United States v. Moore 1

10-2740-cr
United States v. Moore
1
UNITED STATES COURT OF APPEALS 2
3
FOR THE SECOND CIRCUIT 4
5
August Term, 2011 6
7
8
(Argued: November 17, 2011 Decided: February 22, 2012) 9
10
Docket No. 10-2740-cr 11
12
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14
United States, 15
16
Appellee, 17
18
- v.- 19
20
Chauncey Moore, 21
22
Defendant-Appellant. 23
24
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26
Before: JACOBS, Chief Judge, CABRANES and 27
LIVINGSTON, Circuit Judges. 28
29
Chauncey Moore appeals from a judgment entered in the 30
United States District Court for the District of Connecticut 31
(Chatigny, J.) on a plea of possession of a firearm by a 32
felon. The plea was conditioned on the ability to appeal 33
the district court’s decision on his motion to suppress. 34
After his arrest, Moore inculpated himself when he was 35
questioned by police before he received Miranda warnings and 36
again later, after he was warned. Moore contends that the 37

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2
subsequent confession must be suppressed because it was 1
obtained through a two-part interrogation technique outlawed 2
as a violation of the Fifth Amendment in Missouri v. 3
Seibert, 542 U.S. 600 (2004) . 4
The district court declined to suppress the subsequent 5
confession, and Moore appeals from that ruling. We conclude 6
that the subsequent confession was given voluntarily and 7
without coercion, and was not elicited by the proscribed 8
two-step technique. 9
Moore also contends that the second interview violated 10
his Sixth Amendment right to counsel. We conclude that the 11
confession did not offend the Sixth Amendment because his 12
right to counsel had not yet attached, particularly with 13
regard to the federal offense for which he was prosecuted 14
below. 15
Affirmed. 16
Jeremiah Donovan, Old Saybrook, CT, 17
for Appellant. 18
19
Sandra S. Glover, Assistant United 20
States Attorney (Robert M. Spector, 21
Assistant United States Attorney, on 22
the brief), District of Connecticut, 23
for David B. Fein, United States 24
Attorney, District of Connecticut 25
for Appellee. 26
27
28

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3
DENNIS JACOBS, Chief Judge: 1
2
Chauncey Moore appeals from a judgment entered in the 3
United States District Court for the District of Connecticut 4
(Chatigny, J.) on a plea of possession of a firearm by a 5
felon. The plea was conditioned on his appeal of the 6
district court’s decision denying (in relevant part) his 7
motion to suppress. 8
While fleeing arrest on a warrant, Moore tossed a gun 9
away. During an exchange in the police station lockup after 10
his arrest but before he received Miranda warnings, he told 11
a law-enforcement officer where he had tossed the gun. A 12
few hours later he confessed to other officers after the 13
warnings were administered. Moore contends that he 14
confessed because of a two-part interrogation technique 15
outlawed as a violation of the Fifth Amendment in Missouri 16
v. Seibert, 542 U.S. 600 (2004) . 17
The district court suppressed the statement made in 18
lockup -- a ruling from which the Government takes no appeal 19
-- but declined to suppress the confession. Moore takes 20
this appeal from that ruling. We conclude that the 21
confession was given voluntarily, without coercion, and 22
without violation of Seibert. 23

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4
Moore also contends that the second interview violated 1
his Sixth Amendment right to counsel because his right to 2
counsel had attached prior to being questioned. We conclude 3
that the confession did not offend the Sixth Amendment 4
because the right to counsel had not attached, in particular 5
with regard to the federal offense for which he was 6
prosecuted below. 7
Affirmed. 8
9
BACKGROUND 10
On the afternoon of September 23, 2002, a Connecticut 11
Superior Court judge issued an arrest warrant for Chauncey 12
Moore on charges that arose from a carjacking and attempted 13
armed robbery in which shots were fired. After 11 p.m. that 14
night, Officer Mark R. Suda spotted Moore walking down the 15
street in Norwalk, and gave chase. After Suda lost sight of 16
him, Moore tossed a handgun onto the roof of a house. Suda 17
searched the path of Moore’s flight after giving up the 18
chase, but found nothing. 19
Moore was apprehended the following morning, around 20
6:15 a.m., and placed in the lockup. The arresting officers 21
did not question him and did not administer Miranda 22
warnings. 23

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1 In order to “process” an arrestee, the precinct
would, inter alia, “generate a computerized report
containing . . . [a] statement of the pending charges.”
United States v. Moore, No. 3:03-CR-178 (RNC), 2007 WL
708789, *2 (D. Conn. Feb. 20, 2007).
2 When Zavodjancik returned to the lockup at about
10:00 a.m., he found a file on his desk containing the
information he needed to process Moore. The file had not
been there before. Zavodjancik then processed Moore,
although he made no attempt to take him to court then or
5
At 8:30 a.m., Detectives Arthur Weisgerber and Michael 1
Murray were sent to the lockup to interview Moore, who was 2
asleep. They tried to awaken him, but Moore told them he 3
did not know why he had been arrested and went back to 4
sleep. The detectives left. 5
Officer William Zavodjancik was in charge of the lockup 6
that day. Generally, arrestees placed in the lockup by 7:00 7
a.m. on a weekday (like Moore) would be processed and taken 8
to the court the same morning. At 9:15 a.m., Zavodjancik 9
took several arrestees to court for arraignment, but Moore 10
was not among them because Zavodjancik lacked the 11
information necessary to “process” him prior to 12
arraignment.1 The district court concluded “[o]n the record 13
before [it], . . . [that] Officer Zavodjancik engaged in no 14
deliberate wrongdoing as alleged by [Moore].” Moore, 2007 15
WL 708789, at *2. (Moore does not challenge this factual 16
finding.2) 17

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later that day. Accordingly, Moore was not arraigned until
the next day.
Moore contended below that Zavodjancik purposefully
failed to have him arraigned in violation of the directive
in the arrest warrant that Moore was to be brought to court
“without undue delay.” Moore, 2007 WL 708789, at *2
(quotation marks omitted). The district court found “no
evidence” that anyone asked Zavodjancik to refrain from
taking Moore to court, “nor any evidence” suggesting that
Zavodjancik “would engage in such a subterfuge.” Id.
6
Just after noon, during one of Zavodjancik’s routine 1
checks on prisoners in the lockup, Moore asked to speak with 2
a detective. Zavodjancik could not reach anyone in the 3
detectives’ bureau, and left a message. During the next 4
check, Moore asked again to speak with a detective; 5
Zavodjancik called again and left another message. 6
Around 2 p.m., Moore asked to use a pay phone and was 7
moved to a cell with a phone. Half an hour later, while 8
still in that cell, Moore spotted a Norwalk narcotics 9
officer he knew (Sergeant Ronald Pine), and called him over. 10
Pine was not involved in Moore’s case and did not know that 11
Moore was in the lockup until he heard Moore call his name. 12
All Pine knew about Moore’s arrest was that there had been 13
an incident in which shots were fired and that the gun had 14
not yet been recovered. 15
When Moore called to him, Pine came over and asked 16
“What’s up?” Moore asked Pine to help him get released on a 17

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7
promise to appear, as Pine had done once before (on a 1
larceny charge). Pine said he could not help because the 2
pending charges involved discharge of a firearm. 3
Pine then asked Moore if he could tell him where the 4
gun was, and Moore said he was reluctant to answer because 5
he did not want to face a federal gun charge. Pine offered 6
to put in a good word for him with the state’s attorney. 7
During this brief exchange, Pine saw Agent Ron Campanell of 8
the Federal Bureau of Alcohol, Tobacco, Firearms, and 9
Explosives (who was there on an unrelated matter), and asked 10
him to join them. Pine told Moore that he could talk to 11
Campanell after Moore helped them find the gun. 12
Moore agreed, told them where he had tossed the gun, 13
and drew a map. Map in hand, Pine and Campanell drove to 75 14
South Main Street where, from the rear of the property, they 15
could see the gun on the roof of the house. Detectives 16
Weisgerber and Murray arrived and photographed the scene 17
before retrieving the gun. Pine then informed the 18
detectives that Moore wanted to talk to them. 19
Just after 4:00 p.m. -- about one hour and 35 minutes 20
after Pine and Moore began talking -- the detectives arrived 21
at Moore’s cell. Moore told them that he was willing to 22
talk about the pending charges. They moved him to a nearby 23
interview room, where they were joined by Campanell. 24

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8
The detectives told Moore that he was in serious 1
trouble; but before they began asking questions, they handed 2
him an advice of rights and waiver form. By this point, 3
Moore had decided it was in his best interest to cooperate. 4
He read the form aloud, initialed each paragraph, and signed 5
on the bottom. 6
Over the next 45 minutes, the detectives asked him 7
where he got the gun; who else in Norwalk possessed a gun; 8
whether he had information about several cold homicide 9
cases; and what he knew about the carjacking and attempted 10
robbery for which he had been arrested. Moore gave evasive 11
answers to the first two inquiries. He did disclose his 12
role in the carjacking and attempted robbery, but refused to 13
provide a written statement without speaking to counsel. 14
The detectives ended the interview. 15
The following day (September 25, 2002), Moore was 16
arraigned on the state charges. Later, the United States 17
Attorney obtained an indictment against Moore on the federal 18
charge of being a felon in possession of a firearm. See 18 19
U.S.C. § 922(g). 20
In the federal criminal case, Moore moved to suppress 21
his statements to investigators (and the gun) on the grounds 22

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9
that he was not advised of his Miranda warnings and that his 1
questioning violated his Sixth Amendment right to counsel, 2
which he argues attached when the state prosecutor filed an 3
information along with the application for an arrest 4
warrant. The district court suppressed the initial, 5
unwarned statement Moore provided to Pine and Campanell 6
while in the lockup. The district court did not suppress 7
the gun as a fruit of the unwarned statement, however, 8
because the gun was physical evidence obtained from a 9
voluntary statement. Moore, 2007 WL 708789, at *5 n.5 10
(citing United States v. Patane, 542 U.S. 630 (2004)). The 11
district court also denied the motion to suppress the later, 12
warned statement. 13
Moore subsequently entered a conditional guilty plea 14
that permitted him to take this appeal. Moore was sentenced 15
principally to 110 months’ incarceration and three years of 16
supervised release. 17
18
DISCUSSION 19
When reviewing a district court’s decision in the 20
government’s favor on a motion to suppress, this Court 21
“examine[s] the record in the light most favorable to the 22

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10
government.” United States v. Rommy, 506 F.3d 108, 131 (2d 1
Cir. 2007). We “review a district court’s determination 2
regarding the constitutionality of a Miranda waiver de 3
novo,” and its factual findings for “clear error.” United 4
States v. Carter, 489 F.3d 528, 534 (2d Cir. 2007). 5
6
I. 7
A. 8
The district court suppressed Moore’s initial, unwarned 9
statement as obtained in violation of his Fifth Amendment 10
rights under Miranda v. Arizona, 384 U.S. 436 (1966), but 11
did not suppress Moore’s post-warning statement. Because 12
the government does not appeal the suppression of Moore’s 13
initial statement, the only issue before us is whether the 14
district court erred in not suppressing Moore’s subsequent 15
confession, provided after he was Mirandized. 16
Moore argues that police improperly engaged in a 17
deliberate two-step interrogation technique designed to 18
subvert his Fifth Amendment rights by getting him to 19
incriminate himself before being advised of his rights, then 20
reading him his rights and getting him to incriminate 21
himself again while still disarmed by the original 22

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11
incrimination. Under these circumstances, Moore argues, 1
both the initial, unwarned statement and the later, post- 2
warning statement must be suppressed. 3
The Supreme Court has twice considered whether a post- 4
warning inculpatory statement must be suppressed if the 5
defendant was previously interrogated without being warned. 6
First, in Oregon v. Elstad, 470 U.S. 298 (1985), police 7
executed a warrant for the arrest of the 18-year old Elstad 8
on a burglary charge. Id. at 300. At his house, Elstad’s 9
mother allowed the police to go upstairs, where they 10
arrested her son. Id. As the police were removing him from 11
the home, they took his mother aside to explain the 12
situation. Id. at 300-01. In that interval, an officer 13
questioned Elstad without advising him of his Miranda 14
rights, and Elstad implicated himself. Id. at 301. Later, 15
at the police station, Elstad was “Mirandized” and 16
interrogated, and gave a complete confession. Id. at 301- 17
02. Elstad argued for suppression of the warned confession 18
on the ground that the initial statement “let the cat out of 19
the bag” and “tainted” his subsequent confession. Id. at 20
303-04 (internal quotation marks omitted). 21
22

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12
“Though Miranda requires that the unwarned admission 1
must be suppressed,” the Supreme Court ruled that “the 2
admissibility of any subsequent statement should turn in 3
these circumstances solely on whether it is knowingly and 4
voluntarily made.” Id. at 309. The “subsequent 5
administration of Miranda warnings to a suspect who has 6
given a voluntary but unwarned statement ordinarily should 7
suffice to remove the conditions that precluded admission of 8
the earlier statement,” because “the finder of fact may 9
reasonably conclude that the suspect made a rational and 10
intelligent choice whether to waive or invoke his rights.” 11
Id. at 314. “[T]here is no warrant for presuming coercive 12
effect where the suspect’s initial inculpatory statement, 13
though technically in violation of Miranda, was voluntary.” 14
Id. at 318. “The relevant inquiry” is whether “the second 15
[post-warning] statement was . . . voluntarily made.” Id. 16
Elstad involved an accidental or mistaken interrogation 17
in violation of Miranda. See Elstad, 470 U.S. at 314 18
(explaining that the police did not use “deliberately 19
coercive or improper tactics” to obtain the initial, 20
unwarned statement). In Missouri v. Seibert, 542 U.S. 600 21
(2004), the Court considered a deliberate effort to 22

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13
circumvent Miranda. In Seibert, the police interrogated a 1
woman suspected of arson. In the first interview, the 2
police intentionally refrained from advise her of her 3
rights, and elicited all the information they needed. They 4
then warned her, and again interrogated her using the first 5
statements against her to obtain a post-warning confession. 6
Id. at 604-06. Five justices found that this tactic 7
violated the suspect’s Fifth Amendment rights even with 8
regard to the statement given post-warning. 9
The justices split as to the proper test. The 10
plurality (Souter, Stevens, Ginsburg, and Breyer, JJ.) 11
concluded that the warning administered prior to the second 12
statement was ineffective, id. at 611-12, distinguishing 13
Elstad on that basis. Id. at 615. Five factors were said 14
to be relevant to that inquiry: (1) “the completeness and 15
detail of the questions and answers in the first round of 16
interrogation,” (2) “the overlapping content of the two 17
statements,” (3) “the timing and setting of the first and 18
second” interrogations, (4) “the continuity of police 19
personnel” doing the questioning, and (5) “the degree to 20
which the interrogator’s questions treated the second round 21
as continuous with the first.” Id. The warning was deemed 22

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14
ineffective because: the original “questioning was 1
systematic, exhaustive, and managed with psychological 2
skill”; there “was little, if anything, of incriminating 3
potential left unsaid”; the two interrogations took place 4
“only 15 or 20 minutes” apart, “in the same place,” and with 5
“the same officer”; nothing was said to dispel the 6
impression that the first statement could be used against 7
the suspect; and it reasonably appeared to the suspect that 8
“the further questioning was a mere continuation of the 9
earlier questions and responses.” Id. at 616. 10
Justice Kennedy’s concurrence disagreed with the 11
plurality’s reasoning. In Justice Kennedy’s view, the real 12
difference between Elstad and Seibert was that Seibert 13
involved a “deliberate, two-step strategy, predicated upon 14
violating Miranda.” Id. at 621 (Kennedy, J., concurring). 15
It was decisive for Justice Kennedy that the two-step 16
process was arranged by the police deliberately as a 17
“calculated way to undermine the Miranda warning” -- 18
something that is only likely to occur “in the infrequent 19
case.” Id. at 622. So, in Justice Kennedy’s view, if there 20
is a deliberate two-step, the “postwarning statements that 21
are related to the substance of prewarning statements must 22

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15
be excluded unless curative measures are taken before the 1
postwarning statement is made.” Id. Such “curative 2
measures” are those “designed to ensure that a reasonable 3
person in the suspect’s situation would understand the 4
import and effect of the Miranda warning and of the Miranda 5
waiver.” Id. Such curative measures could include “a 6
substantial break in time and circumstances between the 7
prewarning statement and the Miranda warning” or “an 8
additional warning that explains the likely inadmissibility 9
of the prewarning custodial statement.” Id. 10
This Court first addressed the issue of a two-step 11
interrogation in United States v. Carter, where we 12
implicitly found controlling Justice Kennedy’s concurrence 13
in Seibert and “join[ed] our sister circuits in holding that 14
Seibert lays out an exception to Elstad for cases in which a 15
deliberate, two-step strategy was used by law enforcement to 16
obtain the postwarning confession.” United States v. 17
Carter, 489 F.3d 528, 536 (2d Cir. 2007). In Carter, 18
officers executing a search warrant smelled crack cocaine 19
and discovered a bag containing crack and powder cocaine as 20
well as a brown substance they believed to be heroin. The 21
suspect (Bearam), unwarned, said that the substance was “bad 22

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16
co[caine].” Id. at 533. Bearam was interrogated again 1
after being Mirandized, and admitted that he sold drugs and 2
had received the bag of drugs discovered by the authorities. 3
Id. 4
The facts in Carter did not amount to a proscribed two- 5
step strategy because (1) “there was almost no overlap 6
between th[e] statement and the full confession [Bearam] 7
gave after he received the warnings,” (2) over an hour had 8
passed between the two statements, (3) the investigators 9
were not the same in the first and second interviews, (4) 10
the investigators in the second interview did not know about 11
Bearam’s original statement, and (5), unlike in Seibert 12
where “the second round of interrogation was essentially a 13
cross-examination using information gained during the first 14
round of interrogation,” in Carter the “postwarning 15
questioning was not a continuation of the prewarning 16
questioning.” Id. Finally, having found no deliberate two- 17
step we applied the principle of Justice Kennedy’s Seibert 18
concurrence and concluded that Bearam waived his rights: his 19
initial, prewarning statement was “voluntary”; the 20
questioning “not coercive”; and the later, post-warning 21
statement was, therefore, admissible. Id. at 537. 22

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17
We considered this issue again in United States v. 1
Capers, 627 F.3d 470 (2d Cir. 2010). Capers was caught in a 2
sting operation stealing money from Express Mail envelopes. 3
Id. at 472-73. After Capers and another man (Lopez) were 4
arrested and separated, Capers was questioned by a postal 5
inspector without being warned, and incriminated himself. 6
Id. After Capers was transported to another facility and 7
advised of his rights, he was again interviewed by the same 8
postal inspector, and again incriminated himself. Id. at 9
473. We affirmed the suppression of both sets of 10
statements. Id. at 474, 485. 11
In affirming the suppression, we decided several 12
questions left open by Seibert and Carter, that will bear 13
upon our analysis here. First, we made explicit what was 14
implicit in Carter: Justice Kennedy’s concurrence in Seibert 15
is controlling. Capers, 627 at 476. Second, although 16
Justice Kennedy wrote of a deliberate two-step scheme, his 17
concurrence did not explain how a court is to determine 18
whether such a strategy has been employed. So, “we join[ed] 19
our sister circuits in concluding that a court should review 20
the totality of the objective and subjective evidence 21
surrounding the interrogations in order to determine 22

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18
deliberateness . . . .” Id. at 479. Third, we held that 1
the prosecution bears the burden of disproving by a 2
preponderance of the evidence that the government employed a 3
deliberate two-step strategy to deprive the defendant of the 4
protections afforded by the Fifth Amendment. Id. at 479-80. 5
Finally, we advised a somewhat closer scrutiny of an 6
investigator’s testimony of subjective intent when the 7
proffered rationale is not a “legitimate” reason to delay or 8
where it “inherently lacks credibility” in view of the 9
“totality of the circumstances.” Capers, 627 F.3d at 484 10
n.5. Such scrutiny is not ordinarily required when the 11
reason for delay is legitimate, such as officer or community 12
safety or when delay is a product of a “rookie mistake,” 13
miscommunication, or “a momentary lapse in judgment.” Id. 14
Moreover, if it is found, after weighing the investigator’s 15
credibility, that the investigator’s intent was not 16
“calculated . . . to undermine Miranda,” delay will not 17
require exclusion of the later, warned statement even if the 18
court finds that the delay was for an illegitimate reason 19
and even in the absence of curative measures. Id. at 482. 20
21
22

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19
B. 1
These authorities can be applied using a 2
straightforward analysis. First, was the initial statement, 3
though voluntary, obtained in violation of the defendant’s 4
Miranda rights? If not, there is no need to go further. 5
See United States v. Courtney, 463 F.3d 333, 336 (5th Cir. 6
2006). If the initial statement was obtained in violation 7
of the defendant’s Miranda rights, has the government 8
demonstrated by a preponderance of the evidence, and in 9
light of the totality of the objective and subjective 10
evidence, that it did not engage in a deliberate two-step 11
process calculated to undermine the defendant’s Miranda 12
rights? If so, the defendant’s post-warning statement is 13
admissible so long as it, too, was voluntary; if not, the 14
post-warning statement must be suppressed unless curative 15
measures (designed to ensure that a reasonable person in the 16
defendant’s position would understand the import and effect 17
of the Miranda warnings and waiver) were taken before the 18
defendant’s post-warning statement. 19
20
21
22

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20
C. 1
The district court concluded that Moore’s initial 2
statement was obtained in violation of his Miranda rights. 3
The government does not appeal that decision; so we proceed 4
on that assumption. 5
In considering whether the government has demonstrated 6
that it did not engage in a deliberate two-step process 7
designed to thwart Moore’s Miranda rights, we “review the 8
totality of the objective and subjective evidence 9
surrounding the interrogations,” Capers, 627 F.3d at 479, 10
guided by -- but not limited to -- the factors identified by 11
the plurality in Seibert, see Capers, 627 F.3d at 483-84 12
(applying plurality’s factors); see also Seibert, 542 U.S. 13
at 615 (identifying factors). Although the five Seibert 14
factors were developed by the plurality to gauge whether the 15
later Miranda warnings “could be effective enough to 16
accomplish their object,” Seibert, 542 U.S. at 515, they 17
likewise will often serve as helpful indicia for whether an 18
alleged two-step interrogation was intended to circumvent 19
Miranda, see, e.g., Capers, 627 F.3d at 483-84; Carter, 489 20
F.3d at 536. We therefore use the plurality’s five factors 21
not to weigh the effectiveness of the later Miranda 22

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3 The five Seibert factors consulted in this particular
case “are by no means the only factors to be considered. . .
. [Instead,] a court should review the totality of the
objective and subjective evidence surrounding the
interrogations in order to determine deliberateness.” See
Capers, 627 F.3d at 479. Subjective evidence of the
investigators’ intent, if credible, will of course be
persuasive, and often decisive.
21
warnings, but to shed light on the detectives’ intent. 3
1
A review of the evidence leads us to conclude that the 2
government did not engage in a deliberate two-step strategy 3
to deprive Moore of his Miranda rights. There is no 4
subjective evidence of intent here -- no testimony, for 5
example, by any officer of an intent to use a two-step 6
technique, nor any evidence that such intent was reflected 7
in a police report. See, e.g., Capers, 627 F.3d at 479 8
(categorizing the interrogating officer’s testimony as 9
subjective evidence); cf. Ryan Iron Works, Inc. v. NLRB, 257 10
F.3d 1, 9 (1st Cir. 2001) (observing that subjective 11
criteria includes a party’s “own characterization of [its] 12
motive”) (internal quotation marks omitted). Nor is there 13
any objective evidence that such a technique was used. 14
Moore, 2007 WL 708789, at *2 (finding “no evidence” that the 15
government intentionally delayed bringing Moore to court or 16
engaged in any such subterfuge or deliberate wrongdoing in 17
order to obtain a confession). 18

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4 See, e.g., New York v. Quarles, 467 U.S. 649, 659
(1984).
5 The District Court’s holding rested on a lack of
exigent circumstances, not on any adverse credibility
finding regarding the testimony of Sergeant Pine. Moore,
2007 WL 708789, at *2–3, *5; see Capers, 627 F.3d at 481,
484 n.5. Although Pine’s stated public safety rationale was
22
Moreover, a discarded gun obviously poses public safety 1
considerations. True, the district court ruled that the 2
public safety exception 4 did not, as a matter of law, excuse 3
the failure to give Miranda warnings at the initial 4
interview, see Moore, 2007 WL 708789, at *5 -- a ruling we 5
do not consider, much less adopt, inasmuch as it was 6
unchallenged by the government on appeal. Nevertheless, 7
undoubted public safety considerations plausibly account for 8
the conduct of the police in a way that militates against 9
finding that the first interview was a premeditated attempt 10
to evade Miranda. See generally Capers, 627 F.3d at 481; 11
id. at 492-94 (Trager, J., dissenting); cf. United States v. 12
Hernandez-Hernandez, 384 F.3d 562, 566 (8th Cir. 2004) 13
(finding that the failure of the officer to read the 14
defendant “his rights does not seem to have been ‘an 15
intentional withholding that was part of a larger nefarious 16
plot.’” (quoting Reinert v. Larkins, 379 F.3d 76, 91 (3d 17
Cir. 2004))). 5
18

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insufficient to render Moore’s first statement admissible
under the public safety exception to Miranda, it was
sufficient, “in light of the totality of the circumstances,”
Capers, 627 F.3d at 484 n.5, to show that Pine did not
intend to circumvent Miranda with this unwarned questioning.
Under Capers, therefore -- even in the absence of one of the
recognized “legitimate” reasons for delaying Miranda
warnings, id. -- Pine’s rationale does not bar admission of
the second warned, statement, regardless of whether curative
measures were undertaken.
23
The objective evidence -- including the narrowness of 1
overlap between the subjects of the two interrogations, the 2
participation of different officers, and the elapse of 90 3
minutes between the interrogations -- decidedly points 4
against concluding that the government engaged in a 5
deliberate two-step process designed to undermine Moore’s 6
Fifth Amendment rights. 7
1. Thoroughness of the first interrogation. The first 8
factor considers “the completeness and detail of the 9
questions and answers in the first round of interrogation.” 10
Seibert, 542 U.S. at 615. As opposed to Seibert -- where 11
the initial “questioning was systematic, exhaustive, . . . 12
managed with psychological skill,” and left “little, if 13
anything, of incriminating potential . . . unsaid,” id. at 14
616 -- here the initial questioning was brief and spare. 15
Sergeant Pine’s questioning of Moore in the lockup was 16
limited to the location of the gun because, as the 17

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24
government argued, Pine was worried about the danger to the 1
public of someone finding a (potentially loaded) weapon. 2
Pine asked no questions about Moore’s involvement in the 3
attempted robbery or carjacking, about who else was involved 4
in either of those incidents, or about how Moore obtained 5
the gun. Pine’s sole and limited focus was finding the gun. 6
See United States v. Verdugo, 617 F.3d 565, 575 (1st Cir. 7
2010) (finding it significant that the defendant “was asked 8
only a limited number of questions before he was read his 9
Miranda rights”). 10
2. Overlap. The second factor -- “the overlapping 11
content of the two statements,” Seibert, 542 U.S. at 615 -- 12
also favors the government. See United States v. Stewart, 13
536 F.3d 714, 722 (7th Cir. 2008) (“[T]he lack of overlap 14
between the warned and unwarned statements is evidence that 15
the interrogator did not deliberately use a two-step 16
strategy designed to circumvent Miranda.”). Whereas the 17
initial questioning focused exclusively on the location of 18
the gun, the second questioning was broad and systematic: it 19
focused on the attempted robbery and carjacking, where Moore 20
got the gun, who else in town had guns, and whether Moore 21
had any information about cold homicide cases. The two 22

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25
rounds of questioning did not appreciably overlap. See 1
Carter, 489 F.3d at 536 (finding “almost no overlap” between 2
the initial questioning involving the contents of a baggie 3
found during the search and the defendant’s later full 4
confession); see also United States v. Jackson, 608 F.3d 5
100, 104 (1st Cir. 2010) (finding significant that the 6
initial questioning was “aimed primarily at securing the 7
weapon”). 8
3. Timing and setting. The circumstances of the 9
interrogations likewise favor the government. Although both 10
rounds of questioning took place within the police station, 11
the first began when Moore initiated a conversation with 12
Pine after he saw Pine walking through the station and 13
called him over to speak with him. Moore did so because he 14
knew Pine, who had previously helped Moore get released on a 15
promise to appear, and wanted to ask Pine to help him again. 16
Although (as the district court found) Pine turned the 17
discussion to the whereabouts of the gun, Moore, 2007 WL 18
708789, at *3, Pine was not involved in the investigation of 19
Moore, id. at *2, and Pine did not know that Moore was in 20
the lockup before Moore beckoned to him. Id. In 21
combination, these facts suggest that, although Pine 22

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6 Both interviews took place in the police station; but
the environment was significantly different. Moore’s
encounter with Pine, which began as a voluntary conversation
after Moore initiated contact, was not “inquisitorial,”
Capers, 627 F.3d at 483, while the second interview was
routine and systematic.
26
questioned Moore about the location of the gun and the 1
district court suppressed Moore’s response, Pine did not 2
initiate this questioning as part of a two-step 3
interrogation. 6
4
4. Continuity of personnel. There was little 5
“continuity of police personnel” involved in the two 6
interviews. See Seibert, 542 U.S. at 615. In Seibert, the 7
same officer did the questioning both times. Id. at 605, 8
616. Similarly, the lead postal investigator who set up the 9
sting operation in Capers did the questioning before and 10
then again after the defendant had been advised of his 11
rights. 627 F.3d at 473, 483. Here, Moore was questioned 12
first by Pine and later by Detectives Weisgerber and Murray. 13
The detectives were not present at the initial questioning; 14
and Pine was not present when the detectives asked the 15
questions. Although Pine called over Agent Campanell during 16
his brief interaction with Moore, and Campanell was also 17
present at Moore’s interrogation by the detectives, 18
Campanell had little, if any, role in questioning Moore. 19

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27
5. Continuity of the questioning. Approximately 90 1
minutes elapsed between Pine’s encounter with Moore and the 2
detectives’ interrogation of him. In that interval, the 3
officers left the station to retrieve the gun. The 90- 4
minute interval was enough time for Moore to have reasonably 5
believed that the second interrogation was not merely a 6
continuation of the first. 7
In Capers, a 90-minute break between questioning was 8
insufficient. 627 F.3d at 484. But there, both encounters 9
were inquisitorial and conducted by the same inspector, who 10
was leading the investigation and had planned the sting 11
operation. See id. at 483-84. Moreover, in Capers, “the 12
latter session was ‘essentially a cross-examination using 13
information gained during the first round of 14
interrogation.’” Id. at 484 (quoting Carter, 489 F.3d at 15
536). Here, the second interview was not treated as a 16
continuation of the first, see Seibert, 542 U.S. at 615, nor 17
did the investigators use the information obtained from 18
Pine’s questioning to cross-examine Moore or compel him to 19
answer due to the weight of an earlier admission, id. at 621 20
(Kennedy, J., concurring). 21
22

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7 This is so even though we “presume the privilege
against compulsory self-incrimination ha[d] not been
intelligently exercised” by Moore when he spoke to Pine
because Moore had not been advised of his rights. Elstad,
470 U.S. at 310.
28
Moore had a 90-minute break between the two encounters, 1
which differed in every material respect. The break in 2
momentum allowed Moore to appreciate that he retained the 3
right to remain silent. See Seibert, 542 U.S. at 616-17; 4
see also United States v. McConer, 530 F.3d 484, 498 (6th 5
Cir. 2008) (describing a reasonable suspect’s belief that he 6
or she retained a choice to remain silent as “the factor 7
primarily relied upon by the Seibert plurality”). 8
Based on the totality of the record here, the 9
government has met its burden of demonstrating that it did 10
not engage in a deliberate two-step process to undermine 11
Moore’s Fifth Amendment rights. Therefore, this case is 12
controlled by Elstad, not Seibert. 13
Under Elstad, the dispositive inquiry is whether the 14
statements were provided voluntarily and free of coercion. 15
470 U.S. at 318. Moore does not contend -- nor could he -- 16
that his initial statement to Pine was coerced or otherwise 17
involuntary. 7
18
19

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29
Nor can there be doubt that Moore’s later statement was 1
voluntary. The circumstances of his questioning “contain no 2
traces of the ‘brutality, [p]sychological duress, threats, 3
[or] unduly prolonged interrogation’ that courts have 4
previously found when they have concluded that statements 5
were involuntarily made.” Verdugo, 617 F.3d at 575 (quoting 6
Jackson, 608 F.3d at 102-03) (alterations in original). 7
Moore was advised of his rights before the later 8
interrogation, and he agreed (orally and in writing) to 9
waive them. There is no dispute that he was fully advised 10
of his rights and that he knowingly and voluntarily waived 11
them. See Elstad, 470 U.S. at 314-15; Carter, 489 F.3d at 12
536-37. Moore’s willingness to talk with the police even 13
after he was informed of his rights is itself “highly 14
probative.” Elstad, 470 U.S. at 318. Based on these facts, 15
it is clear Moore knowingly and intelligently waived his 16
right to remain silent. Because “[a] subsequent 17
administration of Miranda warnings . . . ordinarily should 18
suffice to remove the conditions that precluded admission of 19
the earlier [unwarned] statement,” id. at 314, and Moore’s 20
statements to the authorities were voluntary, the district 21
court properly denied Moore’s suppression motion as to 22
Moore’s post-warning statement to the detectives. 23

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30
II. 1
Moore’s second argument for suppression -- that his 2
post-arrest questioning violated his Sixth Amendment right 3
to counsel -- fares no better. The Sixth Amendment 4
provides: “In all criminal prosecutions, the accused shall 5
enjoy the right . . . to have the Assistance of Counsel for 6
his defence.” U.S. Const. amend. VI. The district court 7
concluded that Moore’s Sixth Amendment right had not yet 8
attached because the state prosecution had not been 9
initiated, and (independently) that the Sixth Amendment did 10
not attach to the federal gun possession charge because the 11
Sixth Amendment is offense specific and the gun-possession 12
prosecution had not yet been initiated. We agree on both 13
scores. 14
15
A. 16
The Sixth Amendment is concerned with the assistance of 17
counsel in “criminal prosecutions.” U.S. Const. amend. VI. 18
Accordingly, the right to counsel does not attach until the 19
prosecution is initiated. If, as true at the time of 20
Moore’s questioning here, no formal charging instrument has 21
yet been filed, the right to counsel generally attaches “at 22

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31
the first appearance [by the accused] before a judicial 1
officer at which a defendant is told of the formal 2
accusation against him and restrictions are imposed on his 3
liberty.” Rothgery v. Gillespie Cnty., 554 U.S. 191, 194 4
(2008) (citing Michigan v. Jackson, 475 U.S. 625, 629 n.3 5
(1986), and Brewer v. Williams, 430 U.S. 387, 398-99 6
(1977)). Absent a formal charge, arrest on a warrant, even 7
one issued pursuant to a criminal complaint sworn out by 8
prosecutors, is insufficient prior to the initial appearance 9
before a judicial officer. See United States v. Duvall, 537 10
F.2d 15, 21-22 (2d Cir. 1976) (Friendly, J.). It is only at 11
that point that “the government has committed itself to 12
prosecute” that “the adverse positions of government and 13
defendant have solidified” and the accused “finds himself 14
faced with the prosecutorial forces of organized society, 15
and immersed in the intricacies of substantive and 16
procedural criminal law.” Rothgery, 554 U.S. at 198 17
(internal quotation marks omitted). 18
Moore was questioned before he was arraigned. He had 19
been arrested the day after a state prosecutor presented an 20
application for an arrest warrant (with attached criminal 21
information) to a superior court judge. Once Moore was 22

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32
arrested, he remained in lockup where he had the 1
conversation with Pine and then was moved to an 2
interrogation room (after the gun was located) and 3
questioned by the detectives and Agent Campanell. Moore was 4
then arraigned the following day. 5
Moore argues that the line of cases fixing the 6
attachment of the Sixth Amendment at arraignment are 7
inapplicable here because the police unnecessarily delayed 8
bringing him to court. But, as the district court found as 9
fact, there was no attempt by the police to intentionally 10
keep Moore from being arraigned. Moore, 2007 WL 708789, at 11
*2 (finding “no evidence” that anyone asked Officer 12
Zavodjancik to refrain from taking Moore to court “nor any 13
evidence” suggesting that Zavodjancik “would engage in such 14
a subterfuge.”). This finding is reviewed for clear error, 15
Carter, 489 F.3d at 534, and Moore has failed to show error. 16
Moore also argues that the Sixth Amendment attached 17
even before his arrest because the assistant state’s 18
attorney obtained the arrest warrant by presenting the 19
superior court judge with an information and an application 20
for an arrest warrant. But the Connecticut Supreme Court, 21
in State v. Pierre, 890 A.2d 474 (Conn. 2006), held that an 22

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33
information attached to an application for an arrest warrant 1
does not represent a commitment to prosecute, id. at 506- 2
508; rather, that commitment is made only when the state -- 3
following the defendant’s arrest -- files the information 4
and arrest warrant with the court at the defendant’s 5
arraignment, id. at 508. 6
Moore attempts to distinguish Pierre by drawing a 7
distinction between the “signing” of the information by 8
prosecutors in Pierre, and the “filing” of that information 9
with the court. But Pierre expressly stated that (as here) 10
the arrest warrant application approved by the superior 11
court included an attached information signed by a state’s 12
attorney. 890 A.2d at 504. Pierre held that “it was not 13
until the entire arrest warrant, with the attached signed 14
information, was filed with the court at arraignment that 15
the document became an information within [S]ixth 16
[A]mendment jurisprudence, thus triggering the defendant’s 17
constitutional right to counsel.” Id. (emphasis added). 18
Like the sworn complaint in Duvall and the information in 19
Pierre, the information in this case initially “function[ed] 20
. . . as a basis for an application for an arrest warrant,” 21
Duvall, 537 F.2d at 22 (internal quotation marks omitted) -- 22

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8 The district court’s ruling was based on Connecticut
precedents on this issue as they existed in 2004, prior to
the state Supreme Court’s decision in Pierre. See United
States v. Mills, No. 03-32, 2004 WL 57282, at *2 (D. Conn.
Jan. 8, 2004).
34
“a prelude to a criminal prosecution . . . rather than the 1
initiation of an adversarial judicial proceeding in its own 2
right,” Pierre, 890 A.2d at 508. 3
The precedents of this Court cited by Moore are not to 4
the contrary. In United States v. Mills, 412 F.3d 325, 328 5
(2d Cir. 2005), we assumed that the right to counsel 6
attached before a defendant’s first appearance before a 7
judicial officer because, “[f]or the purposes of th[at] 8
appeal, the government d[id] not challenge the District 9
Court’s determination that the police officers violated 10
Mills’s right to counsel as to the state charges” by 11
interrogating him after he was charged but prior to his 12
arraignment. Accord id. at 326. 8
13
In United States v. Worjloh, 546 F.3d 104, 108 (2d Cir. 14
2008) (per curiam), the defendant also relied on Mills, and 15
we made clear that such reliance was misplaced because Mills 16
proceeded based on the government’s concession. 17
Accordingly, Moore’s Sixth Amendment right to counsel 18
had not attached before he was interrogated, and the 19

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35
district court correctly denied his motion to suppress on 1
that basis. 2
3
B. 4
Independently, Moore’s argument fails because even if 5
his right to counsel had attached to the state charges, it 6
had not attached to the federal charge for which he pleaded 7
guilty below. 8
“[T]he Sixth Amendment right is ‘offense specific,’” 9
meaning that even when the right to counsel attaches for one 10
offense, that does not mean that the defendant has a right 11
to counsel for all ongoing criminal investigations. Texas 12
v. Cobb, 532 U.S. 162, 164 (2001) (quoting McNeil v. 13
Wisconsin, 501 U.S. 171 (1991)). “[T]he definition of an 14
‘offense,’” however, “is not necessarily limited to the four 15
corners of a charging instrument.” Id. at 173. Instead, 16
“‘where the same act or transaction constitutes a violation 17
of two distinct statutory provisions, the test to be applied 18
to determine whether there are two offenses or only one, is 19
whether each provision requires proof of a fact which the 20
other does not.’” Id. (quoting Blockburger v. United 21

-- 35 of 38 --

9 Blockburger defined the term “offense” for the
purposes of the Fifth Amendment’s protection against double
jeopardy. Cobb applied Blockburger’s definition in the
right-to-counsel context under the Sixth Amendment. Cobb,
532 U.S. at 173 (“We see no constitutional difference
between the meaning of the term ‘offense’ in the contexts of
double jeopardy and of the right to counsel.”).
36
States, 284 U.S. 299, 304 (1932)). 9
1
Moore was charged with (and pleaded guilty to) the 2
federal crime of being a felon in possession of a firearm. 3
The elements of such an offense are (1) that the defendant 4
is a felon, (2) who possesses a firearm or ammunition, (3) 5
which has been shipped or transported in interstate 6
commerce. 18 U.S.C. § 922(g). Moore was charged with 7
various state crimes including (1) two counts of attempt to 8
commit felony murder; (2) two counts of criminal use of a 9
firearm; (3) two counts of attempt to commit first degree 10
robbery; (4) two counts of conspiracy to commit first degree 11
robbery; (5) first degree reckless endangerment; (6) robbery 12
involving an occupied motor vehicle; and (7) third degree 13
assault. The only one of those offenses that even arguably 14
overlaps with the federal charge is criminal use of a 15
firearm under Conn. Gen. Stat. § 53a-216(a). The elements 16
of that crime are (1) commission of a felony, (2) in which 17
the defendant uses or threatens to use a firearm. Id. The 18

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37
federal charge has the added element that the defendant must 1
be a felon, and one element of the state offense (that is 2
missing from the federal statute) is that the defendant must 3
use or threaten to use the firearm in the commission of a 4
felony. Accordingly, under Blockburger, they are separate 5
offenses. 6
Moore argues the offenses are the same because Moore 7
received an increased sentence because he “used or possessed 8
a[] firearm . . . in connection with another felony offense 9
. . . .” U.S.S.G. § 2K2.1(b)(6). 10
According to Moore’s brief, when the Guidelines are “an 11
integral component of the federal charge . . . , the state 12
statute can be seen as a lesser included offense of the 13
federal statute[] since it requires proof that the defendant 14
had used a firearm in committing a felony . . . .” Moore 15
does not explain, nor is it readily apparent, why the 16
Guidelines should be considered an integral component of a 17
federal offense. Moreover, any such argument is refuted by 18
the offense-specific, Sixth Amendment jurisprudence, which 19
determines whether two offenses overlap based on the 20
elements of the offenses and whether there are any elements 21
present in one of the offenses but not the other. See Cobb, 22

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38
532 U.S. at 173; see also Blockburger, 284 U.S. at 304. 1
Sentencing enhancements are separate from the offense and 2
related conduct, which is why a defendant can receive an 3
enhancement as to one offense based on particular conduct 4
and then be prosecuted separately based on that same 5
conduct. See Witte v. United States, 515 U.S. 389, 399-404 6
(1995); United States v. Grisanti, 116 F.3d 984, 987-88 (2d 7
Cir. 1997). 8
Because the Sixth Amendment is offense specific and the 9
state and federal offenses charged against Moore are 10
distinct offenses under the Sixth Amendment, Moore’s Sixth 11
Amendment right to counsel was not violated by his post- 12
arrest questioning. The district court therefore did not 13
err in denying Moore’s motion to suppress for the alleged 14
violation of his Sixth Amendment right to counsel. 15
16
CONCLUSION 17
We have carefully considered all of Moore’s remaining 18
arguments and find them to be without merit. Accordingly, 19
the judgment of the district court is affirmed. 20

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