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, 2012 5
6
7
(Argued: February 4, 2013 Decided: December 4, 2013) 8
9
Docket Nos. 11-2201(L), 11-2426(CON), 11-2639(CON) 10
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13
UNITED STATES OF AMERICA, 14
15
Appellee, 16
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- v.- 18
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CURTIS TAYLOR, ANTONIO ROSARIO, AKA Chickee, SAMUEL VASQUEZ, 20
AKA Rock, 21
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Defendants-Appellants. 23
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Before: KEARSE, JACOBS and CARNEY, 27
Circuit Judges. 28
29
Curtis Taylor, Antonio Rosario, and Samuel Vasquez 30
appeal the judgments of the United States District Court for 31
the Southern District of New York (Marrero, J.), convicting 32
them of various charges related to a robbery of a pharmacy 33
in midtown Manhattan. Because Taylor’s post-arrest 34
statements were not voluntary, the convictions are VACATED, 35
and the case is REMANDED for a new trial. 36

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KELLEY J. SHARKEY, Brooklyn, New 1
York, for Defendant-Appellant 2
Curtis Taylor. 3
4
JILLIAN S. HARRINGTON, Monroe 5
Township, New Jersey, for 6
Defendant-Appellant Antonio 7
Rosario. 8
9
COLLEEN P. CASSIDY, Federal 10
Defenders of New York, Inc., New 11
York, New York, for Defendant- 12
Appellant Samuel Vasquez. 13
14
CHRISTOPHER D. FREY (Michael 15
Bosworth, on the brief), 16
Assistant United States 17
Attorneys, for Preet Bharara, 18
United States Attorney for the 19
Southern District of New York, 20
New York, New York, for 21
Appellee. 22
23
DENNIS JACOBS, Circuit Judge: 24
25
Curtis Taylor, Antonio Rosario, and Samuel Vasquez 26
appeal judgments of conviction entered in the United States 27
District Court for the Southern District of New York 28
(Marrero, J.) for conspiracy to commit Hobbs Act robbery and 29
brandishing a firearm during a crime of violence, among 30
other offenses related to the robbery of a pharmacy in 31
midtown Manhattan. Taylor, who claims to have attempted 32
suicide by pills as he was arrested, argues that he was 33
incapacitated when he incriminated himself post-arrest, and 34
that the court’s decision to admit those statements into 35
2

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evidence violated his rights under Miranda v. Arizona, 384 1
U.S. 436 (1966), and the Due Process Clause of the 2
Constitution. Rosario and Vasquez, who raise separate 3
issues, join Taylor’s challenge to the extent that Taylor’s 4
confession was used against them, and appeal the denial of 5
their motion to sever on the ground that Taylor’s statements 6
caused prejudicial spillover and violated the confrontation 7
right protected under Bruton v. United States, 391 U.S. 123 8
(1968). 9
This is a close case. Even assuming that Taylor’s 10
initial waiver of his Miranda rights was knowing and 11
voluntary, Taylor was largely stupefied when he made his 12
post-arrest statements, as confirmed by the testimony of the 13
law enforcement agents and the pretrial services officer who 14
interviewed him, and by the evaluations of staff 15
psychologists at the Metropolitan Correctional Center 16
(“MCC”). The agents and officer testified that Taylor fell 17
asleep repeatedly during questioning and was only 18
intermittently alert. Although their testimony also 19
suggests--and the district court found--that Taylor’s 20
incriminating statements were made in relatively lucid 21
intervals, Taylor was impaired throughout, and his 22
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interrogators took undue advantage of that impairment by 1
continuing to question him. We therefore conclude that 2
Taylor’s post-arrest statements were not voluntary. We 3
further conclude that admitting those statements into 4
evidence was not harmless. His conviction is therefore 5
vacated and remanded for a new trial. And because the 6
admission of Taylor’s statements, to the extent they could 7
be used against Rosario and Vasquez, was not harmless error 8
as to them, their convictions are also vacated and remanded 9
for a new trial. 10
I 11
On Christmas Eve 2008, Vasquez drove Taylor and Rosario 12
from the Bronx to midtown Manhattan to rob a pharmacy. With 13
them was Luana Miller, a drug addict from Mississippi with 14
an extensive criminal history. 15
En route, Miller called the pharmacy and asked them to 16
stay open for a few minutes past 5:00 PM, so that she could 17
pick up a prescription. At the pharmacy, Miller went in 18
first, posing as a customer. As she spoke with the 19
pharmacist, Rosario burst in the door brandishing a gun, 20
screaming that it was a robbery, and demanding OxyContin: a 21
powerful opioid for pain that is often resold illegally. 22
4

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The two took more than $12,000 of controlled substances, as 1
well as cash and subway cards, while Taylor stood lookout at 2
the front door and Vasquez waited in the getaway car. The 3
crew then drove back to the Bronx. Cell phone records for 4
Taylor, Rosario, and Vasquez show that they were in the 5
Bronx that afternoon, traveled to midtown Manhattan just 6
before 5:00 PM, stayed near the pharmacy until just after 7
the robbery, and then returned to the Bronx. 8
While executing a warrant at the home of Miller’s 9
boyfriend in January 2009, police arrested her on 10
outstanding warrants. Fearing extradition to Mississippi, 11
she offered to cooperate with the government’s investigation 12
of the pharmacy robbery, and led police to Taylor, Rosario, 13
and Vasquez. 14
Around 6:00 AM on April 9, 2009, over 25 NYPD and FBI 15
agents came to Taylor’s apartment to effect his arrest. 16
Taylor claims that, amid the ensuing chaos, he attempted 17
suicide by taking a bottle-full of Xanax pills. Taylor’s 18
daughter testified that her mother (who died before trial) 19
reported the overdose to an officer who dismissed her and 20
told her to “shut up.” Still, the record is less than clear 21
as to whether Taylor actually took the pills, and as to 22
whether officers were told of his overdose. 23
5

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Around 9:30 that morning, Taylor was interviewed at FBI 1
headquarters in downtown Manhattan by New York City Police 2
Department Detective Ralph Burch, a member of an FBI/New 3
York health care fraud task force. Taylor signed a form 4
waiving his Miranda rights, and went on to give a lengthy 5
statement confessing his involvement in the robbery. 6
Taylor argues that he was falling asleep and was at 7
times unconscious during the interview. Detective Burch 8
said that it seemed like Taylor’s body was “somewhat 9
shutting down” during the two- to three-hour interview. 10
Supplemental App. 51. On the other hand, Burch testified 11
that, though Taylor nodded off at times, he was “coherent” 12
and “fluid” when he was awake and speaking: 13
Mr. Taylor at times was nodding off during the 14
interview. When we asked Mr. Taylor to listen up, 15
that we were asking him questions, he would 16
respond that he knew what he was being asked and 17
he would repeat the questions back to us to show 18
that he was understanding what was being asked of 19
him and knew what was going on. 20
21
Id. at 45. Detective Burch clarified that Taylor did not 22
need to be awakened during the interview; he just had to be 23
“refocused.” Id. at 46. “He seemed like he was dozing off, 24
and we had to stress did he understand what was going on. 25
. . . [I]t was my impression that he knew what was going on 26
then.” Id. 27
6

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Taylor was later taken to a hospital for medical 1
clearance before his transfer into the custody of the 2
Marshals Service. FBI Special Agent Ian Tomas, who was also 3
involved in the interrogation, explained that Taylor was 4
taken to the hospital because “[t]here was some talk about 5
him on some medication and possibly an injury he had 6
sustained previous at a construction site.” Id. at 137. 7
Agent Tomas clarified that the hospital visit was necessary 8
because there was some question as to whether the Marshals 9
Service would take custody of someone who “might be off”: 10
“We felt that his do[z]ing off might be a reason the 11
marshals wouldn’t accept the custody of Mr. Taylor.” Id. at 12
160. Taylor spent the rest of the day at the hospital 13
sleeping, but he did not receive medical attention. He was 14
transferred to the MCC later that evening. 15
The next morning, April 10, Taylor met with MCC staff 16
psychologists. The MCC’s chief psychologist, Dr. Elissa 17
Miller, explained that they wanted to evaluate Taylor before 18
his arraignment because they knew of Taylor’s earlier 19
schizophrenia diagnosis and several prior attempts at 20
suicide. According to Dr. Miller (who reported on findings 21
by staff psychologists), Taylor “presented with a thought 22
disorder,” drooled, was vague, stared blankly, and “[h]is 23
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thoughts lacked spontaneity.” Id. at 110. Miller testified 1
that “if you asked him questions, he really couldn’t 2
elaborate on them because his thought process was impaired.” 3
Id. at 111. 4
Taylor also told one of the staff psychologists that 5
“the day he was arrested by the FBI, he took multiple Xanax 6
pills in an attempt to kill himself because he had promised 7
himself that he would never go back to jail.” Id. at 113. 8
Miller recounted that, “[a]s a result of taking all those 9
Xanax pills, he said he wasn’t waking up and he went to the 10
hospital.” Id. 11
He was then taken to the courthouse for arraignment. 12
While awaiting arrival of a pretrial services officer, 13
Taylor told Agent Tomas that “he wanted to clear up some 14
issues about the charges that he was presented with.” Id. 15
at 139. Agent Tomas took Taylor to an interview room and 16
again advised him of his Miranda rights; Taylor confessed to 17
the robbery again. 18
Around 12:30 PM that day, Taylor met with Dennis 19
Khilkevich, a pretrial services officer. Khilkevich 20
testified that when he arrived to interview Taylor, Taylor 21
“appeared sleepy and had to be awakened to be interviewed.” 22
Id. at 319. “He was sitting in a chair and he appeared as 23
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if he was asleep or he was taking a nap.” Id. Khilkevich 1
stopped the interview because Taylor “repeatedly fell asleep 2
in the chair.” Id. at 320. When the interview resumed, 3
Taylor “was initially responsive maybe for several minutes,” 4
but “[t]hen he continued to fall asleep.” Id. “He had to 5
be woken up and he would be responsive for a few minutes and 6
then he would go to sleep again.” Id. Khilkevich 7
eventually finished the interview, explaining that Taylor 8
was awake and coherent “[a]t times.” Id. at 323. 9
As to the other defendants: 10
• Rosario was also arrested on April 9, 2009, and 11
waived his Miranda rights. He claimed at first 12
that he was in the hospital the day of the 13
robbery, but then said he had actually been at his 14
girlfriend’s house in Queens. When told that a 15
surveillance video showed a suspect like him, 16
Rosario laughed and ambiguously said “yeah.” 17
Trial Transcript (“Tr.”) 571. 18
• Vasquez was arrested a day earlier, on April 8, 19
after surveillance linked him to the car believed 20
to have been used in the pharmacy robbery. When 21
arrested, he was carrying car keys, a cell phone, 22
and a piece of paper listing various milligram 23
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doses of oxycodone and OxyContin, along with the 1
number of pills of each dose. Vasquez gave no 2
statement to police. 3
The indictment charged the three with (1) conspiracy to 4
commit Hobbs Act robbery, in violation of 18 U.S.C. § 5
1951(b)(1); (2) Hobbs Act robbery; and (3) use, possession, 6
and brandishing of a firearm during a crime of violence, in 7
violation of 18 U.S.C. § 924(c)(1)(A)(ii). Taylor was 8
additionally charged with (4) fraudulent acquisition of 9
controlled substances by passing forged prescriptions, in 10
violation of 21 U.S.C. § 843(a)(3). 11
Taylor moved to suppress his two post-arrest statements 12
on the ground that his Miranda waivers and his post-arrest 13
statements were neither knowing nor voluntary. The 14
testimony summarized above was given at the suppression 15
hearing (starting April 23, 2010, continuing May 4, 2010, 16
and concluding May 6, 2010). The district court denied 17
suppression of Taylor’s post-arrest statements, finding that 18
the government sustained its burden of proving that Taylor’s 19
Miranda waivers were “informed and voluntary.” Supplemental 20
App. 385. The court found that the testimony of the law 21
enforcement agents was consistent, corroborated, and 22
truthful. Id. at 386-87. 23
10

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The court rejected the argument that Taylor’s 1
incapacitation rendered his post-arrest statements 2
involuntary: 3
[T]he defense does not allege that the government 4
failed to read Mr. Taylor [his] rights before 5
questioning began or any other coercion. Even 6
were the Court to assume that Mr. Taylor ingested 7
a large quantity of Xanax shortly before his 8
arrest, the Court credits the testimony from the 9
government’s witnesses that Mr. Taylor was 10
sufficiently lucid during the questioning that his 11
waiver of Miranda rights was knowing and 12
voluntary. 13
14
The fact that there is evidence that Mr. Taylor 15
nodded off from time to time during the 16
questioning does not persuade the Court that 17
during those portions of the testimony when he was 18
awake and lucid he could not have voluntarily and 19
knowingly waived his Miranda rights. 20
Id. at 387-88. The district court went on to explain that 21
it did “not equate nodding off intermittently with total 22
psychotic episodes of hallucination and other extreme 23
circumstances that might throw greater doubt on the 24
defendant’s ability to voluntarily and knowingly waive his 25
rights.” Id. at 388. 26
Taylor’s statements, which implicated Rosario and 27
Vasquez, were redacted at trial to remove their names. The 28
jury was instructed that Taylor’s statements should be 29
considered only as to Taylor. 30
11

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In December 2010, the jury convicted on all counts. 1
Taylor was sentenced principally to 200 months’ 2
imprisonment, Rosario was sentenced principally to 180 3
months, and Vasquez was sentenced principally to 170 months. 4
They all filed timely notices of appeal. 5
6
II 7
The main issue on appeal is whether Taylor’s Miranda 8
waivers on April 9 and April 10, and his post-arrest 9
statements on each of those dates, were knowing and 10
voluntary. “We review a district court’s determination 11
regarding the constitutionality of a Miranda waiver de novo 12
and a district court’s underlying factual findings for clear 13
error.” United States v. Carter, 489 F.3d 528, 534 (2d Cir. 14
2007). 15
A statement made by the accused “during a custodial 16
interrogation is inadmissible at trial unless the 17
prosecution can establish that the accused in fact knowingly 18
and voluntarily waived [Miranda] rights when making the 19
statement.” Berghuis v. Thompkins, 560 U.S. 370, 382 (2010) 20
(internal quotation marks omitted). “The existence of a 21
knowing and voluntary waiver does not, however, guarantee 22
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that all subsequent statements were voluntarily made.” In 1
re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 2
177, 211-12 (2d Cir. 2008); see also Dickerson v. United 3
States, 530 U.S. 428, 444 (2000) (“The requirement that 4
Miranda warnings be given does not, of course, dispense with 5
the voluntariness inquiry.”). 6
We look at the totality of circumstances surrounding a 7
Miranda waiver and any subsequent statements to determine 8
knowledge and voluntariness. See Oregon v. Elstad, 470 U.S. 9
298, 309 (1985). In that context, “knowing” means with full 10
awareness of the nature of the right being abandoned and the 11
consequences of abandoning it, and “voluntary” means by 12
deliberate choice free from intimidation, coercion, or 13
deception. United States v. Plugh, 648 F.3d 118, 127 (2d 14
Cir. 2011), cert. denied, 132 S. Ct. 1610 (2012). The 15
government bears the burden of proof. Colorado v. Connelly, 16
479 U.S. 157, 168-69 (1986). 17
18
The analysis applicable to April 9 differs somewhat 19
from the analysis applicable to April 10. 20
April 9. In general, a suspect who reads, 21
acknowledges, and signs an “advice of rights” form before 22
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making a statement has knowingly and voluntarily waived 1
Miranda rights. See Plugh, 648 F.3d at 127-28. Before 2
making his statement on April 9, Taylor was read Miranda 3
rights using an “advice of rights” form. He was read every 4
right, voiced his understanding, and signed the form. At 5
the time, according to Detective Burch, Taylor had a “fluid” 6
demeanor, “knew what was going on,” and “understood what was 7
happening.” Supplemental App. 15. This evidence, credited 8
by the district court, supports the conclusion that Taylor 9
knowingly and voluntarily waived his Miranda rights before 10
speaking with law enforcement on April 9. 11
But even accepting that Taylor’s April 9 Miranda waiver 12
was knowing and voluntary, we must nonetheless determine 13
whether the inculpatory statements themselves were 14
voluntary. Dickerson, 530 U.S. at 444. “A confession is 15
not voluntary when obtained under circumstances that 16
overbear the defendant’s will at the time it is given.” 17
United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991). 18
The voluntariness inquiry should examine “the totality of 19
all the surrounding circumstances, including the accused’s 20
characteristics, the conditions of interrogation, and the 21
conduct of law enforcement officials.” Id. An individual’s 22
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mental state should be considered in the voluntariness 1
inquiry to the extent it allowed law enforcement to coerce 2
the individual. Connelly, 479 U.S. at 164-65; see also 3
United States v. Salameh, 152 F.3d 88, 117 (2d Cir. 1998) 4
(per curiam). 5
The record indicates that Taylor’s statement of April 9 6
was made when he was unable to summon the will to make a 7
knowing and voluntary decision; his will was overborne. 8
It is difficult to determine whether a confession is 9
voluntary; case law “yield[s] no talismanic definition” for 10
the term. Schneckloth v. Bustamonte, 412 U.S. 218, 224 11
(1973). It is clear, however, that when “a person is 12
unconscious or drugged or otherwise lacks capacity for 13
conscious choice,” a confession cannot be voluntary. Id. 14
(internal quotation marks omitted); see also United States 15
ex rel. Burns v. LaVallee, 436 F.2d 1352, 1355-56 (2d Cir. 16
1970) (holding a written confession to be involuntary when 17
given “after over eighteen hours of uninterrupted custodial 18
interrogation, after he had been without sleep, and almost 19
without food, for thirty hours”). 20
Taylor claims he was mentally incapacitated during the 21
April 9 interview because of the quantity of Xanax pills he 22
15

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ingested immediately before his arrest. That claim finds 1
support in the record. Detective Burch testified that 2
Taylor’s body “was somewhat shutting down,” and that “at 3
that time that he was answering questions . . . his body was 4
giving up on him.” Supplemental App. 51. The district 5
court credited this testimony. Granted, Burch also 6
testified that, when Taylor was speaking, he was “coherent” 7
and understood what was going on when he was not nodding 8
off. Id. But it nonetheless appears that Taylor fell 9
asleep at least two or three times during the interview, and 10
the officers repeatedly had to awaken him, or (to use the 11
nicer term) “refocus” him--at one point coaxing him, “Mr. 12
Taylor, you have to answer our questions and focus with us.” 13
Id. at 47. Agent Tomas corroborated that Taylor was “a 14
little bit out of it” and dozing off. Id. at 158-61. 15
In Mincey v. Arizona, 437 U.S. 385 (1978), statements 16
by a defendant who was hospitalized were ruled involuntary. 17
The Court observed that the defendant was in intensive care 18
for a serious wound and was “evidently confused and unable 19
to think clearly about either the events of that afternoon 20
or the circumstances of his interrogation.” Id. at 398. 21
The statements were “the result of virtually continuous 22
16

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questioning of a seriously and painfully wounded man on the 1
edge of consciousness.” Id. at 401; see also id. (“But 2
despite [the accused’s] entreaties to be let alone, [the 3
police officer] ceased the interrogation only during 4
intervals when [the accused] lost consciousness or received 5
medical treatment, and after each such interruption returned 6
relentlessly to his task.”). 7
On the other hand, in Salameh, we rejected a claim that 8
a statement was involuntary, even though the accused claimed 9
that prior to being taken into U.S. custody, he had been 10
incarcerated in Egypt and tortured for ten days. 152 F.3d 11
at 117. Despite the accused’s weakened mental state, his 12
statements were voluntary because he did “not contend that 13
federal agents either mentally or physically coerced his 14
remarks during that interrogation.” Id.; see also Plugh, 15
648 F.3d at 128 (statements voluntary because defendant “was 16
never threatened physically or psychologically abused in any 17
manner, or made any type of promises such that his will was 18
overborne”) (internal quotation marks omitted). 19
One difference between Mincey and Salameh is the 20
presence in Mincey of police overreaching, see Connelly, 479 21
U.S. at 157 (stressing the "crucial element of police 22
17

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overreaching" in assessing voluntariness), and that is no 1
doubt a difficult issue here. Continued questioning of a 2
sleep-deprived suspect can be coercive, depending on the 3
circumstances, see, e.g., Mincey, 437 U.S. at 401; LaVallee, 4
436 F.2d at 1355-56; but the decisive issue is whether the 5
will was “overborne” by the police, so that the defendant is 6
not using such faculties as he has. The conditions in which 7
Taylor was questioned do not appear to have been abusive; 1
8
but there is little difference in effect between sleep 9
deprivation as a technique and the relentless questioning of 10
a person who is obviously unable to focus or stay awake for 11
some other reason. 12
The district court credited testimony that Taylor was 13
coherent at times. One such interval is when Taylor signed 14
the “advice of rights” form on April 9, a finding that we do 15
not disturb. But as that interview progressed, it became 16
clear to the officers (as their testimony confirms) that 17
Taylor was in and out of consciousness while giving his 18
statement, and in a trance or a stupor most of the time when 19
not actually asleep. Thus, the officers’ persistent 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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questioning took undue advantage of Taylor’s diminished 1
mental state, and ultimately overbore his will. 2
Accordingly, we conclude that Taylor’s statement on April 9 3
was not voluntary and should have been suppressed. 4
5
April 10. On the morning of April 10, Taylor himself 6
initiated contact with law enforcement by notifying Agent 7
Tomas that “he wanted to clear up some issues about the 8
charges that he was presented with.” Supplemental App. 139. 9
He was then orally re-advised of his rights, orally waived 10
them, and gave an additional statement, altering some 11
aspects of his April 9 account. Although Taylor continued 12
to slip in and out of consciousness that day, Agent Tomas 13
testified that, when speaking to the agents mid-morning, 14
Taylor was “much more alert” than he had been the day 15
before.2 Id. at 139-42. But because Taylor’s first 16
confession on April 9 was the product of coercion, we must 17
determine whether his second waiver and confession, fewer 18
than twenty-four hours later, were rendered involuntary 19
based, at least in part, on the "taint clinging to the first 20
confession." Anderson, 929 F.2d at 102. 21
2 As discussed further below, the question is not free
of doubt.
19

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“[T]he use of coercive and improper tactics in 1
obtaining an initial confession may warrant a presumption of 2
compulsion as to a second one, even if the latter was 3
obtained after properly administered Miranda warnings." 4
Tankleff v. Senkowski, 135 F.3d 235, 245 (2d Cir. 1998) 5
(internal quotation marks omitted). That is so because, 6
“after an accused has once let the cat out of the bag by 7
confessing, no matter what the inducement, he is never 8
thereafter free of the psychological and practical 9
disadvantages of having confessed.” United States v. Bayer, 10
331 U.S. 532, 540 (1947). 11
“In deciding whether a second confession has been 12
tainted by the prior coerced statement, ‘the time that 13
passes between confessions, the change in place of 14
interrogations, and the change in identity of interrogators 15
all bear on whether that coercion has carried over into the 16
second confession.’” Anderson, 929 F.2d at 102 (quoting 17
Elstad, 470 U.S. at 310). Less than a day passed between 18
Taylor’s first and second confessions, and in that interval, 19
Taylor was hospitalized or unconscious most of the time. 20
Although the venue of the interrogations differed, Agent 21
Tomas was present at both--and it was to Agent Tomas that 22
20

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Taylor addressed his request to “clear up some issues.” The 1
taint of the prior involuntary confession carried over to 2
Taylor’s second waiver and statement, burdening both with a 3
“presumption of compulsion.” Tankleff, 135 F.3d at 245. 4
That presumption is reinforced by uncontradicted 5
testimony regarding Taylor’s lingering mental incapacity on 6
April 10. Taylor continued to doze off that morning and was 7
alert only “at times.” Supplemental App. 162. Just before 8
the April 10 interview, FBI Special Agent Steven Jensen saw 9
Taylor “slouched in his chair, and he appeared to be 10
sleeping.” Id. at 247. When asked for how long Taylor was 11
sleeping, Agent Jensen explained that it was “in excess of 12
minutes.” Id. 13
Although the record does not suggest that Taylor fell 14
asleep during the April 10 interview, there is evidence 15
that, throughout the day on April 10, Taylor remained in a 16
fog. Dr. Miller reported that Taylor was mentally impaired 17
on the morning of April 10 and could not adequately respond 18
to questions: 19
When he was seen, he presented with a thought 20
disorder. He was noted to be picking at his 21
nails. He was drooling. He was vague in his 22
responses to questioning. He presented with what 23
we call a flat affect . . . just kind of flat and 24
blank-face stare. 25
21

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1
He could not elaborate on questions asked. His 2
thoughts lacked spontaneity. His speech was 3
vague. When we would ask him certain questions 4
about whether he was hearing voices, he couldn’t 5
really elaborate on his responses. 6
7
Id. at 110. Dr. Miller also reported the observation made 8
by psychologists in her division: “[I]f you asked him 9
questions, he really couldn’t elaborate on them because his 10
thought process was impaired.” Id. at 111. 11
Dennis Khilkevich, a pretrial services officer who 12
interviewed Taylor at around 12:30 PM on April 10, found 13
Taylor drowsy and in need of rousing. See id. at 319 (“He 14
was sitting in a chair and he appeared as if he was asleep 15
or taking a nap.”). When Khilkevich tired of waking him up, 16
he suspended the interview; and when he resumed, Taylor 17
continued to fall asleep between short intervals of 18
consciousness, so Khilkevich ended the questioning. 19
The district court did not discredit the testimony of 20
Dr. Miller or Khilkevich. 21
Evidence of Taylor’s continued incapacity on April 10, 22
coupled with the taint of his prior confession, renders his 23
second waiver and statement involuntary. Considering the 24
totality of circumstances, we conclude that Taylor’s 25
22

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inculpatory statement on April 10 should have been 1
suppressed.3
2
3
III 4
Next we consider whether the error in admitting those 5
statements was harmless. Arizona v. Fulminante, 499 U.S. 6
279, 310-11 (1991) (Rehnquist, C.J., writing for a majority 7
as to harmless error analysis); see also Zappulla v. New 8
York, 391 F.3d 462, 466 (2d Cir. 2004). “When reviewing the 9
erroneous admission of an involuntary confession, the 10
appellate court, as it does with the admission of other 11
forms of improperly admitted evidence, simply reviews the 12
remainder of the evidence against the defendant to determine 13
whether the admission of the confession was harmless beyond 14
a reasonable doubt.” Fulminante, 499 U.S. at 310 (emphasis 15
added). 16
“Is it clear beyond a reasonable doubt that a rational 17
jury would have found the defendant guilty absent the 18
error?” Neder v. United States, 527 U.S. 1, 18 (1999). 19
3 When it appears that a defendant is malingering, the
voluntariness 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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“[T]he court conducting a harmless-error inquiry must 1
appreciate the indelible impact a full confession may have 2
on the trier of fact,” Fulminante, 499 U.S. at 313 (Kennedy, 3
J., concurring); indeed, “it may be devastating to a 4
defendant,” Id. at 312 (Rehnquist, C.J., writing for a 5
majority as to harmless error analysis). We consider the 6
following (nonexclusive) factors in determining whether the 7
erroneous admission of a confession was harmless: “(1) the 8
overall strength of the prosecution’s case; (2) the 9
prosecutor’s conduct with respect to the improperly admitted 10
evidence; (3) the importance of the wrongly admitted 11
testimony; and (4) whether such evidence was cumulative of 12
other properly admitted evidence.” Zappulla, 391 F.3d at 13
468. 14
The admission of Taylor’s involuntary confessions was 15
not harmless error beyond a reasonable doubt. (1) Taylor’s 16
confessions were a critical part of the prosecution’s case. 17
The case against Taylor otherwise rested on the testimony of 18
Luana Miller and cell-site records. Miller’s testimony was 19
subject to attack, as Taylor claims, because of her criminal 20
past and because she had much to gain from cooperating with 21
the government. Further, while the cell-site records 22
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corroborate Miller’s account of their movements, no other 1
witness or physical evidence links Taylor to the crime. (2) 2
The prosecution emphasized Taylor’s confessions throughout 3
trial, including at opening and closing, and had both 4
statements read to the jury in full. (3) & (4) Taylor’s 5
confessions were important to the case, corroborating 6
Miller’s critical testimony. Further, a confession is 7
recognized to have greater impact than the same testimony 8
given by another witness. See, e.g., Fulminante, 499 U.S. 9
at 312-13. Given the weight that a jury may accord a 10
confession, as well as the other relevant factors, the 11
admission of Taylor’s post-arrest statements was not 12
harmless. 13
In sum, Taylor confessed while in a stupor, his will 14
was overborne, his statements were not voluntarily made, and 15
they should have been suppressed. Considering the other 16
evidence against Taylor and the important role that his 17
confessions played at trial, this was not harmless error. 18
We therefore vacate Taylor’s conviction and remand for a new 19
trial.4
20
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
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IV 1
To the extent that Taylor’s confessions were used 2
against them, Rosario and Vasquez join Taylor’s challenge 3
based on the voluntariness of Taylor’s confessions. 5 The 4
question is whether the admission of those statements was 5
harmless as to Rosario and Vasquez. We conclude that it was 6
not. 7
It matters that the district court gave limiting 8
instructions. The court instructed that “[s]ome evidence is 9
admitted for a limited purpose only,” and pointed 10
specifically to “certain statements that law enforcement 11
agents testified were made to them by Mr. Taylor and Mr. 12
Rosario and that were admitted only as to the particular 13
(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.
5 Vasquez explicitly joins Taylor’s arguments. While
Rosario failed to explicitly join, we exercise our
discretion and construe Rosario’s appeal to include those
arguments made by Taylor that may be applicable to Rosario.
See Fed. R. App. P. 2 (“On its own or a party’s motion, a
court of appeals may--to expedite its decision or for other
good cause--suspend any provision of these rules in a
particular case . . . .”); United States v. Babwah, 972 F.2d
30, 35 (2d Cir. 1992) (“Fed. R. App. P. 2 gives a Court of
Appeals the discretion to overlook [a failure to raise an
argument on appeal] if manifest injustice otherwise would
result.”).
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defendant who made the statement.” Vasquez App. 220. The 1
court later reinforced that instruction: 2
As I instructed you previously, evidence of 3
statements that law enforcement agents testified 4
were made by a particular defendant was admitted 5
with respect to that particular defendant alone, 6
and if you find that the statements were made, may 7
not be considered or discussed by you in any way 8
with respect to any other defendant when you begin 9
your deliberations. 10
11
Id. at 227; see also id. at 177 (“The evidence of alleged 12
statements made by Curtis Taylor to law enforcement is 13
admitted with respect to Curtis Taylor alone and may not be 14
considered or discussed by you in any way with respect to 15
either of the other defendants . . . .”). 16
We normally assume that jurors follow limiting 17
instructions. See, e.g., United States v. Jass, 569 F.3d 18
47, 55 (2d Cir. 2009). But a confession by one co-defendant 19
in a joint trial poses substantial risk for the other co- 20
defendants notwithstanding such an instruction. See Bruton 21
v. United States, 391 U.S. 123, 135-36 (1968). In Bruton, 22
the Supreme Court recognized the risks posed by “powerfully 23
incriminating extrajudicial statements of a co-defendant, 24
who stands accused side-by-side with the defendant,” which 25
are then “deliberately spread before the jury in a joint 26
trial.” Id. Such limiting instructions call for “a mental 27
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gymnastic which is beyond, not only [the jury’s] powers, but 1
anybody’s else.” Nash v. United States, 54 F.2d 1006, 1007 2
(2d Cir. 1932) (L. Hand, J.). The risk is heightened when 3
the circumstances deprive a defendant of the constitutional 4
right to confront the witnesses against him, which may 5
result in Bruton error. See Gray v. Maryland, 523 U.S. 185, 6
196 (1998). 7
With this risk in mind, we turn to examine whether the 8
erroneous admission of Taylor’s statements was harmless as 9
to Rosario and Vasquez--that is, whether it is clear beyond 10
a reasonable doubt that a rational jury would have found 11
Rosario and Vasquez guilty absent the error. Again we 12
consider, among other things: (1) the strength of the 13
prosecution’s case, (2) the prosecutor’s conduct with 14
respect to the statements, (3) the importance of the 15
statements, and (4) whether the statements were cumulative 16
of other evidence. Zappulla, 391 F.3d at 468. 17
As to Rosario, the prosecution’s case was relatively 18
strong, but relied chiefly on the testimony of Miller, which 19
was subject to credibility attack, and on the cell-site 20
records. The government also relied on surveillance video 21
footage from inside the pharmacy and the testimony of the 22
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pharmacist working during the robbery. However, the record 1
suggests that the face on the videotape was partially 2
covered; the pharmacist was unable to identify Rosario as 3
the assailant; and Rosario’s post-arrest statement mostly 4
denied involvement in the robbery. 6 Taylor’s confession was 5
critical to the prosecution because it corroborated Miller’s 6
account and definitively placed Rosario at the scene of the 7
crime, in possession of a firearm. We cannot conclude 8
beyond a reasonable doubt that a rational jury would have 9
convicted Rosario absent Taylor’s statements. 7
10
As to Vasquez, the government’s case was somewhat 11
weaker, again relied heavily on the cell-site records, and 12
drew its strength from Taylor’s statements. The 13
government’s other evidence was a piece of paper found on 14
Vasquez’s person when he was arrested, with oxycodone and 15
6 After at first claiming he was elsewhere, Rosario
laughed and said “yeah” when law enforcement told him that
surveillance video showed a suspect that looked like him in
the pharmacy.
7 Although Rosario’s conviction is vacated on this
ground, it may matter on remand that his 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 at issue in this case,
and the district court did not abuse its discretion by
admitting the evidence as relevant background. See United
States v. Greer, 631 F.3d 608, 614 (2d Cir. 2011).
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OxyContin listed and annotated with numbers; and the 1
testimony of an officer who saw Taylor, Rosario, and Vasquez 2
together in Vasquez’s car, which was allegedly used during 3
the robbery. The piece of paper is likely a drug ledger, 4
but no evidence tied it to the pharmacy robbery, and the 5
only evidence putting Vasquez’s car at the scene of the 6
crime was testimony by Miller and the statements of Taylor. 7
For the same reasons reviewed above, we cannot conclude 8
beyond a reasonable doubt that a rational jury would have 9
convicted Vasquez had Taylor’s statements been properly 10
excluded.8
11
We therefore hold that the admission of Taylor’s 12
involuntary confessions was not harmless error as to Rosario 13
and Vasquez, and vacate their convictions and remand for a 14
new trial.9
15
8 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.
9 The Supreme Court recently decided that any fact
that increases the mandatory minimum sentence--including
whether a defendant “brandished” a firearm in connection
with a crime of violence--is an element of the offense that
must be found by a jury beyond a reasonable doubt. Alleyne
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V 1
Rosario and Vasquez also argue that the admission of 2
Taylor’s post-arrest statements violated their rights under 3
the Confrontation Clause because they had no opportunity to 4
cross-examine Taylor and because his statements adverted to 5
them. See Bruton v. United States, 391 U.S. 123 (1968). 6
Because we have vacated the convictions of Rosario and 7
Vasquez on separate grounds, we need not reach their claim 8
of Bruton error. 9
10
CONCLUSION 11
For the foregoing reasons, we vacate the convictions 12
and remand for a new trial. 13
v. United States, 133 S. Ct. 2151 (June 17, 2013). After
briefing and oral argument were complete, Taylor and Vasquez
sought to raise this issue on appeal, but because we are
vacating their convictions on other grounds, we need not
reach it. In any event, the jury did find brandishing
beyond a reasonable doubt. See, e.g., Verdict Form 5; Tr.
1194.
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