United States v. 2006-01-30 | 04-50182 | USA VWILLIMAS | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 04-50182
Plaintiff-Appellee, D.C. No.
v. CR-03-00985-  MMM-01TASHIRI WAYNE WILLIAMS,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted
May 6, 2005—Pasadena, California
Filed January 30, 2006
Before: James R. Browning, Raymond C. Fisher and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Fisher
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COUNSEL
Carlton F. Gunn, Deputy Federal Public Defender, Los Ange-
les, California, for the defendant-appellant.
Beong-Soo Kim, Assistant United States Attorney, Criminal
Complaints Section, Los Angeles, California, for the plaintiff-
appellee.
OPINION
FISHER, Circuit Judge:
Tashiri Williams (“Williams”) appeals a district court order
denying his motion to suppress a written confession that he
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gave to United States Diplomatic Security Service (“DSS”)
agents during interrogation. According to a DSS investigation
report, the agents interrogated Williams in two steps — first,
they asked him questions until he confessed; then, immedi-
ately after his oral confession, they read him his Miranda
rights and asked him to write down what he had previously
told them. The district court suppressed Williams’ oral state-
ments because they were elicited in violation of Miranda, but
admitted his postwarning written confession on the ground
that the statement “was voluntarily made.” We reverse.
Under the Supreme Court’s recent decision in Missouri v.
Seibert, 542 U.S. 600 (2004), rendered after the district
court’s ruling, a trial court must suppress postwarning confes-
sions obtained during a deliberate two-step interrogation
where the midstream Miranda warning was objectively inef-
fective. Because the district court did not have the benefit of
Seibert, it did not determine whether the agents deliberately
withheld the Miranda warning, and if so, whether the warning
finally given effectively apprised Williams that he had a “gen-
uine choice whether to follow up on [his] earlier admission.”
Id. at 616 (Souter, J., plurality opinion). We therefore remand
to the district court for further findings consistent with this
opinion.
I.
On July 11, 2003, Williams filed a passport application at
the United States Passport Office in Los Angeles, California.
The application he submitted contained his own identification
information, but the photographs he attached were those of his
acquaintance, Hussein Iddrissu (“Iddrissu”). A fraud manager
noticed the discrepancy and notified DSS agents. Four days
later, when Iddrissu arrived at the Passport Office to pick up
the completed passport, DSS Special Agents O’Neil and
Dobbs stopped him for questioning. During questioning, they
requested that Iddrissu call Williams and ask him to come to
the office.
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Williams and Iddrissu’s brother, Hassan, arrived at the gov-
ernment building shortly after it closed, around 6 p.m.
According to the investigation report (prepared by Agent
Dobbs), the agents met Williams and Hassan at the building
entrance, took them into the DSS offices and separated the
two men for questioning. The agents escorted Williams into
a reception area and began interrogating him.1 They started by
showing Williams his passport application. Williams immedi-
ately responded, “[t]hat’s not my picture.” Agent O’Neil then
told Williams that he had a choice: “We can do this the easy
way or the hard way. . . . I think we have enough to arrest you
now and let the courts figure it out, or you can talk to us and
tell us what’s going on and, you know, it might be better for
you in the long run.” Williams complied and told the agents
that he and Iddrissu had planned a joint trip to London and
taken passport pictures together for the trip. The pictures,
Williams explained, must have been inadvertently switched.
Agent O’Neil called Williams’ account a “bullshit story”
and described to him how criminal charges could affect his
professional ambitions. In response, Williams changed his
story and admitted to submitting Iddrissu’s photograph on the
passport application.
After this oral confession, Agent O’Neil read Williams his
Miranda rights, gave him a waiver of rights form and asked
him to write a statement.2 When Williams asked what he
should write, both agents declined to specify, though Agent
Dobbs testified that in response to such questions agents gen-
erally tell suspects that they should write “what you’ve told
1The district court found that Williams was in custody at this point.
2Before the district court, the agents testified that they read Williams his
rights before asking any questions. This testimony contradicted the inves-
tigation report filed by Agent Dobbs immediately after the incident. The
district court held an evidentiary hearing on the matter and found that the
agents did not issue Miranda warnings until after Williams made his
inculpatory comments, immediately before he wrote his statement. The
government has not appealed this factual finding.
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us.” Williams wrote: “There is nothing I can say, but I made
a mistake. I just tried to get a passport without my picture for
someone else. I just don’t want this to be on my record.”
A federal grand jury indicted Williams on three counts: (1)
conspiracy to make a false statement in a passport application
in violation of 18 U.S.C. § 371; (2) making a false statement
in a passport application in violation of 18 U.S.C. § 1542; and
(3) making a false statement within the jurisdiction of the
United States in violation of 18 U.S.C. § 1001. Before trial,
Williams moved to suppress both his oral and his written
statements. The district court granted suppression of the oral
confession because “the government [had] not met its burden
of showing by a preponderance of the evidence that Williams
waived his Miranda rights before he made [the] incriminating
statements” to the agents. However, the court denied Wil-
liams’ motion to suppress the written confession because nei-
ther his oral statements nor written confession were coerced
and his written confession “was voluntarily made.” After trial,
a jury found Williams guilty of all three felony charges and
the district court sentenced him to four years of probation,
including six months of home detention.
II.
The adequacy of a Miranda warning and the voluntariness
of a suspect’s statements are questions of law that are
reviewed de novo. United States v. San Juan-Cruz, 314 F.3d
384, 387 (9th Cir. 2002); United States v. Bautista, 362 F.3d
584, 589 (9th Cir. 2004). “The admission of statements made
in violation of a person’s Miranda rights is reviewed for
harmless error.” United States v. Butler, 249 F.3d 1094, 1098
(9th Cir. 2001).
III.
[1] “In order to combat [the pressures inherent in custodial
interrogation] and to permit a full opportunity to exercise the
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privilege against self-incrimination, the accused must be ade-
quately and effectively apprised of his rights.” Miranda v.
Arizona, 384 U.S. 436, 467 (1966). A Miranda warning func-
tions both to reduce the risk that an involuntary or coerced
statement will be admitted at trial and to implement the Fifth
Amendment’s self-incrimination clause. Id. at 457-58; see
also Chavez v. Martinez, 538 U.S. 760, 790 (2003) (Kennedy,
J., concurring in part and dissenting in part). Thus, if a suspect
in custody does not receive an adequate warning effectively
apprising him of his rights before he incriminates himself, his
statements may not be admitted as evidence against him.
Miranda, 384 U.S. at 479. Williams contends that the midin-
terrogation Miranda warning he received did not adequately
apprise him of his rights and therefore his written confession
should not have been admitted.
A.
The Supreme Court has twice addressed the admissibility
of a confession obtained after a Miranda warning but pre-
ceeded by the suspect’s earlier, unwarned incriminating state-
ments. In Oregon v. Elstad, 470 U.S. 298, 301 (1985), Elstad,
a burglary suspect, made incriminating comments to a police
officer at his home without first receiving a Miranda warning.
Officers then took him to the county sheriff’s office, placed
him in an interrogation room, read him his Miranda rights and
questioned him at length. See id. During this interrogation,
and approximately 30 minutes after making his original incul-
patory comments, Elstad expanded significantly on his earlier
statements and made a full confession. Id. at 301-02.
[2] Before the Supreme Court, Elstad argued that his con-
fession should be suppressed as “fruit of the poisonous tree”
because, although made after a proper Miranda warning, his
confession was tainted by the earlier unwarned comments. Id.
at 303. In a related argument, Elstad asserted that the coercive
impact of his unwarned statement — inherent in a defendant’s
having “let the cat out of the bag” — required suppression
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because the statement compromised the voluntariness of his
postwarning statement. Id. at 302-04. Focusing on the volun-
tariness of Elstad’s unwarned comments, the Court rejected
both arguments. Id. at 306-14. The Court reasoned that “ab-
sent deliberately coercive or improper tactics in obtaining the
initial statement, the mere fact that a suspect has made an
unwarned admission does not warrant a presumption of com-
pulsion” with respect to the postwarning confession. Id. at
314. Rather, “[o]nce warned, the suspect is free to exercise his
own volition in deciding whether or not to make a statement
to the authorities.” Id. at 308. The Court thus held that a “sus-
pect who has once responded to unwarned yet uncoercive
questioning is not thereby disabled from waiving his rights
and confessing after he has been given the requisite Miranda
warnings.” Id at 318.3
As Justice O’Connor explained in her Seibert dissent,
3The Court’s belief that Elstad’s prewarning statements were voluntary
played a decisive role in its analysis. The Court reasoned that in cases
where a postwarning confession was preceeded by a “clearly voluntary”
but unwarned statement, a “careful and thorough” midstream warning “or-
dinarily should suffice to remove the conditions that precluded admission
of the earlier statement” because it “conveys the relevant information”
regarding a suspect’s Fifth Amendment rights. Elstad, 470 U.S. at 310-11,
314 (emphasis added). In such circumstances, “the suspect’s choice
whether to exercise his privilege to remain silent should ordinarily be
viewed as an act of free will.” Id. at 311 (emphasis added) (internal quota-
tion marks and internal citations omitted). However, Elstad also appeared
to limit its holding to the circumstances of the case:
[i]t is an unwarranted extension of Miranda to hold that a simple
failure to administer the warnings, unaccompanied by any actual
coercion or other circumstances calculated to undermine the sus-
pect’s ability to exercise his free will, so taints the investigatory
process that a subsequent voluntary and informed waiver is inef-
fective for some indeterminate period. Though Miranda requires
that the unwarned admission must be suppressed, the admissibil-
ity of any subsequent statement should turn in these circum-
stances solely on whether it is knowingly and voluntarily made.”
Id. at 309 (emphasis added).
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Elstad also held that “if [the prewarning] statement is shown
to have been involuntary, the court must examine whether the
taint dissipated through the passing of time or a change in cir-
cumstances.” Seibert, 542 U.S. at 628 (emphasis added).4
Similarly, Elstad requires the court to suppress a postwarning
statement if the suspect demonstrates that his statement was
involuntary despite the Miranda warning. Elstad, 470 U.S. at
318 (explaining that “the finder of fact must examine the sur-
rounding circumstances and the entire course of police con-
duct with respect to the suspect in evaluating the
voluntariness of his statements”). Thus, under Elstad, if the
prewarning statement was voluntary (or if involuntary, the
change in time and circumstances dissipated the taint), then
the postwarning confession is admissible unless it was invol-
untarily made despite the Miranda warning. See United States
v. Wauneka, 770 F.2d 1434, 1440 (9th Cir. 1985); accord
United States v. Stewart, 388 F.3d 1079, 1090 (7th Cir. 2004).5
4As stated in Elstad, “[w]hen a prior statement is actually coerced, the
time that passes between confessions, the change in place of interroga-
tions, and the change in identity of the interrogators all bear on whether
that coercion has carried over into the second confession.” 470 U.S. at
310.
5Voluntariness is a totality of circumstances inquiry that assesses “both
the characteristics of the accused and the details of the interrogation.”
Schneckloth v. Bustamonte, 412 U.S. 218, 226-27 (1973) (noting that
although “the state of the accused’s mind, and the failure of the police to
advise the accused of his rights, [are] certainly factors to be evaluated in
assessing . . . ‘voluntariness,’ . . . they [are] not in and of themselves deter-
minative”). The court should therefore “determine[ ] the factual circum-
stances surrounding the confession, assess[ ] the psychological impact on
the accused, and evaluate[ ] the legal significance of how the accused
reacted.” Id. at 226. In the past, for example, the Court considered “the
youth of the accused, his lack of education, or his low intelligence, the
lack of any advice to the accused of his constitutional rights, the length of
detention, the repeated and prolonged nature of the questioning, and the
use of physical punishment such as the deprivation of food or sleep.” Id.
(internal citations omitted). We have similarly stated that voluntariness
depends on such factors as “the surrounding circumstances, the combined
effect of the entire course of the officer’s conduct upon the defendant,
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[3] We followed Elstad in United States v. Orso, 266 F.3d
1030 (9th Cir. 2001) (en banc). Orso made inculpatory state-
ments in a patrol car en route to a police station and then,
immediately upon arriving at the station, received a Miranda
warning and confessed. 266 F.3d at 1032-33. Pointing to
Elstad’s disjunctive clause, “[a]bsent deliberately coercive or
improper tactics,” Orso argued that her postwarning state-
ments should be suppressed because the officers engaged in
improper tactics (questioning her during the car ride without
giving a Miranda warning), which “tainted” her warned con-
fession. Id. at 1034-36 (quoting Elstad, 470 U.S. at 314). We
declined to distinguish Elstad. Reasoning that “the overriding
theme running through [Elstad] is the voluntariness of the
unwarned statement,” we held that where a suspect’s initial,
unwarned statements are voluntary, her subsequent, warned
statements are admissible regardless of alleged improper
police tactics.6 Id. at 1036, 1038. “[T]he most persuasive read-
ing of the ‘improper tactics’ passage [of Elstad],” we
explained, “is that the Court simply meant to connect such
police conduct to the potential involuntariness of the
unwarned statements.” Id. at 1037. Thus, Orso held that
where a postwarning statement is voluntarily made, the
“warned confession should . . . be suppressed only if [the pre-
warning statements] were involuntary, and any taint therefrom
had not dissipated by the time [the suspect] was read the
Miranda warnings.” Id. at 1039.
including the effect of his previously having made a confession, and the
manner in which the officers utilized this prior confession in obtaining a
second confession.” Wauneka, 770 F.2d at 1440. In addition, the govern-
ment must prove voluntariness by a preponderance of the evidence. Lego
v. Twomey, 404 U.S. 477, 489 (1972); see also Seibert, 542 U.S. at 609
n.1.
6Because Orso did not argue that her postwarning confession was invol-
untary, we did not address the voluntariness of the warned statement. See
Orso, 266 F.3d at 1039 n.4.
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B.
At issue in Seibert was the admissibility of a confession
obtained by the use of a two-step interrogation strategy,
termed “question-first,” that called for the deliberate with-
holding of the Miranda warning until the suspect confessed,
followed by a Miranda warning and a repetition of the confes-
sion already given. 542 U.S. at 604, 609-11 (Souter, J., plural-
ity opinion). As the facts in Seibert make clear, “[t]he object
of [the] question-first [tactic] is to render Miranda warnings
ineffective by waiting for a particularly opportune time to
give them, after the suspect has already confessed.” Id. at 611;
see also Orso, 266 F.3d at 1043-44 (Paez, J., concurring) (the
fact that the interrogating officer deliberately withheld the
Miranda warning “deprived Orso of information that was
indispensable to her exercise of free will”).
Like defendants Elstad and Orso, Seibert made incriminat-
ing statements both before and after receiving a Miranda
warning. Officers awakened Seibert, suspected of murdering
a teenager in a mobile home fire, at 3 a.m. and drove her to
a police station where one officer, who later testified that he
was explicitly instructed not to provide a Miranda warning at
this point, interrogated her for 30 to 40 minutes until she con-
fessed. Seibert, 542 U.S. at 604-05. Immediately after Seibert
confessed, she was given a 20-minute coffee and cigarette
break. Id. at 605. Officer Hanrahan then turned on a tape
recorder, gave her a Miranda warning and resumed question-
ing:
Hanrahan: “’Trice, didn’t you tell me that he was
supposed to die in his sleep?”
Seibert: “If that would happen, ’cause he was on that
new medicine, you know . . .”
Hanrahan: “The Prozac? And it makes him sleepy.
So he was supposed to die in his sleep?”
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Seibert: “Yes.”
Id. As in Elstad, the trial court suppressed the prewarning
statements but admitted the postwarning confession. See id. at
606.
Five Justices of the Supreme Court, however, found Seibert
distinguishable from Elstad even though Seibert’s prewarning
statements were, like Elstad’s, uncoerced and made voluntar-
ily. Justice Souter, joined in a plurality by Justices Stevens,
Ginsburg and Breyer, and Justice Kennedy concurring sepa-
rately, voted to suppress Seibert’s self-incriminating state-
ments, despite the fact that she gave them after receiving her
Miranda warning and ostensibly waiving her rights. See id. at
609, 616-17 (Souter, J., plurality opinion) (acknowledging
that a Miranda warning largely guarantees the admissibility of
confessions); id. at 618 (Kennedy, J., concurring in the judg-
ment). Contrary to Elstad, these Justices acknowledged that
some two-step interrogations yield inadmissible statements
even in the absence of coercion. They were therefore unwill-
ing to permit interrogators to exploit the mere form of the
Miranda warning while depriving it of any meaningful sub-
stance. As Justice Souter explained, the circumstances of Sei-
bert’s interrogation “challeng[ed] the comprehensibility and
efficacy of the Miranda warnings to the point that a reason-
able person in the suspect’s shoes would not have understood
them to convey a message that she retained a choice about
continuing to talk.” Id. at 617 (Souter, J., plurality opinion).
Justice Kennedy agreed, stating that a two-step interrogation
technique “designed to circumvent Miranda,” id. at 618,
“simply creates too high a risk that postwarning statements
will be obtained when a suspect was deprived of knowledge
essential to his ability to understand the nature of his rights
and the consequences of abandoning them.” Id. at 621 (Ken-
nedy, J., concurring in the judgment) (internal quotation
marks omitted).
[4] Although five Justices agreed that Seibert’s postwarn-
ing statement was inadmissible, the case did not produce a
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majority opinion. According to the plurality, when interroga-
tors question first and warn later, the threshold inquiry is
“whether it would be reasonable to find that in these circum-
stances the warnings could function ‘effectively’ as Miranda
requires.” Seibert, 542 U.S. at 611-12. The plurality therefore
focused on several objective factors to determine whether the
Miranda warning given in each case fulfilled the function of
advising the suspect that he or she had “a real choice about
giving an admissible statement” during the second stage of
interrogation. Id. at 612.
The contrast between Elstad and [Seibert] reveals a
series of relevant facts that bear on whether Miranda
warnings delivered midstream could be effective
enough to accomplish their object: the completeness
and detail of the questions and answers in the first
round of interrogation, the overlapping content of the
two statements, the timing and setting of the first and
the second, the continuity of police personnel, and
the degree to which the interrogator’s questions
treated the second round as continuous with the first.
Id. at 615. The plurality reasoned that the interrogation of
Elstad at the police station “present[ed] a markedly different
experience” — separate in time, location and tone — from the
brief interaction at Elstad’s home; as a result, the Miranda
warning given at the station offered Elstad a “genuine choice
whether to follow up on [his] earlier admission.” Id. at 615-
16.
In Seibert, by contrast, officers interrogated Seibert at
length before giving the Miranda warning and gave her only
a short break without any change of location after she con-
fessed, and then the same officer from the prewarning interro-
gation expressly used her unwarned statements to obtain a
warned confession. Id. at 616. In the plurality’s view, these
facts “by any objective measure reveal[ed] a police strategy
adapted to undermine the Miranda warnings.” Id. (emphasis
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added).7 In determining whether the warning was effective,
the plurality expressly stated that the “focus is on facts apart
from [the interrogator’s] intent that show the question-first
tactic at work.” Id. at 616-17 n.6. Because the facts in Seibert
did not “reasonably support a conclusion that the warnings
given could have served their purpose,” the plurality held that
Seibert’s postwarning statements were inadmissible. Id. at
617.
Although Justice Kennedy agreed that Seibert could be dis-
tinguished from Elstad, he viewed the plurality’s test for
admissibility as “cut[ting] too broadly” because the objective
inquiry into a midstream Miranda warning’s effectiveness
applied “to every two-stage interrogation.” Id. at 621-22. At
the same time, he recognized that in Seibert’s case, the police
withheld the Miranda warning “to obscure both the practical
and legal significance of the admonition when finally given.”
Id. at 620. To avoid undermining Miranda’s “clarity,” Justice
Kennedy would also evaluate the effectiveness of a midstream
warning using an objective inquiry, but only in cases in which
the police deliberately employed the two-step strategy to
undermine Miranda:
If the deliberate two-step strategy has been used,
postwarning statements that are related to the sub-
stance of prewarning statements must be excluded
unless curative measures are taken before the post-
warning statement is made. Curative measures
should be designed to ensure that a reasonable per-
son in the suspect’s situation would understand the
7As the plurality explained, “[w]hen the same officer who had con-
ducted the first phase recited the Miranda warnings, he . . . did not advise
that her prior statement could not be used. . . . The impression that the fur-
ther questioning was a mere continuation of the earlier questions and
responses was fostered by references back to the confession already given.
It would have been reasonable to regard the two sessions as parts of a con-
tinuum, in which it would have been unnatural to refuse to repeat at the
second stage what had been said before.” Seibert, 542 U.S. at 616-17.
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import and effect of the Miranda warning and of the
Miranda waiver. For example, a substantial break in
time and circumstances between the prewarning
statement and the Miranda warning may suffice in
most circumstances . . . . Alternatively, an additional
warning that explains the likely inadmissibility of
the prewarning custodial statement may be suffi-
cient.
Id. at 622 (emphasis added). However, absent a showing that
the law enforcement officers deliberately used the question-
first tactic to lessen the warning’s effectiveness, Justice Ken-
nedy would apply Elstad’s voluntariness standards to deter-
mine whether the postwarning confession is admissible. Id. at
622. Because the officers in Seibert deliberately employed the
question-first technique and then took no curative measures to
ensure that the midstream warning effectively apprised Sei-
bert of her rights, Justice Kennedy joined the plurality in con-
cluding that Seibert’s postwarning statement was
inadmissible. Id.8
Justice O’Connor, writing for the four dissenting Justices,
disagreed with the majority’s conclusion that Elstad could be
distinguished, but agreed with the plurality that Justice Ken-
nedy’s proposed “intent-based test” should not be applied. Id.
at 622-29 (O’Connor, J., dissenting). In addition, the dissent-
ing Justices viewed the objective inquiry into the midstream
warning’s effectiveness as “inform[ing] the psychological
judgment regarding whether the suspect has been informed
effectively of her right to remain silent.” Id. at 624. Because
they viewed this inquiry as relying on the theory that the “lin-
8Justice Breyer also wrote a brief concurrence indicating that he would
instruct courts to exclude the “fruits” of the unwarned questioning unless
the “failure to warn was in good faith.” Seibert, 542 U.S. at 617 (Breyer,
J., concurring). Although Justice Breyer joined the plurality opinion in
full, he also stated that he agreed with Justice Kennedy’s opinion “insofar
as it is consistent with [the application of a] good-faith exception” to an
exclusionary rule. Id. at 618.
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gering compulsion” of the unwarned statement requires sup-
pression of the postwarning statement — which Elstad
rejected — the dissenting Justices would have evaluated the
two-step interrogation procedure under Elstad’s voluntariness
standards. Id. at 627-28.
C.
[5] To determine whether Williams’ confession falls within
the exception to Elstad carved out in Seibert, we must first
decide how to interpret Seibert in light of these splintered
opinions. This is a question of first impression in this circuit,
although Judge Berzon has provided thoughtful guidance in a
recent dissenting opinion. See United States v. Rodriguez-
Preciado, 399 F.3d 1118, 1138-43 (9th Cir. 2005) (Berzon, J.,
dissenting).
[6] Ordinarily, “[w]hen a fragmented Court decides a case
and no single rationale explaining the result enjoys the assent
of five Justices, the holding of the Court may be viewed as
that position taken by those Members who concurred in the
judgments on the narrowest grounds.” Marks v. United States,
430 U.S. 188, 193 (1977) (citation and internal quotation
marks omitted). We need not find a legal opinion which a
majority joined, but merely “a legal standard which, when
applied, will necessarily produce results with which a major-
ity of the Court from that case would agree.” Planned Parent-
hood v. Casey, 947 F.2d 682, 693 (3d Cir. 1991), aff’d in part
and rev’d in part on other grounds, 505 U.S. 833 (1992); see
also Smith v. Univ. of Wash. Law Sch., 233 F.3d 1188, 1200
(9th Cir. 2000) (concluding that Justice Powell’s analysis in
Bakke is “the narrowest footing upon which a race-conscious
decision making process could stand”); King v. Palmer, 950
F.2d 771, 781-82 (D.C. Cir. 1991) (en banc) (explaining that
“the narrowest opinion must represent a common denomina-
tor of the Court’s reasoning”).9 To determine whether Seibert
9Applying Marks’ rule, we have often construed one Justice’s concur-
ring opinion as representing a logical subset of the plurality’s and as
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contains a precedential holding, we must identify and apply
a test which satisfies the requirements of both Justice Souter’s
plurality opinion and Justice Kennedy’s concurrence.
[7] Applying the Marks rule to Seibert, we hold that a trial
court must suppress postwarning confessions obtained during
a deliberate two-step interrogation where the midstream
Miranda warning — in light of the objective facts and cir-
cumstances — did not effectively apprise the suspect of his
rights. Although the plurality would consider all two-stage
interrogations eligible for a Seibert inquiry, Justice Kennedy’s
opinion narrowed the Seibert exception to those cases involv-
ing deliberate use of the two-step procedure to weaken Miran-
da’s protections. See Rodriguez-Preciado, 399 F.3d at 1139
(Berzon, J., dissenting) (“Justice Kennedy concurred in Sei-
bert on a ground arguably narrower than that relied upon by
the plurality.”); United States v. Kiam, ___ F.3d ___, 2005
WL 3578853 at *7 (3d Cir. Jan. 3, 2006) (stating that the
Third Circuit “applies the Seibert plurality opinion as nar-
rowed by Justice Kennedy”); United States v. Briones, 390
F.3d 610, 613-14 (8th Cir. 2004) (explaining that the “first
step” in Justice Kennedy’s “narrower test” is “to determine
whether a [two-step] interrogation process was used as a
deliberate strategy”); Stewart, 388 F.3d at 1090 (“Justice Ken-
nedy thus provided a fifth vote to depart from Elstad, but only
where the police set out deliberately to withhold Miranda
warnings until after a confession has been secured.”). In other
words, both the plurality and Justice Kennedy agree that
where law enforcement officers deliberately employ a two-
step interrogation to obtain a confession and where separa-
tions of time and circumstance and additional curative warn-
adopting a holding that would affect a narrower range of cases than that
of the plurality. See, e.g., United States v. Antelope, 395 F.3d 1128, 1135-
38 (9th Cir. 2005); Ctr. for Fair Pub. Policy v. Maricopa County, 336
F.3d 1153, 1161 (9th Cir. 2003); Smith, 233 F.3d at 1199-1200. Accord-
ingly, we have held such a concurrence binding under Marks.
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ings are absent or fail to apprise a reasonable person in the
suspect’s shoes of his rights, the trial court should suppress
the confession.10 This narrower test — that excludes confes-
sions made after a deliberate, objectively ineffective mid-
stream warning — represents Seibert’s holding. In situations
where the two-step strategy was not deliberately employed,
Elstad continues to govern the admissibility of postwarning
statements. See also United States v. Mashburn, 406 F.3d 303,
309 (4th Cir. 2005) (“The admissibility of postwarning state-
ments is governed by Elstad unless the deliberate ‘question-
first’ strategy is employed.”); Briones, 390 F.3d at 614
(applying Elstad after determining that law enforcement offi-
cers did not use a “deliberate strategy” of two-step interroga-
tion to circumvent Miranda); Stewart, 388 F.3d at 1090
(“Where the initial violation of Miranda was not part of a
deliberate strategy to undermine the warnings, Elstad appears
to have survived Seibert.”).
1. Determining Deliberateness
As an initial matter, we note that Justice Kennedy did not
articulate how a court should determine whether an interroga-
tor used a deliberate two-step strategy.11 Justice Kennedy
envisioned a deliberateness test that focuses on intent, but as
10Justices Souter and Kennedy may differ on one aspect of the Seibert
exception analysis, which is the effectiveness of additional curative warn-
ings. Justice Souter explained that the plurality does not “hold that a for-
mal addendum warning that a previous statement could not be used would
be sufficient to change the character of the question-first procedure to the
point of rendering an ensuing statement admissible,” but that “its absence
is clearly a factor.” Seibert, 542 U.S. at 616 n.7 (Souter, J., plurality opin-
ion). Justice Kennedy suggested that an addendum warning “may be suffi-
cient.” Id. at 622 (Kennedy, J., concurring in the judgment). Because no
curative warnings were given here, we need not determine the Court’s
holding on this issue.
11For example, Justice Kennedy’s opinion is silent as to what, if any,
presumptions apply or which party bears the burden of proving or disprov-
ing deliberateness.
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the plurality noted, “the intent of the officer will rarely be as
candidly admitted as it was here.” Seibert, 542 U.S. at 617 n.6
(Souter, J., plurality opinion). Consistent with our sister cir-
cuits, we hold that in determining whether the interrogator
deliberately withheld the Miranda warning, courts should
consider whether objective evidence and any available subjec-
tive evidence, such as an officer’s testimony, support an infer-
ence that the two-step interrogation procedure was used to
undermine the Miranda warning.12 See id. at 616 (Souter, J.,
plurality opinion) (concluding that the facts present in Seibert
“by any objective measure reveal a police strategy adapted to
undermine the Miranda warnings.”); see also Briones, 390
F.3d at 614 (examining objective evidence in the record to
conclude that interrogators did not use a deliberate strategy of
two-step interrogations). Such objective evidence would
include the timing, setting and completeness of the prewarn-
ing interrogation, the continuity of police personnel and the
overlapping content of the pre- and postwarning statements.
Id. at 615 (Souter, J., plurality opinion); see also id. at 621
(Kennedy, J., concurring in the judgment) (describing the
overlapping content of Seibert’s two confessions as evidence
of “the temptations for abuse inherent in the two-step tech-
nique”).13 By focusing on both “facts apart from intent that
12This test functions appropriately as a combination of Justice Souter’s
plurality opinion and Justice Kennedy’s concurrence. See Siegmund v.
Gen. Commodities Corp., 175 F.2d 952, 953 (9th Cir. 1949) (“The reasons
assigned by the two groups of Justices who concurred in the result are . . .
applicable . . . .”).
13For example, in United States v. Briones, the Eighth Circuit concluded
that the record contained no evidence suggesting that law enforcement
officers deliberately delayed the Miranda warning to circumvent the sus-
pect’s rights. 390 F.3d at 614. The court noted that the suspect did not
make an incriminating statement during the first interview as it was cut
short by the suspect’s unwillingness to answer the officer’s questions. Id.
Instead, the suspect’s “unexpected” (and unwarned) inculpatory statement
“did not result from interrogation” because it was made in the lobby after
the initial questioning had ended. Id. Moreover, the suspect’s postwarning
confession came a day and a half after the initial interview during a meet-
ing with law enforcement officers which the suspect himself requested.
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show the question-first tactic at work,” Seibert, 542 U.S. at
616-17 n.6 (Souter, J., plurality opinion), and any available
subjective evidence of deliberateness, courts will better ensure
that law enforcement officers do not circumvent the Fifth
Amendment right against self-incrimination through the use
of “interrogation practices . . . likely . . . to disable [an indi-
vidual] from making a free and rational choice” about speak-
ing. Miranda, 384 U.S. at 464-65.
Once a law enforcement officer has detained a suspect and
subjects him to interrogation — as was the case in Seibert and
is the case here — there is rarely, if ever, a legitimate reason
to delay giving a Miranda warning until after the suspect has
confessed.14 Instead, the most plausible reason for the delay is
an illegitimate one, which is the interrogator’s desire to
weaken the warning’s effectiveness. As Justice Souter
explained:
By any objective measure . . . it is likely that if the
interrogators employ the technique of witholding
warnings until after interrogation succeeds in elicit-
ing a confession, the warnings will be ineffective in
preparing the suspect for successive interrogation,
close in time and similar in content. After all, the
reason that question-first is catching on is as obvious
as its manifest purpose, which is to get a confession
the suspect would not make if he understood his
rights at the outset; the sensible underlying assump-
tion is that with one confession in hand before the
warnings, the interrogator can count on getting its
duplicate, with trifling additional trouble.
14Justice Kennedy suggested that in some situations, there may be a
legitimate reason for not giving a suspect an immediate Miranda warning,
such as when an officer does not plan to question the suspect or is waiting
for a more appropriate time to do so. Seibert, 542 U.S. at 620 (Kennedy,
J., concurring in the judgment). However, unlike the facts in Seibert and
this case, those situations assume that the officer has not begun interrogat-
ing the suspect.
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Seibert, 542 U.S. at 613 (Souter, J., plurality opinion). Justice
Kennedy agreed: “the two-step technique permits the accused
to conclude that the right not to respond did not exist when
the earlier incriminating statements were made. The strategy
is based on the assumption that Miranda warnings will tend
to mean less when recited midinterrogation, after inculpatory
statements have already been obtained.” Id. at 620 (Kennedy,
J., concurring in the judgment). Because law enforcement
officers generally retain control over the timing of a Miranda
warning and giving the warning to a custodial suspect
imposes only a minimal burden, the officer’s deferral of the
warning until after a suspect’s incriminating response further
supports an inference of deliberateness.
[8] In sum, when a law enforcement officer interrogates a
suspect but does not give a Miranda warning until after
obtaining a confession or an incriminating statement, a court
in deciding whether to suppress a subsequent, postwarning
confession must determine whether the warning was deliber-
ately withheld. The court should consider any objective evi-
dence or available expressions of subjective intent suggesting
that the officer acted deliberately to undermine and obscure
the warning’s meaning and effect.
2. Determining Effectiveness
When an interrogator has deliberately employed the two-
step strategy, Seibert requires the court then to evaluate the
effectiveness of the midstream Miranda warning to determine
whether the postwarning statement is admissible. Seibert, 542
U.S. at 615 (Souter, J., plurality opinion); id. at 622 (Ken-
nedy, J., concurring in the judgment). The court must deter-
mine, based on objective evidence, whether the midstream
warning adequately and effectively apprised the suspect that
he had a “genuine choice whether to follow up on [his] earlier
admission.” Id. at 616 (Souter, J., plurality opinion). In its
analysis, the court should look both to the objective circum-
stances the plurality cited as “bear[ing] on whether Miranda
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warnings delivered midstream could be effective enough to
accomplish their object,” id. at 615 (Souter, J., plurality opin-
ion), and to the curative measures characterized by Justice
Kennedy as “designed to ensure that a reasonable person in
the suspect’s situation would understand the import and effect
of the Miranda warning,” id. at 622 (Kennedy, J., concurring
in the judgment). See also Stewart, 388 F.3d at 1091 (explain-
ing that if the two-step interrogation was deliberately used,
“then the analysis of the Seibert plurality and Justice Kenne-
dy’s concurrence merge, requiring an inquiry into the suffi-
ciency of the break in time and circumstances between the
unwarned and warned confessions”).
Thus, the court must address (1) the completeness and
detail of the prewarning interrogation, (2) the overlapping
content of the two rounds of interrogation, (3) the timing and
circumstances of both interrogations, (4) the continuity of
police personnel, (5) the extent to which the interrogator’s
questions treated the second round of interrogation as continu-
ous with the first and (6) whether any curative measures were
taken. See Seibert, 542 U.S. at 615 (Souter, J., plurality opin-
ion); id. at 622 (Kennedy, J., concurring in the judgment).
Notably, both the plurality and Justice Kennedy found signifi-
cant that in giving Seibert her Miranda warning, “the police
did not advise that her prior statement could not be used.” Id.
at 616 (Souter, J., plurality opinion); id. at 622 (Kennedy, J.,
concurring in the judgment) (noting that an additional warn-
ing that explains the inadmissibility of the prewarning state-
ment would serve as a curative measure).15 Justice Kennedy
also found particularly troubling the overlapping content of
the officers’ pre- and postwarning questions: “[r]eference to
the prewarning statement [during the postwarning question-
ing] was an implicit suggestion that the mere repetition of the
earlier statement was not independently incriminating. The
15The plurality, however, noted that including such a cautionary state-
ment would not, on its own, necessarily cure the defects of the question-
first procedure. Seibert, 542 U.S. at 617 n.7 (Souter, J., plurality opinion).
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implicit suggestion was false.” Id. at 621 (Kennedy, J., con-
curring in the judgment). Finally, Justice Kennedy viewed the
continuous nature of the interrogation relevant to the suspect’s
experience of interrogation, suggesting — again, as a curative
measure — that a “substantial break in time and circum-
stances” between pre- and postwarning questioning, would
“in most circumstances, . . . allow[ ] the accused to distin-
guish the two contexts and appreciate that the interrogation
ha[d] taken a new turn.” Id. at 622.
[9] On the other hand, where the court finds deliberateness
to be absent, “[t]he admissibility of postwarning statements
should continue to be governed by the principles of Elstad.”
Id. at 622 (Kennedy, J., concurring in the judgment).
3. Seibert’s effect on relevant precedent
[10] Seibert diminishes Elstad but does not destroy it. We
conclude, however, that Orso cannot stand as the law of the
circuit in light of Seibert. Under Orso, regardless of the police
tactics employed, voluntary postwarning inculpatory state-
ments are excluded only when the prewarning statements
were not only unwarned but also involuntary, and any taint
therefrom had not dissipated by the time the Miranda warning
was given. Orso, 266 F.3d at 1039. However, a majority of
the Justices in Seibert would bar postwarning confessions
elicited during deliberate and unremedied two-step interroga-
tions, even if they were given after voluntary unwarned state-
ments.
[11] This holding abrogates Orso, because it indicates that
there are some “improper tactics,” short of coercion, that taint
a two-step confession. See Orso, 266 F.3d at 1036 (rejecting
petitioner’s contention that confession was inadmissible
because it was obtained by “improper tactics”). Because a
majority of the Court has held that in some category of cases
involving voluntary prewarning statements, police conduct
may nonetheless render Miranda warnings ineffective, we
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cannot simply revert to our prior law. See Miller v. Gammie,
335 F.3d 889, 893 (9th Cir. 2003) (en banc) (holding that
when a three-judge panel is faced with intervening precedent
from a higher court that is “clearly irreconcilable” with a prior
holding of this court, the panel is bound by the intervening
authority).
D.
[12] Because the district court did not have the benefit of
Seibert, it did not make the requisite factual inquiries to deter-
mine whether Agents O’Neil and Dobbs deliberately
employed the two-step interrogation, and if so, whether the
midstream warning effectively apprised Williams of his
rights. Without this targeted factual analysis, we cannot be
certain that Williams’ postwarning statement was properly
admitted as evidence. Although the evidence strongly sug-
gests that the midstream warning did not “function ‘effec-
tively’ as Miranda requires,” Seibert, 542 U.S. at 611-12
(Souter, J., plurality opinion), we are unable to determine on
the record before us whether the two-step strategy was used
deliberately to undermine Miranda (and therefore whether
Seibert’s objective inquiry into effectiveness applies). We
therefore reverse the district court’s order denying suppres-
sion of Williams’ postwarning confession, vacate the judg-
ment of conviction and remand for the district court to hold
a new suppression hearing consistent with this opinion. The
district court shall determine, based on objective as well as
any available subjective evidence, whether the two-step inter-
rogation was deliberately used to circumvent Miranda, and if
so, whether objective evidence demonstrates that the mid-
stream warning failed to apprise Williams effectively of his
rights, thereby requiring suppression of the postwarning confes-
sion.16 If the district court finds that the confession must be
suppressed, Williams’ conviction cannot stand.
16The objective inquiries into deliberateness and effectiveness function
practically as an analysis of whether the facts of a particular case more
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IV.
The government argues that even if the district court erred
in denying suppression, we should uphold Williams’ convic-
tion because any erroneous admission of Williams’ written
confession was harmless. “On direct review, the govern-
ment’s commission of a constitutional error requires reversal
of a conviction unless the government proves ‘beyond a rea-
sonable doubt that the error complained of did not contribute
to the verdict obtained.’ ” United States v. Garibay, 143 F.3d
534, 539 (9th Cir. 1998) (quoting Chapman v. California, 386
U.S. 18, 24 (1967)). Any error in this case was not harmless
beyond a reasonable doubt.17
Erroneous admission of a confession does not constitute
structural error. See Arizona v. Fulminante, 499 U.S. 279,
306-12 (1991). The Supreme Court has, however, acknowl-
edged that:
closely resemble those in Seibert or Elstad. Although we leave this analy-
sis for the district court, several facts should guide its inquiries. For exam-
ple, Williams was in custody from the point at which Agents O’Neil and
Dobbs took him into the old reception area and began questioning him.
Before giving the Miranda warning, Agent O’Neil questioned Williams
using standard interrogation techniques and until he obtained a confession;
then, without any break in time or change of venue, he read Williams his
Miranda rights and asked Williams to write down what he had already
told them. Finally, the court should determine whether the agents took any
curative measures “to ensure that a reasonable person in the suspect’s situ-
ation would understand the import and effect of the Miranda warning and
of the Miranda waiver.” Seibert, 542 U.S. at 622 (Kennedy, J., concurring
in the judgment).
17Assuming Williams’ postwarning confession was improperly admit-
ted, we would also conclude under the standard of Brecht v. Abrahamson,
507 U.S. 619 (1993), that the written confession “likely had a substantial
and injurious impact on the verdict.” Sims v. Brown, 425 F.3d 560, 570
(9th Cir. 2005) (quoting Taylor v. Maddox, 366 F.3d 992, 1016 (9th Cir.
2004). Unlike in Sims, the evidence of Williams’ guilt is not so “over-
whelming” as to preclude the “reasonable likelihood that the challenged
statement[ ] actually prejudiced him.” Id. at 571.
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A confession is like no other evidence. Indeed, “the
defendant’s own confession is probably the most
probative and damaging evidence that can be admit-
ted against him . . . . Certainly, confessions have pro-
found impact on the jury, so much so that we may
justifiably doubt its ability to put them out of mind
even if told to do so.”
Id. at 296 (quoting Bruton v. United States, 391 U.S. 123,
139-40 (1968) (White, J., dissenting)). In Fulminante, the
Court distinguished between two types of erroneously admit-
ted confessions — those that “concern isolated aspects of the
crime or may be incriminating only when linked to other evi-
dence” and “full confession[s] in which the defendant dis-
closes the motive for and means of the crime.” Id. The latter,
the Court explained, will seldom be harmless because they
“may tempt the jury to rely upon that evidence alone in reach-
ing its decision.” Id.
[13] Our case law tracks this distinction. We have held
erroneous admission of inculpatory statements harmless under
the Chapman standard only where the confession did not go
to the heart of the case. See, e.g., Garibay, 143 F.3d at 539-
40 (holding admission not harmless where defendant’s state-
ments “were the thrust of the prosecution’s case”); United
States v. Harrison, 34 F.3d 886 (9th Cir. 1994) (reversing
conviction where district court erroneously admitted defen-
dant’s statement that provided a detailed account of the
crimes charged); cf. United States v. Padilla, 387 F.3d 1087,
1093-94 (9th Cir. 2004) (holding error harmless where “[t]he
only usefulness of the statement was that it was inconsistent
with the defense Padilla put on”). Williams’ full confession
went to the heart of his case.
[14] Additionally, contrary to the government’s assertion,
we cannot be certain on the record before us that the jury
would have pieced together the other evidence presented by
the government and reached a guilty verdict. In addition to the
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confession, the government submitted Williams’ application,
which listed Williams’ height as 5’ 8” (a height between Wil-
liams’ actual height and Iddrissu’s), the testimony of a clerk
that he showed Williams his application with Iddrissu’s pho-
tographs attached and Williams’ testimony that plans for the
trip to London, mentioned in the application, had not been
finalized. This evidence clearly supported the government’s
argument that Williams intended to obtain a passport for
Iddrissu. But Williams also presented contrary evidence to the
jury. He testified that the photographs must have been
switched inadvertently, or, in the alternative, that Iddrissu
must have intentionally switched the photographs without
telling Williams. In the absence of the confession, it is not
clear that the jury would have credited the government’s story
over Williams’ version. As we cannot be certain “beyond a
reasonable doubt that the error complained of did not contrib-
ute to the verdict obtained,” and in light of the Court’s guid-
ance in Fulminante, we hold that the admission of Williams’
written confession, if erroneous, was not harmless. Chapman,
386 U.S. at 24.
V.
[15] We REVERSE the district court’s order denying sup-
pression, VACATE the judgment of conviction and
REMAND the case to the district court for further proceed-
ings consistent with this opinion.
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