                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA ,              No. 11-30107
                Plaintiff-Appellee,
                                           D.C. No.
                v.                      3:09-cr-00001-
                                            TMB-1
MICHAEL D. BARNES,
             Defendant-Appellant.
                                          OPINION


      Appeal from the United States District Court
               for the District of Alaska
     Timothy M. Burgess, District Judge, Presiding

                Argued and Submitted
         August 28, 2012—Anchorage, Alaska

                 Filed April 18, 2013

Before: Michael Daly Hawkins, M. Margaret McKeown,
          and Carlos T. Bea, Circuit Judges.

                 Per Curiam Opinion
2                  UNITED STATES V . BARNES

                           SUMMARY*


                           Criminal Law

    The panel reversed a drug conviction in a case in which
the district court denied a motion to suppress statements the
defendant made to FBI agents during a meeting with his
parole officer.

    The panel held that the meeting was a custodial
interrogation, and that the agents engaged in a “two-step
interrogation” prohibited by Missouri v. Seibert, 542 U.S. 600
(2004), deliberately delaying giving Miranda warnings to
induce the defendant’s cooperation in an ongoing
investigation.

    The panel wrote that although the target of the agents’
inquiry was ostensibly another suspect, the questioning
necessarily elicited information that incriminated the
defendant, and that the mid-stream warnings provided after
the defendant incriminated himself were too little, too late.

   The panel concluded that because the confession was
central to the conviction, the error was not harmless.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                UNITED STATES V . BARNES                    3

                        COUNSEL

Darla J. Mondou (argued), Marana, Arizona, for Defendant-
Appellant.

Karen L. Loeffler, United States Attorney, and Erin White
Bradley (argued), Special Assistant United States Attorney,
United States Attorneys’ Office, Anchorage, Alaska, for
Plaintiff-Appellee.


                         OPINION

PER CURIAM:

     Michael D. Barnes appeals his conviction for distribution
of controlled substances in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(B). Reviewing de novo, United States v. Rodgers,
656 F.3d 1023, 1026 (9th Cir. 2011), we consider the denial
of Barnes’s motion to suppress statements he made to Federal
Bureau of Investigation (“FBI”) agents during a meeting with
his parole officer. Because the meeting was a custodial
interrogation, Miranda warnings were required to allow the
prosecution to use Barnes’s statements at trial. Engaging in
a “two-step interrogation” prohibited by Missouri v. Seibert,
542 U.S. 600 (2004) (plurality opinion), the agents
deliberately delayed giving warnings to induce Barnes’s
cooperation in an ongoing investigation. Although the target
of the agents’ inquiry was ostensibly another suspect, the
questioning necessarily elicited information that incriminated
Barnes. The mid-stream warnings provided after Barnes
incriminated himself were too little, too late. The district
court’s failure to suppress the statements was in error. At
trial the confession was central to the conviction. Because
4                  UNITED STATES V . BARNES

the error was not harmless beyond a reasonable doubt, we
reverse Barnes’s conviction.1

                           BACKGROUND

    In 2007, FBI agents were investigating an alleged drug
trafficker named Esthepen Pebenito. FBI Agent John
Eckstein recruited an informant, George Craig, who arranged
to obtain illegal drugs from Barnes at the Anchorage, Alaska
airport for transport to Pebenito in Hawaii. Craig made the
arrangements on a recorded telephone call. The FBI agents
did not make it to the airport in time to either search Craig
before the transaction with Barnes or to monitor the
transaction. When the agents finally arrived, they met with
Craig, who gave them a package of methamphetamine he
allegedly received from Barnes.

    A few months later, at the request of the FBI agents,
Barnes’s parole officer, Andrea Kuckertz, scheduled a
meeting with Barnes. She did not inform Barnes, who was
required by the terms of his parole to attend the meeting, that
FBI agents would be there. Kuckertz normally meets with
parolees at the window to the lobby of her office, without
requiring them to be searched or escorted into the secure area.
However, upon arrival at the parole office, Barnes was
searched and escorted into the interior of the building through
an electronically locked door.

   When Barnes arrived at Kuckertz’s office, he found two
FBI agents waiting to question him about the transaction with
Craig. The agents did not immediately advise Barnes of his

   1
     In light of this reversal, we do not reach Barnes’s appeal of other
claimed errors at trial.
                 UNITED STATES V . BARNES                    5

Miranda rights. Instead, the agents told Barnes that they
knew he had been involved in drug distribution at the
Anchorage airport. Barnes denied the allegations. The
agents then played a portion of one of the recorded phone
calls between Barnes and Craig. After hearing the recording,
Barnes admitted he remembered the transaction with Craig.
Because Agent Eckstein thought Barnes “looked like he was
going to continue talking,” the FBI agents advised Barnes of
his Miranda rights. Barnes waived his rights, and then
confessed his involvement in the drug transaction. The
indictment on drug charges soon followed.

    Before trial, Barnes filed a motion to suppress his
statements and the tangible evidence of the drugs Craig
delivered to the FBI agents. The district court found that
Barnes was subject to interrogation before the agents
administered Miranda warnings and that the agents should
have known their questions could elicit an incriminating
response. Nonetheless, the district court found that Barnes
was not in custody when this pre-Miranda warning
interrogation occurred and that the post-Miranda
incriminating statements were voluntarily made after the
warnings were administered.

                          ANALYSIS

    Our initial consideration of the Miranda issue rests on the
resolution of two questions: whether the interrogation was
custodial and whether the interrogation was a “deliberate two-
step” approach in contravention of Missouri v. Seibert. If the
answers are in the affirmative, we must then determine the
effectiveness of mid-stream warnings. If the mid-stream
warnings were ineffective, we must determine whether the
erroneous admission of the inculpatory statements was
6                   UNITED STATES V . BARNES

harmless. United States v. Williams, 435 F.3d 1148, 1161–62
(9th Cir. 2006).2

        I. CUSTODY

     The touchstone for Miranda warnings is whether the
suspect is in custody when interrogated. Rhode Island v.
Innis, 446 U.S. 291, 300 (1980). To determine whether an
individual was in custody, we must decide whether a
reasonable person in the circumstances would have believed
he could freely walk away from the interrogators. See United
States v. Kim, 292 F.3d 969, 973–74 (9th Cir. 2002). The
following factors are pertinent in assessing the custody
question: “(1) the language used to summon the individual;
(2) the extent to which the defendant is confronted with
evidence of guilt; (3) the physical surroundings of the
interrogation; (4) the duration of the detention; and (5) the
degree of pressure applied to detain the individual.” Id. at
974 (internal quotation marks and citations omitted). The
first four factors weigh heavily in favor of determining that
Barnes was in custody.




    2
   Apart from the issue of custodial interrogation, Barnes also argues that
the terms of his parole created a “penalty situation” in which he was
required to cooperate with the agents and truthfully answer inquiries,
thereby incriminating himself, or face revocation of his parole. Because
Barnes was subject to custodial interrogation— rather than merely
questioned in a probationary setting— and the resulting statements are
inadmissible, we do not resolve whether the terms of his parole created a
penalty situation. See Minnesota v. Murphy, 465 U.S. 420, 429 n.5 (1984)
(addressing a penalty situation but noting that “[a] different question
would be presented if [the probationer] had been interviewed . . . by the
police themselves in a custodial setting”).
                UNITED STATES V . BARNES                    7

    To begin, Barnes did not appear voluntarily but rather was
told to appear for a meeting with his parole officer under
threat of revocation of parole. Cf. Oregon v. Mathiason,
429 U.S. 492, 495 (1977). The meeting was not his regularly
scheduled weekly meeting on Thursday afternoons but was
set for a Wednesday. Kuckertz misrepresented the purpose
of the meeting and did not respond when Barnes called
seeking to reschedule. Kuckertz acknowledged that it was
unusual for her to see Barnes on a day other than Thursday,
and that when she opted not to return his calls, she knew that
Barnes was aware that failure to appear at the meeting would
be a violation of his parole.

    The FBI agents directly confronted Barnes with evidence
of guilt before administering the Miranda warnings. They
spent several minutes questioning Barnes, told him they had
evidence he had met Craig at the airport, and played a tape
recording of an incriminating phone call between Barnes and
Craig.

    This confrontation occurred with three law enforcement
officials in a small office, behind a closed door, inside the
Alaska Department of Corrections Probation building.
Normally, Barnes’s parole meetings occurred through a
window in the lobby, but on this occasion he was searched
and escorted through an electronically locked door where he
was surprised by the FBI agents waiting to question him.

    Nor was the approximately two hour meeting a typical
parole check in. Normally Kuckertz meets with her parolees
only briefly. Although the Miranda warnings were given
after about ten to twenty minutes, the meeting was anything
but a run-of-the-mill parole update. See Kim, 292 F.3d at 977
8                UNITED STATES V . BARNES

(finding an interrogation lasting approximately one hour to be
suggestive of custodial circumstances).

    The fifth factor, the degree of pressure applied to detain
Barnes, is neutral at best. Although Barnes was in a police-
dominated, confined environment in which his presence was
mandated by his parole terms, he was not handcuffed,
arrested, or physically intimidated in any way. Even so, the
scenario was not without pressure resulting from a
combination of the surroundings and circumstances
encompassed by the other factors. Taking into consideration
all of the factors, particularly the role of the FBI agents and
the location and duration of the interrogation, we hold that a
reasonable person in Barnes’s circumstances would not have
felt free to leave. Thus, Barnes was in custody during the
interrogation.

    II. DELIBERATE      DELAY    IN   PROVIDING     MIRANDA
       WARNINGS


    When a law enforcement officer interrogates a suspect in
custody but does not warn the suspect of his Miranda rights
until after he has made an inculpatory statement, the inquiry
is whether the officer engaged in “a deliberate two-step
interrogation.” Williams, 435 F.3d at 1150. Such an
interrogation occurs when an officer deliberately questions
the suspect without Miranda warnings, obtains a confession
or inculpatory admission, offers mid-stream warnings after
the suspect has admitted involvement or guilt, and then has
the suspect repeat his confession or elaborate on his earlier
statements. Id. at 1159–60. If the FBI agents “deliberately
employed the two-step strategy,” we then “evaluate the
effectiveness of the midstream Miranda warning to determine
                UNITED STATES V . BARNES                    9

whether the postwarning statement is admissible.” Id. at
1160 (citing Seibert, 542 U.S. at 615).

   The evidence reflects that the agents deliberately
employed the two-step interrogation tactic. In reaching this
conclusion, we “consider whether objective evidence and any
available subjective evidence, such as an [agent’s] testimony,
support an inference that the two-step interrogation procedure
was used to undermine the Miranda warning.” Id. at 1158.

    Agent Eckstein testified that he was familiar with
Miranda’s requirements, believed Barnes would think he was
not free to leave the meeting, and intended to question Barnes
about his involvement in a crime. He further stated that the
agents played the recorded phone conversation to
demonstrate that they “were investigating [Barnes],” because
“unless he believed that[,] he would not cooperate” with the
agents and “would not talk to [them].” Agent Eckstein
explained that he did not give the warnings at the beginning
of the meeting because he “wanted to allay any concerns
[Barnes] had that he was being arrested that day”:

       A: We could have [Mirandized Barnes at the
       beginning of the meeting], but it’s been my
       experience that . . . when you Mirandize
       somebody . . . they think they’re under arrest
       because they equate being Mirandized with
       being under arrest. And so we were trying to
       convince him that he was not going to be
       arrested that day . . . . So I felt like, well, on
       the one hand we’re saying Mr. Barnes, you’re
       not under arrest, we’re here to get your
       cooperation . . . . [H]ad he just walked in and
10               UNITED STATES V . BARNES

        we immediately Mirandized him, it would’ve
        . . . seemed to him that he was under arrest.

Whether the agents planned to arrest Barnes forthwith or to
turn him into a cooperating witness is not the bellwether for
administering Miranda warnings. The simple reason the
agents delayed was so that Barnes would talk to them about
his role in the drug transaction. It is the agents’ interrogation
of Barnes to this end in a custodial setting that triggers the
need for Miranda warnings, where, as here, the suspect’s
statements are later proffered against him at trial.

    The agents made a deliberate decision not to warn first,
but instead to confront Barnes with accusations of guilt and
the tape recording. Agent Eckstein’s testimony was clear on
this point:

        Q: Okay. But you didn’t . . . confront him
        with something to the effect of we know you
        know about crimes that others committed, did
        you? In fact, . . . you confronted him with we
        know you committed a crime?

        A: Initially. And the plan certainly was after
        we talked to him about that and he agreed to
        cooperate[,] we were going to then question
        him about his associates. (Emphasis added.)

Agent Eckstein feared that if Barnes heard the warnings, he
would be less willing to talk about the suspect that the agents
were targeting. That the ultimate goal of the interrogation
was apparently to gather information to charge Pebenito,
rather than to charge Barnes, does not sanction the agents’
decision to delay Miranda warnings. The two-step tactic
                   UNITED STATES V . BARNES                 11

necessarily elicited inculpatory information about Barnes’s
transactions with Pebenito, and thus necessarily inculpated
Barnes. Indeed, at one point, the agents told Barnes he could
be prosecuted and that it was not their decision whether he
would be charged. The agents deliberately withheld the
warnings to prevent Barnes from being aware that he had
entered a phase of the adversary system, in direct
contravention of one of Miranda’s key goals. See Miranda
v. Arizona, 384 U.S. 436, 469 (1966).

   III.      EFFECTIVENESS      OF   MID -STREAM     MIRANDA
             WARNINGS


   Williams counsels us to evaluate the mid-stream warnings
under the following framework:

          (1) [T]he 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 continuous with the
          first[,] and (6) whether any curative measures
          were taken.

Williams, 435 F.3d at 1160.

    The agents’ initial round of interrogation was specific and
complete. Their questions and accusations touched upon the
timing, location, and drugs involved in the disputed
transaction, including Barnes’s role in the transaction.
Similarly, Barnes’s pre-warning responses were specific.
12              UNITED STATES V . BARNES

According to Kuckertz and Agent Christopher Jones, Barnes
admitted involvement in the Anchorage transaction prior to
the warnings. That admission should have been no surprise
to the FBI agents given the nature of the questioning and the
use of the recorded phone call.

    The subject of the pre- and post-warning confession
differed only slightly with respect to the transaction at the
Anchorage airport. Pre-warning, Barnes admitted to his
involvement in the Anchorage transaction but did not
describe it in detail. Post-warning, he elaborated on his
relationship with Pebenito and how the two had dealt drugs,
mentioned several other drug transactions, and described the
Anchorage transaction in greater detail.

   There was no break or dividing point in the interrogation.
Barnes was interrogated in the same place before and after the
warnings. After Barnes waived his rights, the agents
immediately resumed the interrogation and continued
questioning Barnes for approximately two hours. The agents
apparently stopped only long enough to read Barnes the
“advice of rights” form and allow him to waive his rights.

    The agents treated the second round of interrogation as
continuous with the first—the second round was not a distinct
phase to be distinguished from the initial; it was a mere
continuation of the interrogation already underway. The
process was a seamless one, with the same agents
interrogating Barnes before and after the warnings.
Kuckertz’s testimony highlighted the unbroken stream of
testimony:

       A: The agents started explaining why they
       were there and that they had information that
                  UNITED STATES V . BARNES                      13

        [Barnes] was involved with drug dealing.
        [Barnes] initially denied that and then they
        played a recording that they had in which you
        could hear him speaking . . . . And he then
        admitted that he was involved in that incident
        that they were questioning him about. And at
        that point they Mirandized him[,] and he was
        willing to further discuss what had happened.
        (Emphasis added.)

This timing particularly reduces the impact of the recitation
of constitutional rights. See Seibert, 542 U.S. at 613 (“Upon
hearing warnings only in the aftermath of interrogation and
just after making a confession, a suspect would hardly think
he had a genuine right to remain silent . . . .”). It is clear that
Barnes admitted his involvement in the crime before he
received the warnings and that his post-warning confession
was merely an elaboration on his pre-warning admission of
guilt.

     Finally, the agents took no curative measures to mitigate
their error. They did not, for example, take a substantial time
break in the interrogation or warn Barnes that what he had
said before the warnings could not be used against him. See
id. at 616. (“When the same officer who had conducted the
first phase recited the Miranda warnings, he said nothing to
counter the probable misimpression that the advice that
anything Seibert said could be used against her also applied
to the details of the inculpatory statement previously elicited.
In particular, the police did not advise that her prior statement
could not be used.”); id. at 622 (Kennedy, J., concurring in
the judgment) (“Alternatively, an additional warning that
explains the likely inadmissibility of the prewarning custodial
statement may be sufficient.”); see also Williams, 435 F.3d at
14              UNITED STATES V . BARNES

1161 (recognizing that a break in time between two
interrogations could serve as an appropriate curative
measure). Taken together, these factors demonstrate that the
warnings Barnes received were not effective and that his
post-warning confession should have been suppressed.

     IV.   HARMLESS ERROR

    The final issue we consider is the effect of Barnes’s
admissions on the verdict.           “On direct review, the
government’s commission of a constitutional error requires
reversal of a conviction unless the government proves beyond
a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” Williams, 435 F.3d at
1162 (internal quotation marks and citation omitted). The
government does not argue that if the confession was
improperly admitted the error was harmless. Rightly so: “A
confession is like no other evidence. Indeed, the defendant’s
own confession is probably the most probative and damaging
evidence that can be admitted against him.” Arizona v.
Fulminante, 499 U.S. 279, 296 (1991) (internal quotation
marks and citation omitted). Admission of a confession “will
seldom be harmless.” Williams, 435 F.3d at 1162. Here, the
confession went to the heart of the case. Barnes was charged
with and convicted of methamphetamine distribution at the
Anchorage airport in May 2007; he admitted that precise
crime both before and after he received the Miranda
warnings. The erroneous admission of the confession was not
harmless.

     REVERSED.
