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United States v. Chauncey Moore

February 22, 2012

UNITED STATES, APPELLEE,
v.
CHAUNCEY MOORE, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Dennis Jacobs, Chief Judge:

10-2740-cr

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.

BACKGROUND

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 ...


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