completeness and detail of the 10 questions and answers in the first round of interrogation." 11 Seibert, 542 U.S. at 615. As opposed to Seibert -- where 12 the initial "questioning was systematic, exhaustive, . . 13 managed with psychological skill," and left "little, if 14 anything, of incriminating potential . . . unsaid," id. at 15 616 -- here the initial questioning was brief and spare. 16 Sergeant Pine's questioning of Moore in the lockup was 17 limited to the location of the gun because, as the 1 government argued, Pine was worried about the danger to the 2 public of someone finding a (potentially loaded) weapon. 3 Pine asked no questions about Moore's involvement in the 4 attempted robbery or carjacking, about who else was involved 5 in either of those incidents, or about how Moore obtained 6 the gun. Pine's sole and limited focus was finding the gun. 7 See United States v. Verdugo, 617 F.3d 565, 575 (1st Cir. 8 2010) (finding it significant that the defendant "was asked 9 only a limited number of questions before he was read his 10 Miranda rights").
The second factor -- "the overlapping 12 content of the two statements," Seibert, 542 U.S. at 615 -- 13 also favors the government. See United States v. Stewart, 14 536 F.3d 714, 722 (7th Cir. 2008) ("[T]he lack of overlap 15 between the warned and unwarned statements is evidence that 16 the interrogator did not deliberately use a two-step 17 strategy designed to circumvent Miranda."). Whereas the 18 initial questioning focused exclusively on the location of 19 the gun, the second questioning was broad and systematic: it 20 focused on the attempted robbery and carjacking, where Moore 21 got the gun, who else in town had guns, and whether Moore 22 had any information about cold homicide cases. The two 1 rounds of questioning did not appreciably overlap. See 2 Carter, 489 F.3d at 536 (finding "almost no overlap" between 3 the initial questioning involving the contents of a baggie 4 found during the search and the defendant's later full 5 confession); see also United States v. Jackson, 608 F.3d 6 100, 104 (1st Cir. 2010) (finding significant that the 7 initial questioning was "aimed primarily at securing the 8 weapon").
3. Timing and setting.
The circumstances of the 10 interrogations likewise favor the government. Although both 11 rounds of questioning took place within the police station, 12 the first began when Moore initiated a conversation with 13 Pine after he saw Pine walking through the station and 14 called him over to speak with him. Moore did so because he 15 knew Pine, who had previously helped Moore get released on a 16 promise to appear, and wanted to ask Pine to help him again. 17 Although (as the district court found) Pine turned the 18 discussion to the whereabouts of the gun, Moore, 2007 WL 19 708789, at *3, Pine was not involved in the investigation of 20 Moore, id. at *2, and Pine did not know that Moore was in 21 the lockup before Moore beckoned to him. Id. In 22 combination, these facts suggest that, although Pine 25 1 questioned Moore about the location of the gun and the 2 district court suppressed Moore's response, Pine did not 3 initiate this questioning as part of a two-step 4 interrogation.*fn6
4. Continuity of personnel.
There was little 6 "continuity of police personnel" involved in the two 7 interviews. See Seibert, 542 U.S. at 615. In Seibert, the 8 same officer did the questioning both times. Id. at 605, 9 616. Similarly, the lead postal investigator who set up the 10 sting operation in Capers did the questioning before and 11 then again after the defendant had been advised of his 12 rights. 627 F.3d at 473, 483. Here, Moore was questioned 13 first by Pine and later by Detectives Weisgerber and Murray. 14 The detectives were not present at the initial questioning; 15 and Pine was not present when the detectives asked the 16 questions. Although Pine called over Agent Campanell during 17 his brief interaction with Moore, and Campanell was also 18 present at Moore's interrogation by the detectives, 19 Campanell had little, if any, role in questioning Moore.
5. Continuity of the questioning.
Approximately 90 2 minutes elapsed between Pine's encounter with Moore and the 3 detectives' interrogation of him. In that interval, the 4 officers left the station to retrieve the gun. The 90- 5 minute interval was enough time for Moore to have reasonably 6 believed that the second interrogation was not merely a 7 continuation of the first.
8 In Capers, a 90-minute break between questioning was 9 insufficient. 627 F.3d at 484. But there, both encounters 10 were inquisitorial and conducted by the same inspector, who 11 was leading the investigation and had planned the sting 12 operation. See id. at 483-84. Moreover, in Capers, "the 13 latter session was 'essentially a cross-examination using 14 information gained during the first round of 15 interrogation.'" Id. at 484 (quoting Carter, 489 F.3d at 16 536). Here, the second interview was not treated as a 17 continuation of the first, see Seibert, 542 U.S. at 615, nor 18 did the investigators use the information obtained from 19 Pine's questioning to cross-examine Moore or compel him to 20 answer due to the weight of an earlier admission, id. at 621 21 (Kennedy, J., concurring).
Moore had a 90-minute break between the two encounters, 2 which differed in every material respect. The break in 3 momentum allowed Moore to appreciate that he retained the 4 right to remain silent. See Seibert, 542 U.S. at 616-17; 5 see also United States v. McConer, 530 F.3d 484, 498 (6th 6 Cir. 2008) (describing a reasonable suspect's belief that he 7 or she retained a choice to remain silent as "the factor 8 primarily relied upon by the Seibert plurality").
9 Based on the totality of the record here, the 10 government has met its burden of demonstrating that it did 11 not engage in a deliberate two-step process to undermine 12 Moore's Fifth Amendment rights. Therefore, this case is 13 controlled by Elstad, not Seibert.
14 Under Elstad, the dispositive inquiry is whether the 15 statements were provided voluntarily and free of coercion. 16 470 U.S. at 318. Moore does not contend -- nor could he -- 17 that his initial statement to Pine was coerced or otherwise 18 involuntary.*fn7
Nor can there be doubt that Moore's later statement was 2 voluntary. The circumstances of his questioning "contain no 3 traces of the 'brutality, [p]sychological duress, threats, 4 [or] unduly prolonged interrogation' that courts have 5 previously found when they have concluded that statements 6 were involuntarily made." Verdugo, 617 F.3d at 575 (quoting 7 Jackson, 608 F.3d at 102-03) (alterations in original). 8 Moore was advised of his rights before the later 9 interrogation, and he agreed (orally and in writing) to 10 waive them. There is no dispute that he was fully advised 11 of his rights and that he knowingly and voluntarily waived 12 them. See Elstad, 470 U.S. at 314-15; Carter, 489 F.3d at 13 536-37. Moore's willingness to talk with the police even 14 after he was informed of his rights is itself "highly 15 probative." Elstad, 470 U.S. at 318. Based on these facts, 16 it is clear Moore knowingly and intelligently waived his 17 right to remain silent. Because "[a] subsequent 18 administration of Miranda warnings . . . ordinarily should 19 suffice to remove the conditions that precluded admission of 20 the earlier [unwarned] statement," id. at 314, and Moore's 21 statements to the authorities were voluntary, the district 22 court properly denied Moore's suppression motion as to 23 Moore's post-warning statement to the detectives.
Moore's second argument for suppression -- that his 3 post-arrest questioning violated his Sixth Amendment right 4 to counsel -- fares no better. The Sixth Amendment 5 provides: "In all criminal prosecutions, the accused shall 6 enjoy the right . . . to have the Assistance of Counsel for 7 his defence." U.S. Const. amend. VI. The district court 8 concluded that Moore's Sixth Amendment right had not yet 9 attached because the state prosecution had not been 10 initiated, and (independently) that the Sixth Amendment did 11 not attach to the federal gun possession charge because the 12 Sixth Amendment is offense specific and the gun-possession 13 prosecution had not yet been initiated. We agree on both 14 scores.
The Sixth Amendment is concerned with the assistance of 18 counsel in "criminal prosecutions." U.S. Const. amend. VI. 19 Accordingly, the right to counsel does not attach until the 20 prosecution is initiated. If, as true at the time of 21 Moore's questioning here, no formal charging instrument has 22 yet been filed, the right to counsel generally attaches "at 1 the first appearance [by the accused] before a judicial 2 officer at which a defendant is told of the formal 3 accusation against him and restrictions are imposed on his 4 liberty." Rothgery v. Gillespie Cnty., 554 U.S. 191, 194 5 (2008) (citing Michigan v. Jackson, 475 U.S. 625, 629 n.3 6 (1986), and Brewer v. Williams, 430 U.S. 387, 398-99 7 (1977)). Absent a formal charge, arrest on a warrant, even 8 one issued pursuant to a criminal complaint sworn out by 9 prosecutors, is insufficient prior to the initial appearance 10 before a judicial officer. See United States v. Duvall, 537 11 F.2d 15, 21-22 (2d Cir. 1976) (Friendly, J.). It is only at 12 that point that "the government has committed itself to 13 prosecute" that "the adverse positions of government and 14 defendant have solidified" and the accused "finds himself 15 faced with the prosecutorial forces of organized society, 16 and immersed in the intricacies of substantive and 17 procedural criminal law." Rothgery, 554 U.S. at 198 18 (internal quotation marks omitted).
Moore was questioned before he was arraigned. He had 20 been arrested the day after a state prosecutor presented an 21 application for an arrest warrant (with attached criminal 22 information) to a superior court judge. Once Moore was 31 1 arrested, he remained in lockup where he had the 2 conversation with Pine and then was moved to an 3 interrogation room (after the gun was located) and 4 questioned by the detectives and Agent Campanell. Moore was 5 then arraigned the following day. 6 Moore argues that the line of cases fixing the 7 attachment of the Sixth Amendment at arraignment are 8 inapplicable here because the police unnecessarily delayed 9 bringing him to court. But, as the district court found as 10 fact, there was no attempt by the police to intentionally 11 keep Moore from being arraigned. Moore, 2007 WL 708789, at 12 *2 (finding "no evidence" that anyone asked Officer 13 Zavodjancik to refrain from taking Moore to court "nor any 14 evidence" suggesting that Zavodjancik "would engage in such 15 a subterfuge."). This finding is reviewed for clear error, 16 Carter, 489 F.3d at 534, and Moore has failed to show error.
17 Moore also argues that the Sixth Amendment attached 18 even before his arrest because the assistant state's 19 attorney obtained the arrest warrant by presenting the 20 superior court judge with an information and an application 21 for an arrest warrant. But the Connecticut Supreme Court, 22 in State v. Pierre, 890 A.2d 474 (Conn. 2006), held that an 1 information attached to an application for an arrest warrant 2 does not represent a commitment to prosecute, id. at 506- 3 508; rather, that commitment is made only when the state -- 4 following the defendant's arrest -- files the information 5 and arrest warrant with the court at the defendant's 6 arraignment, id. at 508.
Moore attempts to distinguish Pierre by drawing a 8 distinction between the "signing" of the information by 9 prosecutors in Pierre, and the "filing" of that information 10 with the court. But Pierre expressly stated that (as here) 11 the arrest warrant application approved by the superior 12 court included an attached information signed by a state's 13 attorney. 890 A.2d at 504. Pierre held that "it was not 14 until the entire arrest warrant, with the attached signed 15 information, was filed with the court at arraignment that 16 the document became an information within [S]ixth 17 [A]mendment jurisprudence, thus triggering the defendant's 18 constitutional right to counsel." Id. (emphasis added). 19 Like the sworn complaint in Duvall and the information in 20 Pierre, the information in this case initially "function[ed] 21 . . . as a basis for an application for an arrest warrant," 22 Duvall, 537 F.2d at 22 (internal quotation marks omitted) 1 "a prelude to a criminal prosecution . . . rather than the 2 initiation of an adversarial judicial proceeding in its own 3 right," Pierre, 890 A.2d at 508.
The precedents of this Court cited by Moore are not to 5 the contrary. In United States v. Mills, 412 F.3d 325, 328 6 (2d Cir. 2005), we assumed that the right to counsel 7 attached before a defendant's first appearance before a 8 judicial officer because, "[f]or the purposes of th[at] 9 appeal, the government d[id] not challenge the District 10 Court's determination that the police officers violated 11 Mills's right to counsel as to the state charges" by 12 interrogating him after he was charged but prior to his 13 arraignment. Accord id. at 326.*fn8
In United States v. Worjloh, 546 F.3d 104, 108 (2d Cir. 15 2008) (per curiam), the defendant also relied on Mills, and 16 we made clear that such reliance was misplaced because Mills 17 proceeded based on the government's concession.
Accordingly, Moore's Sixth Amendment right to counsel 19 had not attached before he was interrogated, and the 1 district court correctly denied his motion to suppress on 2 that basis.
Independently, Moore's argument fails because even if 6 his right to counsel had attached to the state charges, it 7 had not attached to the federal charge for which he pleaded 8 guilty below.
"[T]he Sixth Amendment right is 'offense
10 meaning that even when the right to counsel attaches for
11 offense, that does not mean that the defendant has a
12 to counsel for all ongoing criminal investigations.
13 v. Cobb, 532 U.S. 162, 164 (2001) (quoting McNeil
14 Wisconsin, 501 U.S. 171 (1991)). "[T]he definition of
15 'offense,'" however, "is not necessarily limited to the
16 corners of a charging instrument." Id. at 173.
17 "'where the same act or transaction constitutes a
18 of two distinct statutory provisions, the test to be
19 to determine whether there are two offenses or only one,
20 whether each provision requires proof of a fact which
21 other does not.'" Id. (quoting Blockburger v.
1 States, 284 U.S. 299, 304 (1932)).*fn9
2 Moore was charged with (and pleaded guilty to) the
3 federal crime of being a felon in possession of a
4 The elements of such an offense are (1) that the
5 is a felon, (2) who possesses a firearm or ammunition,
6 which has been shipped or transported in interstate
7 commerce. 18 U.S.C. § 922(g). Moore was charged
8 various state crimes including (1) two counts of attempt
9 commit felony murder; (2) two counts of criminal use of
10 firearm; (3) two counts of attempt to commit first
11 robbery; (4) two counts of conspiracy to commit first
12 robbery; (5) first degree reckless endangerment; (6)
13 involving an occupied motor vehicle; and (7) third
14 assault. The only one of those offenses that even
15 overlaps with the federal charge is criminal use of
16 firearm under Conn. Gen. Stat. § 53a-216(a). The
17 of that crime are (1) commission of a felony, (2) in
18 the defendant uses or threatens to use a firearm. Id.
federal charge has the added element that the defendant
2 be a felon, and one element of the state offense (that
3 missing from the federal statute) is that the defendant
4 use or threaten to use the firearm in the commission of
5 felony. Accordingly, under Blockburger, they are
Moore argues the offenses are the same because Moore 8 received an increased sentence because he "used or possessed 9 a firearm . . . in connection with another felony offense 10 ." U.S.S.G. § 2K2.1(b)(6).
According to Moore's brief, when the Guidelines are "an 12 integral component of the federal charge . . . , the state 13 statute can be seen as a lesser included offense of the 14 federal statute since it requires proof that the defendant 15 had used a firearm in committing a felony . . . ." Moore 16 does not explain, nor is it readily apparent, why the 17 Guidelines should be considered an integral component of a 18 federal offense. Moreover, any such argument is refuted by 19 the offense-specific, Sixth Amendment jurisprudence, which 20 determines whether two offenses overlap based on the 21 elements of the offenses and whether there are any elements 22 present in one of the offenses but not the other. See Cobb, 1 532 U.S. at 173; see also Blockburger, 284 U.S. at 304. 2 Sentencing enhancements are separate from the offense and 3 related conduct, which is why a defendant can receive an 4 enhancement as to one offense based on particular conduct 5 and then be prosecuted separately based on that same 6 conduct. See Witte v. United States, 515 U.S. 389, 399-404 7 (1995); United States v. Grisanti, 116 F.3d 984, 987-88 (2d 8 Cir. 1997).
Because the Sixth Amendment is offense specific and the 10 state and federal offenses charged against Moore are 11 distinct offenses under the Sixth Amendment, Moore's Sixth 12 Amendment right to counsel was not violated by his post- 13 arrest questioning. The district court therefore did not 14 err in denying Moore's motion to suppress for the alleged 15 violation of his Sixth Amendment right to counsel.
We have carefully considered all of Moore's remaining 19 arguments and find them to be without merit. Accordingly, 20 the judgment of the district court is affirmed.