L United States v. Taylor UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4 August Term,…

11-2201(L)
United States v. Taylor
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2013 5
6
7
Argued: February 4, 2013 Decided: December 4, 2013 8
Petition for Rehearing Filed: January 17, 2014 9
Decided: March 4, 2014 10
11
Docket Nos. 11-2201(L), 11-2426(CON), 11-2639(CON) 12
13
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15
UNITED STATES OF AMERICA, 16
17
Appellee, 18
19
- v.- 20
21
CURTIS TAYLOR, ANTONIO ROSARIO, AKA Chickee, SAMUEL VASQUEZ, 22
AKA Rock, 23
24
Defendants-Appellants. 25
26
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28
Before: KEARSE, JACOBS and CARNEY, 29
Circuit Judges. 30
31
Curtis Taylor, Antonio Rosario, and Samuel Vasquez 32
appeal the judgments of the United States District Court for 33
the Southern District of New York (Marrero, J.), convicting 34
them of various charges related to a robbery of a pharmacy 35
in midtown Manhattan. Because Taylor’s post-arrest 36
statements were not voluntary, and were not properly 37

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redacted, the convictions are VACATED, and the case is 1
REMANDED for a new trial. 2
KELLEY J. SHARKEY, Brooklyn, New 3
York, for Defendant-Appellant 4
Curtis Taylor. 5
6
JILLIAN S. HARRINGTON, Monroe 7
Township, New Jersey, for 8
Defendant-Appellant Antonio 9
Rosario. 10
11
COLLEEN P. CASSIDY, Federal 12
Defenders of New York, Inc., New 13
York, New York, for Defendant- 14
Appellant Samuel Vasquez. 15
16
CHRISTOPHER D. FREY (Michael 17
Bosworth, on the brief), 18
Assistant United States 19
Attorneys, for Preet Bharara, 20
United States Attorney for the 21
Southern District of New York, 22
New York, New York, for 23
Appellee. 24
25
DENNIS JACOBS, Circuit Judge: 26
27
The United States petitions for rehearing following our 28
decision in United States v. Taylor, 736 F.3d 661 (2d Cir. 29
2013). The petition is granted, and the opinion filed 30
December 4, 2013 is withdrawn. For the reasons that follow 31
in our revised opinion, we vacate the convictions of the 32
three defendants and remand for a new trial. 33
Curtis Taylor, Antonio Rosario, and Samuel Vasquez 34
appeal judgments of conviction entered in the United States 35
2

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District Court for the Southern District of New York 1
(Marrero, J.) for conspiring to commit Hobbs Act robbery and 2
brandishing a firearm during a crime of violence, among 3
other offenses related to the robbery of a pharmacy in 4
midtown Manhattan. Taylor, who claims to have attempted 5
suicide by pills as he was arrested, argues that he was 6
incapacitated when he incriminated himself post-arrest, and 7
that the court’s decision to admit those statements into 8
evidence violated his rights under Miranda v. Arizona, 384 9
U.S. 436 (1966), and the Due Process Clause of the 10
Constitution. Rosario and Vasquez, who raise separate 11
issues, join Taylor’s challenge to the extent that Taylor’s 12
confession was used against them, and appeal the denial of 13
their motion to sever on the ground that Taylor’s statements 14
caused prejudicial spillover and violated the confrontation 15
right protected under Bruton v. United States, 391 U.S. 123 16
(1968). 17
This is a close case. But even assuming that Taylor’s 18
initial waiver of his Miranda rights was knowing and 19
voluntary, Taylor was largely stupefied when he made his 20
post-arrest statements, as confirmed by the testimony of the 21
law enforcement agents and the pretrial services officer who 22
3

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interviewed him, and by the evaluations of staff 1
psychologists at the Metropolitan Correctional Center 2
(“MCC”). The agents and officer testified that Taylor fell 3
asleep repeatedly during questioning and was only 4
intermittently alert. Although their testimony also 5
suggests--and the district court found--that Taylor’s 6
incriminating statements were made in relatively lucid 7
intervals, Taylor was impaired throughout, and his 8
interrogators took undue advantage of that impairment by 9
continuing to question him. We therefore conclude that 10
Taylor’s post-arrest statements were not voluntary. We 11
further conclude that admitting those statements into 12
evidence was not harmless. His conviction is therefore 13
vacated and remanded for a new trial. And because Taylor’s 14
statements were redacted in a manner that left obvious 15
indicia that the co-defendants’ names had been deleted, 16
their convictions are also vacated and remanded for a new 17
trial. 18
I 19
On Christmas Eve 2008, Vasquez drove Taylor and Rosario 20
from the Bronx to midtown Manhattan to rob a pharmacy. With 21
them was Luana Miller, a drug addict from Mississippi with 22
an extensive criminal history. 23
4

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En route, Miller called the pharmacy and asked them to 1
stay open for a few minutes past 5:00 PM, so that she could 2
pick up a prescription. At the pharmacy, Miller went in 3
first, posing as a customer. As she spoke with the 4
pharmacist, Rosario burst in the door brandishing a gun, 5
screaming that it was a robbery, and demanding OxyContin: a 6
powerful opioid for pain that is often resold illegally. 7
The two took more than $12,000 of controlled substances, as 8
well as cash and subway cards, while Taylor stood lookout at 9
the front door and Vasquez waited in the getaway car. The 10
crew then drove back to the Bronx. Cell phone records for 11
Taylor, Rosario, and Vasquez show that they were in the 12
Bronx that afternoon, traveled to midtown Manhattan just 13
before 5:00 PM, stayed near the pharmacy until just after 14
the robbery, and then returned to the Bronx. 15
While executing a warrant at the home of Miller’s 16
boyfriend in January 2009, police arrested her on 17
outstanding warrants. Fearing extradition to Mississippi, 18
she offered to cooperate with the government’s investigation 19
of the pharmacy robbery, and led police to Taylor, Rosario, 20
and Vasquez. 21
Around 6:00 AM on April 9, 2009, over 25 NYPD and FBI 22
agents came to Taylor’s apartment to effect his arrest. 23
5

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Taylor claims that, amid the ensuing chaos, he attempted 1
suicide by taking a bottle-full of Xanax pills. Taylor’s 2
daughter testified that her mother (who died before trial) 3
reported the overdose to an officer who dismissed her and 4
told her to “shut up.” Still, the record is less than clear 5
as to whether Taylor actually took the pills, and as to 6
whether officers were told of his overdose. 7
Around 9:30 that morning, Taylor was interviewed at FBI 8
headquarters in downtown Manhattan by New York City Police 9
Department Detective Ralph Burch, a member of an FBI/New 10
York health care fraud task force. Taylor signed a form 11
waiving his Miranda rights, and went on to give a lengthy 12
statement confessing his involvement in the robbery. 13
Taylor argues that he was falling asleep and was at 14
times unconscious during the interview. Detective Burch 15
said that it seemed like Taylor’s body was “somewhat 16
shutting down” during the two- to three-hour interview. 17
Supplemental App. 51. On the other hand, Burch testified 18
that, though Taylor nodded off at times, he was “coherent” 19
and “fluid” when he was awake and speaking: 20
Mr. Taylor at times was nodding off during the 21
interview. When we asked Mr. Taylor to listen up, 22
that we were asking him questions, he would 23
respond that he knew what he was being asked and 24
he would repeat the questions back to us to show 25
6

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that he was understanding what was being asked of 1
him and knew what was going on. 2
3
Id. at 45. Detective Burch clarified that Taylor did not 4
need to be awakened during the interview; he just had to be 5
“refocused.” Id. at 46. “He seemed like he was dozing off, 6
and we had to stress did he understand what was going on. 7
. . . [I]t was my impression that he knew what was going on 8
then.” Id. 9
Taylor was later taken to a hospital for medical 10
clearance before his transfer into the custody of the 11
Marshals Service. FBI Special Agent Ian Tomas, who was also 12
involved in the interrogation, explained that Taylor was 13
taken to the hospital because “[t]here was some talk about 14
him on some medication and possibly an injury he had 15
sustained previous at a construction site.” Id. at 137. 16
Agent Tomas clarified that the hospital visit was necessary 17
because there was some question as to whether the Marshals 18
Service would take custody of someone who “might be off”: 19
“We felt that his do[z]ing off might be a reason the 20
marshals wouldn’t accept the custody of Mr. Taylor.” Id. at 21
160. Taylor spent the rest of the day at the hospital 22
sleeping, but he did not receive medical attention. He was 23
transferred to the MCC later that evening. 24
7

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The next morning, April 10, Taylor met with MCC staff 1
psychologists. The MCC’s chief psychologist, Dr. Elissa 2
Miller, explained that they wanted to evaluate Taylor before 3
his arraignment because they knew of Taylor’s earlier 4
schizophrenia diagnosis and several prior attempts at 5
suicide. According to Dr. Miller (who reported on findings 6
by staff psychologists), Taylor “presented with a thought 7
disorder,” drooled, was vague, stared blankly, and “[h]is 8
thoughts lacked spontaneity.” Id. at 110. Miller testified 9
that “if you asked him questions, he really couldn’t 10
elaborate on them because his thought process was impaired.” 11
Id. at 111. 12
Taylor also told one of the staff psychologists that 13
“the day he was arrested by the FBI, he took multiple Xanax 14
pills in an attempt to kill himself because he had promised 15
himself that he would never go back to jail.” Id. at 113. 16
Taylor told Miller that, “[a]s a result of taking all those 17
Xanax pills, he . . . wasn’t waking up and he went to the 18
hospital.” Id. 19
He was then taken to the courthouse for arraignment. 20
While awaiting arrival of a pretrial services officer, 21
Taylor told Agent Tomas that “he wanted to clear up some 22
issues about the charges that he was presented with.” Id. 23
8

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at 139. Agent Tomas took Taylor to an interview room and 1
again advised him of his Miranda rights; Taylor confessed to 2
the robbery again. 3
Around 12:30 PM that day, Taylor met with Dennis 4
Khilkevich, a pretrial services officer. Khilkevich 5
testified that when he arrived for the interview, Taylor 6
“appeared sleepy and had to be awakened to be interviewed.” 7
Id. at 319. “He was sitting in a chair and he appeared as 8
if he was asleep or he was taking a nap.” Id. Khilkevich 9
stopped the interview because Taylor “repeatedly fell asleep 10
in the chair.” Id. at 320. When the interview resumed, 11
Taylor “was initially responsive maybe for several minutes,” 12
but “[t]hen he continued to fall asleep.” Id. “He had to 13
be woken up and he would be responsive for a few minutes and 14
then he would go to sleep again.” Id. Khilkevich 15
eventually finished the interview, explaining that Taylor 16
was awake and coherent “[a]t times.” Id. at 323. 17
As to the other defendants: 18
• Rosario was also arrested on April 9, 2009, and 19
waived his Miranda rights. He claimed at first 20
that he was in the hospital the day of the 21
robbery, but then said he had actually been at his 22
girlfriend’s house in Queens. When told that a 23
9

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surveillance video showed a suspect like him, 1
Rosario laughed and ambiguously said “yeah.” 2
Trial Transcript (“Tr.”) 571. 3
• Vasquez was arrested a day earlier, on April 8, 4
after surveillance linked him to the car believed 5
to have been used in the pharmacy robbery. When 6
arrested, he was carrying car keys, a cell phone, 7
and a piece of paper listing various milligram 8
doses of oxycodone and OxyContin, along with the 9
number of pills of each dose. Vasquez gave no 10
statement to police. 11
The indictment charged the three with (1) conspiracy to 12
commit Hobbs Act robbery, in violation of 18 U.S.C. § 13
1951(b)(1); (2) Hobbs Act robbery; and (3) use, possession, 14
and brandishing of a firearm during a crime of violence, in 15
violation of 18 U.S.C. § 924(c)(1)(A)(ii). Taylor was 16
additionally charged with (4) fraudulent acquisition of 17
controlled substances by passing forged prescriptions, in 18
violation of 21 U.S.C. § 843(a)(3). 19
Taylor moved to suppress his two post-arrest statements 20
on the ground that his Miranda waivers and his post-arrest 21
statements were neither knowing nor voluntary. The 22
testimony summarized above was given at the suppression 23
10

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hearing (starting April 23, 2010, continuing May 4, 2010, 1
and concluding May 6, 2010). The district court denied 2
suppression of Taylor’s post-arrest statements, finding that 3
the government sustained its burden of proving that Taylor’s 4
Miranda waivers were “informed and voluntary.” Supplemental 5
App. 385. The court found that the testimony of the law 6
enforcement agents was consistent, corroborated, and 7
truthful. Id. at 386-87. 8
The court rejected the argument that Taylor’s 9
incapacitation rendered his post-arrest statements 10
involuntary: 11
[T]he defense does not allege that the government 12
failed to read Mr. Taylor [his] rights before 13
questioning began or any other coercion. Even 14
were the Court to assume that Mr. Taylor ingested 15
a large quantity of Xanax shortly before his 16
arrest, the Court credits the testimony from the 17
government’s witnesses that Mr. Taylor was 18
sufficiently lucid during the questioning that his 19
waiver of Miranda rights was knowing and 20
voluntary. 21
22
The fact that there is evidence that Mr. Taylor 23
nodded off from time to time during the 24
questioning does not persuade the Court that 25
during those portions of the testimony when he was 26
awake and lucid he could not have voluntarily and 27
knowingly waived his Miranda rights. 28
Id. at 387-88. The district court went on to explain that 29
it did “not equate nodding off intermittently with total 30
psychotic episodes of hallucination and other extreme 31
11

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circumstances that might throw greater doubt on the 1
defendant’s ability to voluntarily and knowingly waive his 2
rights.” Id. at 388. 3
Taylor’s statements, which implicated Rosario and 4
Vasquez, were redacted at trial to remove their names. The 5
jury was instructed that Taylor’s statements should be 6
considered only as to Taylor. 7
In December 2010, the jury convicted on all counts. 8
Taylor was sentenced principally to 200 months’ 9
imprisonment, Rosario was sentenced principally to 180 10
months, and Vasquez was sentenced principally to 170 months. 11
They all filed timely notices of appeal. 12
13
II 14
The main issue on appeal is whether Taylor’s Miranda 15
waivers on April 9 and April 10, and his post-arrest 16
statements on each of those dates, were knowing and 17
voluntary. “We review a district court’s determination 18
regarding the constitutionality of a Miranda waiver de novo 19
and a district court’s underlying factual findings for clear 20
error.” United States v. Carter, 489 F.3d 528, 534 (2d Cir. 21
2007). 22
12

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A statement made by the accused “during a custodial 1
interrogation is inadmissible at trial unless the 2
prosecution can establish that the accused in fact knowingly 3
and voluntarily waived [Miranda] rights when making the 4
statement.” Berghuis v. Thompkins, 560 U.S. 370, 382 (2010) 5
(internal quotation marks omitted). “The existence of a 6
knowing and voluntary waiver does not, however, guarantee 7
that all subsequent statements were voluntarily made.” In 8
re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 9
177, 211-12 (2d Cir. 2008); see also Dickerson v. United 10
States, 530 U.S. 428, 444 (2000) (“The requirement that 11
Miranda warnings be given does not, of course, dispense with 12
the voluntariness inquiry.”). 13
We look at the totality of circumstances surrounding a 14
Miranda waiver and any subsequent statements to determine 15
knowledge and voluntariness. See Oregon v. Elstad, 470 U.S. 16
298, 309 (1985). In that context, “knowing” means with full 17
awareness of the nature of the right being abandoned and the 18
consequences of abandoning it, and “voluntary” means by 19
deliberate choice free from intimidation, coercion, or 20
deception. United States v. Plugh, 648 F.3d 118, 127 (2d 21
Cir. 2011), cert. denied, 132 S. Ct. 1610 (2012). The 22
13

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government bears the burden of proof. Colorado v. Connelly, 1
479 U.S. 157, 168-69 (1986). 2
3
The analysis applicable to April 9 differs somewhat 4
from the analysis applicable to April 10. 5
April 9. In general, a suspect who reads, 6
acknowledges, and signs an “advice of rights” form before 7
making a statement has knowingly and voluntarily waived 8
Miranda rights. See Plugh, 648 F.3d at 127-28. Before 9
making his April 9 statement, Taylor was given Miranda 10
rights using an “advice of rights” form. He was read every 11
right, voiced his understanding, and signed the form. At 12
the time, according to Detective Burch, Taylor had a “fluid” 13
demeanor, “knew what was going on,” and “understood what was 14
happening.” Supplemental App. 15. This evidence, credited 15
by the district court, supports the conclusion that Taylor 16
knowingly and voluntarily waived his Miranda rights before 17
speaking with law enforcement on April 9. 18
But even accepting that Taylor’s April 9 Miranda waiver 19
was knowing and voluntary, we must nonetheless determine 20
whether the inculpatory statements themselves were 21
voluntary. Dickerson, 530 U.S. at 444. “A confession is 22
14

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not voluntary when obtained under circumstances that 1
overbear the defendant’s will at the time it is given.” 2
United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991). 3
The voluntariness inquiry should examine “the totality of 4
all the surrounding circumstances, including the accused’s 5
characteristics, the conditions of interrogation, and the 6
conduct of law enforcement officials.” Id. An individual’s 7
mental state should be considered in the voluntariness 8
inquiry to the extent it allowed law enforcement to coerce 9
the individual. Connelly, 479 U.S. at 164-65; see also 10
United States v. Salameh, 152 F.3d 88, 117 (2d Cir. 1998) 11
(per curiam). 12
The record indicates that Taylor’s April 9 statement 13
was made when he was unable to summon the will to make a 14
knowing and voluntary decision; his will was overborne. 15
It is difficult to determine whether a confession is 16
voluntary; case law “yield[s] no talismanic definition” for 17
the term. Schneckloth v. Bustamonte, 412 U.S. 218, 224 18
(1973). It is clear, however, that when “a person is 19
unconscious or drugged or otherwise lacks capacity for 20
conscious choice,” a confession cannot be voluntary. Id. 21
(internal quotation marks omitted); see also United States 22
15

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ex rel. Burns v. LaVallee, 436 F.2d 1352, 1355-56 (2d Cir. 1
1970) (holding a written confession to be involuntary when 2
given “after over eighteen hours of uninterrupted custodial 3
interrogation, after he had been without sleep, and almost 4
without food, for thirty hours”). 5
Taylor claims he was mentally incapacitated during the 6
April 9 interview because of the quantity of Xanax pills he 7
ingested immediately before his arrest. That claim finds 8
support in the record. Detective Burch testified that 9
Taylor’s body “was somewhat shutting down,” and that “at 10
that time that he was answering questions . . . his body was 11
giving up on him.” Supplemental App. 51. The district 12
court credited this testimony. Granted, Burch also 13
testified that, when Taylor was speaking, he was “coherent” 14
and understood what was going on when he was not nodding 15
off. Id. But it nonetheless appears that Taylor fell 16
asleep at least two or three times during the interview, and 17
the officers repeatedly had to awaken him, or (to use the 18
nicer term) “refocus” him--at one point coaxing him, “Mr. 19
Taylor, you have to answer our questions and focus with us.” 20
Id. at 47. Agent Tomas corroborated that Taylor was “a 21
little bit out of it” and dozing off. Id. at 158-61. 22
16

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In Mincey v. Arizona, 437 U.S. 385 (1978), statements 1
by a defendant who was hospitalized were ruled involuntary. 2
The Court observed that the defendant was in intensive care 3
for a serious wound and was “evidently confused and unable 4
to think clearly about either the events of that afternoon 5
or the circumstances of his interrogation.” Id. at 398. 6
The statements were “the result of virtually continuous 7
questioning of a seriously and painfully wounded man on the 8
edge of consciousness.” Id. at 401; see also id. (“But 9
despite [the accused’s] entreaties to be let alone, [the 10
police officer] ceased the interrogation only during 11
intervals when [the accused] lost consciousness or received 12
medical treatment, and after each such interruption returned 13
relentlessly to his task.”). 14
On the other hand, in Salameh, we rejected a claim that 15
a statement was involuntary, even though the accused claimed 16
that prior to being taken into U.S. custody, he had been 17
incarcerated in Egypt and tortured for ten days. 152 F.3d 18
at 117. Despite the accused’s weakened mental state, his 19
statements were voluntary because he did “not contend that 20
federal agents either mentally or physically coerced his 21
remarks during that interrogation.” Id.; see also Plugh, 22
17

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648 F.3d at 128 (statements voluntary because defendant “was 1
never threatened physically or psychologically abused in any 2
manner, or made any type of promises such that his will was 3
overborne”) (internal quotation marks omitted). 4
One difference between Mincey and Salameh is the 5
presence in Mincey of police overreaching, see Connelly, 479 6
U.S. at 157 (stressing the "crucial element of police 7
overreaching" in assessing voluntariness), and that is no 8
doubt a difficult issue here. Continued questioning of a 9
sleep-deprived suspect can be coercive, depending on the 10
circumstances, see, e.g., Mincey, 437 U.S. at 401; LaVallee, 11
436 F.2d at 1355-56; but the decisive issue is whether the 12
will was “overborne” by the police, so that the defendant is 13
not using such faculties as he has. The conditions in which 14
Taylor was questioned do not appear to have been abusive; 1
15
but there is little difference in effect between sleep 16
deprivation as a technique and the relentless questioning of 17
a person who is obviously unable to focus or stay awake for 18
some other reason. 19
20
1 The law enforcement agents, though persistent in
interrogating Taylor and summoning him to alertness as he
continued to fall asleep, do not appear to have acted
maliciously or abusively during the interrogation.
18

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The district court credited testimony that Taylor was 1
coherent at times. One such interval is when Taylor signed 2
the “advice of rights” form on April 9, a finding that we do 3
not disturb. But as that interview progressed, it became 4
clear to the officers (as their testimony confirms) that 5
Taylor was in and out of consciousness while giving his 6
statement, and in a trance or a stupor most of the time when 7
not actually asleep. Thus, the officers’ persistent 8
questioning took undue advantage of Taylor’s diminished 9
mental state, and ultimately overbore his will. 10
Accordingly, we conclude that Taylor’s statement on April 9 11
was not voluntary and should have been suppressed. 12
13
April 10. On the morning of April 10, Taylor himself 14
initiated contact with law enforcement by notifying Agent 15
Tomas that “he wanted to clear up some issues about the 16
charges that he was presented with.” Supplemental App. 139. 17
He was then orally re-advised of his rights, orally waived 18
them, and gave an additional statement, altering some 19
aspects of his April 9 account. Although Taylor continued 20
to slip in and out of consciousness that day, Agent Tomas 21
testified that, when Taylor spoke to the agents mid-morning, 22
19

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he was “much more alert” than he had been the day before. 2
1
Id. at 139-42. But because Taylor’s first confession on 2
April 9 was the product of coercion, we must determine 3
whether his second waiver and confession, less than twenty- 4
four hours later, were rendered involuntary based, at least 5
in part, on the "taint clinging to the first confession." 6
Anderson, 929 F.2d at 102. 7
“[T]he use of coercive and improper tactics in 8
obtaining an initial confession may warrant a presumption of 9
compulsion as to a second one, even if the latter was 10
obtained after properly administered Miranda warnings." 11
Tankleff v. Senkowski, 135 F.3d 235, 245 (2d Cir. 1998) 12
(internal quotation marks omitted). That is so because, 13
“after an accused has once let the cat out of the bag by 14
confessing, no matter what the inducement, he is never 15
thereafter free of the psychological and practical 16
disadvantages of having confessed.” United States v. Bayer, 17
331 U.S. 532, 540 (1947). 18
“In deciding whether a second confession has been 19
tainted by the prior coerced statement, ‘the time that 20
passes between confessions, the change in place of 21
2 As discussed further below, it is not at all clear
that Taylor was appreciably more alert.
20

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interrogations, and the change in identity of interrogators 1
all bear on whether that coercion has carried over into the 2
second confession.’” Anderson, 929 F.2d at 102 (quoting 3
Elstad, 470 U.S. at 310). Less than a day passed between 4
Taylor’s first and second confessions, and in that interval, 5
Taylor was hospitalized or unconscious most of the time. 6
Although the venue of the interrogations differed, Agent 7
Tomas was present at both--and it was to Agent Tomas that 8
Taylor addressed his request to “clear up some issues.” The 9
taint of the prior involuntary confession carried over to 10
Taylor’s second waiver and statement, burdening both with a 11
“presumption of compulsion.” Tankleff, 135 F.3d at 245. 12
That presumption is reinforced by uncontradicted 13
testimony regarding Taylor’s lingering mental incapacity on 14
April 10. Taylor continued to doze off that morning and was 15
alert only “at times.” Supplemental App. 162. Just before 16
the April 10 interview, FBI Special Agent Steven Jensen saw 17
Taylor “slouched in his chair, and he appeared to be 18
sleeping.” Id. at 247. When asked for how long Taylor was 19
asleep, Agent Jensen explained (ambiguously) that it was “in 20
excess of minutes.” Id. 21
22
21

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Although the record does not suggest that Taylor fell 1
asleep during the April 10 interview, there is evidence 2
that, throughout the day on April 10, Taylor remained in a 3
fog. Dr. Miller reported that Taylor was mentally impaired 4
on the morning of April 10 and could not adequately respond 5
to questions: 6
When he was seen, he presented with a thought 7
disorder. He was noted to be picking at his 8
nails. He was drooling. He was vague in his 9
responses to questioning. He presented with what 10
we call a flat affect . . . just kind of flat and 11
blank-face stare. 12
13
He could not elaborate on questions asked. His 14
thoughts lacked spontaneity. His speech was 15
vague. When we would ask him certain questions 16
about whether he was hearing voices, he couldn’t 17
really elaborate on his responses. 18
19
Id. at 110. Dr. Miller also reported the observation made 20
by psychologists in her division: “[I]f you asked him 21
questions, he really couldn’t elaborate on them because his 22
thought process was impaired.” Id. at 111. 23
Dennis Khilkevich, a pretrial services officer who 24
interviewed Taylor at around 12:30 PM on April 10, found 25
Taylor drowsy and in need of rousing. See id. at 319 (“He 26
was sitting in a chair and he appeared as if he was asleep 27
or taking a nap.”). When Khilkevich tired of waking him up, 28
he suspended the interview; and when he resumed, Taylor 29
22

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continued to fall asleep between short intervals of 1
consciousness, so Khilkevich ended the questioning. 2
The district court did not discredit the testimony of 3
Dr. Miller or Khilkevich. 4
Evidence of Taylor’s continued incapacity on April 10, 5
coupled with the taint of his prior confession, renders his 6
second waiver and statement involuntary. Considering the 7
totality of circumstances, we conclude that Taylor’s 8
inculpatory statement on April 10 should have been 9
suppressed.3
10
11
III 12
Next we consider whether the error in admitting those 13
statements was harmless. Arizona v. Fulminante, 499 U.S. 14
279, 310-11 (1991) (Rehnquist, C.J., writing for a majority 15
as to harmless error analysis); see also Zappulla v. New 16
York, 391 F.3d 462, 466 (2d Cir. 2004). “When reviewing the 17
erroneous admission of an involuntary confession, the 18
appellate court, as it does with the admission of other 19
3 When it appears that a defendant is malingering, the
calculus should be vastly different. Here, all the
witnesses support the account that Taylor was actually
slipping in and out of consciousness during the April 9
interview, and immediately before and after the April 10
interview.
23

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forms of improperly admitted evidence, simply reviews the 1
remainder of the evidence against the defendant to determine 2
whether the admission of the confession was harmless beyond 3
a reasonable doubt.” Fulminante, 499 U.S. at 310 (emphasis 4
added). 5
“Is it clear beyond a reasonable doubt that a rational 6
jury would have found the defendant guilty absent the 7
error?” Neder v. United States, 527 U.S. 1, 18 (1999). 8
“[T]he court conducting a harmless-error inquiry must 9
appreciate the indelible impact a full confession may have 10
on the trier of fact,” Fulminante, 499 U.S. at 313 (Kennedy, 11
J., concurring); “it may be devastating to a defendant,” 12
Id. at 312 (Rehnquist, C.J., writing for a majority as to 13
harmless error analysis). The following (nonexclusive) 14
factors bear on whether the erroneous admission of a 15
confession was harmless: “(1) the overall strength of the 16
prosecution’s case; (2) the prosecutor’s conduct with 17
respect to the improperly admitted evidence; (3) the 18
importance of the wrongly admitted testimony; and (4) 19
whether such evidence was cumulative of other properly 20
admitted evidence.” Zappulla, 391 F.3d at 468. 21
The admission of Taylor’s involuntary confessions was 22
not harmless error beyond a reasonable doubt. (1) Taylor’s 23
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confessions were a critical part of the prosecution’s case. 1
The case against Taylor otherwise rested on the testimony of 2
Luana Miller and cell-site records. Miller’s testimony was 3
subject to attack, as Taylor claims, because of her criminal 4
past and because she had much to gain from cooperating with 5
the government. Further, while the cell-site records 6
corroborate Miller’s account of their movements, no other 7
witness or physical evidence links Taylor to the crime. (2) 8
The prosecution emphasized Taylor’s confessions throughout 9
trial, including at opening and closing, and had both 10
statements read to the jury in full. (3) & (4) Taylor’s 11
confessions were important to the case, corroborating 12
Miller’s critical testimony. Further, a confession is 13
recognized to have greater impact than the same testimony 14
given by another witness. See, e.g., Fulminante, 499 U.S. 15
at 312-13. Given the weight that a jury may accord a 16
confession, as well as the other relevant factors, the 17
admission of Taylor’s post-arrest statements was not 18
harmless. 19
In sum, Taylor confessed while in a stupor, his will 20
was overborne, his statements were not voluntarily made, and 21
they should have been suppressed. Considering the other 22
evidence against Taylor and the important role that his 23
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confessions played at trial, this was not harmless error. 1
We therefore vacate Taylor’s conviction and remand for a new 2
trial.4
3
4
IV 5
Rosario and Vasquez argue that the admission of 6
Taylor’s post-arrest statements violated their rights under 7
the Confrontation Clause because they had no opportunity to 8
cross-examine Taylor and because his statements pointed to 9
them. 10
It matters that the district court gave limiting 11
instructions. The court instructed that “[s]ome evidence is 12
admitted for a limited purpose only,” and pointed 13
specifically to “certain statements that law enforcement 14
agents testified were made to them by Mr. Taylor and Mr. 15
Rosario and that were admitted only as to the particular 16
defendant who made the statement.” Vasquez App. 220. The 17
court later reinforced that instruction: 18
4 Aside from Counts One, Two, and Three of the
indictment, which stemmed from the pharmacy robbery (of
which all three defendants were convicted), Taylor was also
convicted of making a misrepresentation to obtain OxyContin
(Count Four). The government relied heavily on Taylor’s
confession in proving this offense. Accordingly, we vacate
all of Taylor’s counts of conviction, under the same
harmless error analysis.
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As I instructed you previously, evidence of 1
statements that law enforcement agents testified 2
were made by a particular defendant was admitted 3
with respect to that particular defendant alone, 4
and if you find that the statements were made, may 5
not be considered or discussed by you in any way 6
with respect to any other defendant when you begin 7
your deliberations. 8
9
Id. at 227; see also id. at 177 (“The evidence of alleged 10
statements made by Curtis Taylor to law enforcement is 11
admitted with respect to Curtis Taylor alone and may not be 12
considered or discussed by you in any way with respect to 13
either of the other defendants . . . .”). 14
We normally assume that jurors follow limiting 15
instructions. See, e.g., United States v. Jass, 569 F.3d 16
47, 55 (2d Cir. 2009). But a confession by one co-defendant 17
in a joint trial poses substantial risk for the other co- 18
defendants notwithstanding such an instruction. See Bruton 19
v. United States, 391 U.S. 123, 135-36 (1968). In Bruton, 20
the Supreme Court recognized the risks posed by “powerfully 21
incriminating extrajudicial statements of a co-defendant, 22
who stands accused side-by-side with the defendant,” which 23
are then “deliberately spread before the jury in a joint 24
trial.” Id. Such limiting instructions call for “a mental 25
gymnastic which is beyond, not only [the jury’s] powers, but 26
anybody’s else.” Nash v. United States, 54 F.2d 1006, 1007 27
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(2d Cir. 1932) (L. Hand, J.). The risk is heightened when 1
the circumstances deprive a defendant of the constitutional 2
right to confront the witnesses against him. See Gray v. 3
Maryland, 523 U.S. 185, 196 (1998). 4
“The crux of [the Confrontation Clause] is that the 5
government cannot introduce at trial statements containing 6
accusations against the defendant unless the accuser takes 7
the stand against the defendant and is available for cross 8
examination.” Jass, 569 F.3d at 55 (internal quotation 9
marks omitted). When the confession of one defendant 10
implicates his co-defendants, Bruton demands “a redaction 11
and substitution adequate to remove the ‘overwhelming 12
probability’ that a jury will not follow a limiting 13
instruction that precludes its consideration of a redacted 14
confession against a defendant other than the declarant.” 15
Id. at 60. Accordingly, “redacted confessions ‘that simply 16
replace a name with . . . obvious indications of alteration’ 17
fall within Bruton because they ‘refer[ ] directly to the 18
“existence” of the nonconfessing defendant.’” Id. at 58 19
(quoting Gray, 523 U.S. at 192) (emphasis in original). 20
Redactions and substitutions can avoid Bruton error if 21
the altered statement uses words “that might actually have 22
been said by a person admitting his own culpability in the 23
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charged conspiracy while shielding the specific identity of 1
his confederate.” Id. at 62. Along these lines, we have 2
previously allowed proper names to be replaced with the 3
following terms (among others): “another person,” id. at 59; 4
“others,” “other people,” and “another person,” United 5
States v. Tutino, 883 F.2d 1125, 1135 (2d Cir. 1989); the 6
pronoun “he,” United States v. Kyles, 40 F.3d 519, 526 (2d 7
Cir. 1994); “this guy,” “another guy,” and “similar 8
language,” United States v. Williams, 936 F.2d 698, 699, 701 9
(2d Cir. 1991); and “friend,” United States v. Benitez, 920 10
F.2d 1080, 1087 (2d Cir. 1990). We explicitly left open, 11
however, “the possibility of a neutral-word substitution 12
being so conspicuously awkward” that the alteration becomes 13
obvious. Jass, 569 F.3d at 61; see also Tutino, 883 F.2d at 14
1135 (upholding redacted statement where “the jury never 15
knew that [the declarant’s] original statement named 16
names”). 17
The redactions here suggest that Taylor’s original 18
statements contained actual names. Throughout, Luana 19
Miller’s name is used--without redaction--conjoined with 20
reference to persons who are unnamed: “LUANA MILLER and two 21
other individuals”; “The person waiting with LUANA MILLER 22
and TAYLOR”; and “TAYLOR, LUANA MILLER, and the driver.” If 23
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Taylor had been trying to avoid naming his confederates, he 1
would not have identified one of them--Miller--in the very 2
phrase in which the names of the other confederates are 3
omitted.5 The jurors would notice that Miller is the one 4
person involved who was cooperating, and would infer that 5
the obvious purpose of the meticulously crafted partial 6
redaction was to corroborate Miller’s testimony against the 7
rest of the group, not to shield confederates. 8
Moreover, the wording of the statement suffers from 9
stilted circumlocutions: “The robbery was the idea of the 10
person who waited with Luana Miller and Taylor at the gas 11
station”; “Luana Miller and the other person who had waited 12
with Taylor at the gas station came up with the plan”; 13
“[A]ll four of them went to the house of the mother of one 14
of the other individuals.” And reference to “two other 15
individuals” is suspiciously closer to the speech of a 16
prosecutor than that of a perpetrator. 17
In Jass, we suggested that the following redaction 18
would be inadequate: “When I realized the guard had pulled 19
the alarm, I turned and said to another person, ‘Look, other 20
5 There was no evidence Taylor knew of Miller’s
cooperation at the time of his arrest; Miller did not sign a
formal cooperation agreement with the government until
months later.
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person, we have to get out of here.’” 569 F.3d at 62. 1
Taylor’s redacted statement betrays a similar flaw in 2
referencing Vasquez, who drove the car: “the driver was 3
running late. When the driver got there, he drove the three 4
of them”; “The driver then drove the car back to the Bronx.” 5
These sentences reflect a mechanical substitution of the 6
driver’s role for the driver’s name. 7
Once it becomes obvious that names have been pruned 8
from the text, the choice of implied identity is narrow. 9
The unnamed persons correspond by number (two) and by role 10
to the pair of co-defendants. This “obviously redacted 11
confession . . . points directly to the defendant[s], and it 12
accuses the defendant[s] in a manner similar to . . . a 13
testifying codefendant’s accusatory finger.” Gray, 523 U.S. 14
at 194. The jury could immediately infer, on the evidence 15
of the redacted confession alone, that Taylor had likely 16
named the co-defendants. See Jass, 569 F.3d at 57 (“The 17
inferences . . . involve statements that, despite redaction, 18
obviously refer directly to someone, often obviously the 19
defendant, and which involve inferences that a jury 20
ordinarily could make immediately, even were the confession 21
the very first item introduced at trial.” (quoting Gray, 523 22
U.S. at 196)). 23
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Jass does not require the most natural and colloquial 1
rendering of how a drug thief would have shielded the 2
identity of his confederates. But the awkward 3
circumlocution used to reference other participants, coupled 4
with the overt naming of Luana Miller (only), is so 5
unnatural, suggestive, and conspicuous as to offend Bruton, 6
Gray, and Jass.6
7
8
V 9
Rosario and Vasquez also argue that the admission of 10
Taylor’s post-arrest statements caused prejudicial 11
spillover.7 Because we vacate the convictions of Rosario 12
6 After briefing and oral argument in this appeal,
Taylor and Vasquez sought to raise an issue recently
addressed by the Supreme Court in Alleyne v. United States,
133 S. Ct. 2151 (June 17, 2013): whether their
“brandish[ing]” of a firearm in connection with a crime of
violence--an element of the offense increasing the mandatory
minimum sentence--was found by the jury beyond a reasonable
doubt. Although we need not reach this issue (because we
vacate their convictions on other grounds), the challenge
has no merit; the jury did make the necessary finding. See,
e.g., Verdict Form 5; Tr. 1194.
7 Vasquez raises two other arguments on appeal that may
have some bearing on the proceedings upon remand. First,
Vasquez argues that the district court erred by limiting his
cross-examination of Miller on the circumstances surrounding
Rosario’s possession of a gun. Second, Vasquez argues that
the district court delivered an unbalanced jury instruction
on the significance of the ledger found in his pocket after
his arrest. We see no abuse of discretion on either score.
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and Vasquez on other grounds, we need not reach this claim. 8
1
2
CONCLUSION 3
For the foregoing reasons, we vacate the convictions 4
and remand for a new trial. 5
8 It may matter on remand that Rosario’s challenge to
the admissibility of Miller’s testimony under Rule 404(b) is
without merit. Miller’s testimony about plans to commit a
pharmacy robbery related to the crime charged in this case,
and the district court did not abuse its discretion by
admitting that evidence as relevant background. See United
States v. Greer, 631 F.3d 608, 614 (2d Cir. 2011).
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