                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS January 4, 2011
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

 v.                                                      No. 09-2146
                                               (D.C. No. 1:07-CR-02053-WJ-1)
 ADAN SANCHEZ-GALLEGOS,                                   (D.N.M.)

              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, EBEL and HOLMES, Circuit Judges.


      While each member of this panel provides different reasoning to reach the

result, we affirm Mr. Sanchez-Gallegos’s conviction. Both Judge Holmes and

Chief Judge Briscoe conclude that the district court did not err in admitting Mr.

Sanchez-Gallegos’s initial un-Mirandized incriminating statement, reasoning that

Miranda did not apply because Mr. Sanchez-Gallegos was not in custody when he

made this statement. While Judge Holmes reasons that Mr. Sanchez-Gallegos was

not in custody based on the totality of the circumstances considered in the context



      *
             This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
of a routine fixed border checkpoint as established in United States v. Massie, 65

F.3d 843 (10th Cir. 1995), Chief Judge Briscoe concludes that the encounter with

law enforcement exceeded the parameters of Massie. Nonetheless, Chief Judge

Briscoe reasons that Mr. Sanchez-Gallegos was not in custody based on the

totality of the circumstances. Judge Ebel concludes that the district court erred in

admitting Mr. Sanchez-Gallegos’s initial incriminating statement, reasoning that

Mr. Sanchez-Gallegos was in custody when this statement was made based on the

totality of the circumstances. However, Judge Ebel reasons that this error was

harmless because Mr. Sanchez-Gallegos’s extensive and detailed post-Miranda

statements were admissible and vastly outweighed the impact of the initial un-

Mirandized incriminating statement. Accordingly, for the foregoing reasons, we

AFFIRM Mr. Sanchez-Gallegos’s conviction.



                                       ENTERED FOR THE COURT



                                       PER CURIAM




                                         -2-
09-2146, United States v. Sanchez-Gallegos

HOLMES, J., concurring.

      The defendant-appellant, Adan Sanchez-Gallegos, was indicted on one count

of conspiracy to transport illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii).

Prior to trial, Mr. Sanchez-Gallegos filed two motions to suppress—one seeking to

suppress physical evidence found in his vehicle and on his person, and the other

seeking to suppress the statements he made to law enforcement officers. The district

court denied both motions, and a jury found Mr. Sanchez-Gallegos guilty of the

charged conspiracy offense. Mr. Sanchez-Gallegos appeals his conviction, arguing,

inter alia, that the district court erred in denying his motion to suppress his initial

allegedly incriminatory statement to law enforcement. Exercising our jurisdiction

pursuant to 28 U.S.C. § 1291, we AFFIRM his conviction.

                                 BACKGROUND 1

      Around 1:00 p.m. on December 10, 2005, a Chevrolet Suburban vehicle

bearing a California license plate pulled into a fixed Border Patrol checkpoint on

I-25 near Radium Springs, New Mexico. Border Patrol Agent Gonzalez was

conducting primary inspections, and he approached the vehicle and introduced

himself. He asked in English about the driver’s citizenship, to which the driver

(later determined to be Mr. Sanchez-Gallegos) responded that he was a U.S.



      1
             We construe all facts in the light most favorable to the government as
the prevailing party. United States v. Salazar, 609 F.3d 1059, 1063 (10th Cir.
2010).
citizen. In conducting the primary inspection, Agent Gonzalez walked around the

vehicle and noted the California license plate. Agent Gonzalez testified that, in

his experience, it was unusual to see California license plates at an I-25

checkpoint because they were more likely to be seen along the east-west corridor

of I-10. Agent Gonzalez returned to the driver and inquired about his travel

plans. The driver had difficulty responding, so Agent Gonzalez switched to

Spanish. 2 Agent Gonzalez repeated his initial inquiry about the driver’s

citizenship, and this time the driver responded that he was a legal permanent

resident from Mexico. Agent Gonzalez asked to see his immigration papers, and

the driver provided a copy—rather than the original—of his Permanent Resident

card, which identified him as Adan Sanchez-Gallegos. In response to questions

about ownership of the vehicle and his travel plans, Mr. Sanchez-Gallegos

explained that he had rented the Suburban, and that he was headed from Anthony,

New Mexico, to Albuquerque, en route to Chicago. Agent Gonzalez testified that

Mr. Sanchez-Gallegos appeared nervous during this encounter as he was avoiding

eye contact, gripping the steering wheel, and talking in a nervous tone.

      Agent Gonzalez asked for permission to inspect the vehicle further, and Mr.

Sanchez-Gallegos gave his consent. Agent Gonzalez then had Mr.

Sanchez-Gallegos move the Suburban to the secondary inspection area and


      2
            The rest of Mr. Sanchez-Gallegos’s encounter with the Border Patrol
agents was conducted in Spanish.

                                         -2-
confirmed that he had Mr. Sanchez-Gallegos’s consent to inspect the vehicle. At

this point, another Border Patrol agent—a trained canine handler—approached the

vehicle. Mr. Sanchez-Gallegos was asked to stand aside while the canine search

was performed. Shortly thereafter, Agent Gonzalez was informed that the canine

had alerted to Mr. Sanchez-Gallegos’s vehicle.

      Based on this alert, Agent Gonzalez asked Mr. Sanchez-Gallegos to come

into the checkpoint office so that the vehicle could be inspected further. Before

allowing him to enter the office, Agent Gonzalez asked Mr. Sanchez-Gallegos for

permission to conduct a pat-down search of him as a safety precaution, and Mr.

Sanchez-Gallegos consented to the search. While conducting this search, Agent

Gonzalez felt a large bulge, which Mr. Sanchez-Gallegos explained was his

money for purchasing a trailer or mobile home. Mr. Sanchez-Gallegos showed

Agent Gonzalez the money ($7915 in United States currency plus 1800 Mexican

Pesos).

      Agent Gonzalez then “went back” to his “primary duties to conduct more

immigration inspections while the [Border Patrol] agents inspected the vehicle.”

R., Vol. III, at 23 (Suppression Hr’g Tr., dated Dec. 21, 2007). Agent Gonzalez

subsequently asked for and received additional identification from Mr.

Sanchez-Gallegos and busied himself “run[ning] checks” of Mr. Sanchez-

Gallegos’s immigration and criminal histories. Id. at 25. The Border Patrol

agents searching the interior of the Suburban discovered a duffle bag containing

                                        -3-
five Mexican birth certificates and a “Certificate of Good Conduct,” which is a

document issued by the Mexican government.

      Agent Gonzalez testified that upon discovering these documents, the agents

were concerned that these documents belonged to six children who were being

smuggled through the desert into the United States. Agent Gonzalez, with another

Border Patrol agent observing, asked Mr. Sanchez-Gallegos about the source and

purpose of the documents and the cash. Mr. Sanchez-Gallegos claimed that he

was unaware of the documents and provided no further explanation for the cash.

      Once the search of the vehicle was completed, Agent Gonzalez returned to

Mr. Sanchez-Gallegos and expressed his suspicion that Mr. Sanchez-Gallegos was

involved in smuggling children through the desert. In response, Mr. Sanchez-

Gallegos informed Agent Gonzalez that “he had that money as part of a payment

to take some children to . . . Chicago.” Id. at 29. At the time that he gave this

statement, Mr. Sanchez-Gallegos had been at the checkpoint for approximately

forty to fifty minutes.

      Following this admission, Agent Gonzalez and the other Border Patrol

agent read Mr. Sanchez-Gallegos a Miranda warning in Spanish and presented an

Advice of Rights form to him that was written in Spanish. Agent Gonzalez read

the form aloud, and Mr. Sanchez-Gallegos signed the form. Mr.

Sanchez-Gallegos then informed Agent Gonzalez that the children were not in the

desert, but rather were in Albuquerque with “Victor.” Mr. Sanchez-Gallegos was

                                          -4-
to pick them up from “Victor” and transport them to their family in Chicago.

Agent Gonzalez then called the duty agent with Immigration and Customs

Enforcement (“ICE”), Agent Carroll, who was unable to come immediately to the

checkpoint. However, Agent Carroll promised to arrange for an ICE agent from

Albuquerque to call Agent Gonzalez.

      At approximately 2:20 p.m., Agent Gonzalez received a call from

Albuquerque ICE Agent Franco. Agent Franco asked Agent Gonzalez to see if

Mr. Sanchez-Gonzalez would contact “Victor” in an effort to locate the children.

He agreed to do so, and during this call, “Victor” explained that the children

“were going to be at the Motel 6 near [the] Cesar Chavez exit on I-25.” Id. at 36.

Based on this information, Agent Gonzalez called the motel and asked if a man

had checked in with six children, but at that time, no one matching that

description had checked in.

      At approximately 4:30 p.m., Agent Carroll arrived at the checkpoint. He

briefly discussed the situation with Agent Gonzalez, and then interviewed Mr.

Sanchez-Gallegos after again obtaining a waiver of his Miranda rights. Mr.

Sanchez-Gallegos explained that he had flown from Chicago to Albuquerque

several days prior, rented the Suburban, and spent several days looking for a

trailer or mobile home to purchase. After a day or two, he drove south to

Anthony, New Mexico, where he met his friend, “Victor.” He took a day trip to

Juarez, Mexico, and, while there, he received a phone call from “Victor” asking if

                                         -5-
he would smuggle some children, who were illegally present in the United States,

from Albuquerque to Chicago, and he agreed to do so. Upon returning to

Anthony, Mr. Sanchez-Gonzalez received the children’s documentation from

“Victor,” then left Anthony on December 10, 2005, to pick up the children in

Albuquerque.

       Meanwhile, Agent Franco set up surveillance in Albuquerque on the Motel

6. At approximately 5:00 p.m., she received information that “Victor” had

checked in with six children and three other adults. The agents knocked on the

doors of his rooms. In one room, the agents found an adult male, later identified

as Victor Manuel Cardoza-Avitia, Mr. Sanchez-Gallegos’s co-defendant; an adult

female, later identified as Victor’s wife; and six children—the same children

whose documentation had been seized from Mr. Sanchez-Gallegos’s luggage.

Agent Franco then called Agent Carroll to tell him the children had been located.

Subsequently, Mr. Sanchez-Gallegos was indicted for conspiracy to transport

illegal aliens.

       Mr. Sanchez-Gallegos filed two motions to suppress—one seeking to

suppress the documents found in the Suburban and the cash found on his person,

and the other seeking to suppress the statements he made to Agents Gonzalez and

Carroll. Following a hearing, the district court denied both motions, finding that

the agents had reasonable suspicion to direct Mr. Sanchez-Gallegos to the

secondary inspection area, and probable cause to search the interior of his vehicle

                                         -6-
following the dog alert and the discovery of the cash on his person. The district

court noted that Mr. Sanchez-Gallegos consented to the canine search. The

district court found that Mr. Sanchez-Gallegos was not in custody when he made

his initial incriminating statement, and his subsequent statements to Agents

Gonzalez and Carroll were voluntarily and freely made after waiving his Miranda

rights.

          Following the district court’s denial of his motions to suppress, Mr.

Sanchez-Gallegos proceeded to trial and was convicted of one count of conspiracy

to transport illegal aliens. This timely appeal followed.

                                       ANALYSIS

          In his opening appellate brief, Mr. Sanchez-Gallegos argued that the district

court erred by: (1) denying his motion to suppress the Mexican birth certificates

found in his vehicle and the money found on his person; (2) denying his motion to

suppress his initial allegedly incriminatory statement and his subsequent

statements; (3) denying his motion to strike prejudicial surplusage from the

superseding indictment; and (4) admitting a list of telephone numbers as a

recorded recollection under Federal Rule of Evidence 803(5).

          At oral argument, characterizing the other arguments as “silly” and

“clutter,” counsel for Mr. Sanchez-Gallegos 3 narrowed the contentions on appeal


          3
                A prior lawyer for Mr. Sanchez-Gallegos, and not his counsel who
                                                                       (continued...)

                                            -7-
to a single “meritorious” issue—viz., whether the district court should have

suppressed Mr. Sanchez-Gallegos’s first allegedly incriminatory statement 4

because law enforcement failed to inform Mr. Sanchez-Gallegos of his Miranda

rights prior to questioning him. I appreciate defense counsel’s candor in

winnowing the body of issues for our review. However, I ultimately conclude

that the district court did not err in denying Mr. Sanchez-Gallegos’s motion to

suppress his initial statement to Agent Gonzalez because Mr. Sanchez-Gallegos

was not in custody when he made the statement and, therefore, Miranda did not

apply. See United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir. 1993) (“[T]wo

requirements must be met before Miranda is applicable; the suspect must be in

‘custody,’ and the questioning must meet the legal definition of ‘interrogation.’”);

see also United States v. Hudson, 210 F.3d 1184, 1186, 1190–93 (10th Cir. 2000)

(discussing the impact of the unique context of a fixed border checkpoint on the

analysis of the meaning of “custodial” under Miranda).

      “In considering a district court’s denial of a motion to suppress, this court

reviews factual findings for clear error, viewing the evidence in the light most

favorable to the government, and reviews legal conclusions de novo.” United


      3
      (...continued)
appeared at oral argument, prepared his opening appellate brief.
      4
           This first allegedly incriminatory statement was that “he had that
money as part of a payment to take some children to . . . Chicago.” R., Vol. III,
at 29.

                                        -8-
States v. Carbajal-Iriarte, 586 F.3d 795, 799 (10th Cir. 2009). In reviewing the

district court’s decision, “[w]e are permitted to consider evidence introduced at

the suppression hearing, as well as any evidence properly presented at trial.”

United States v. Jones, 523 F.3d 1235, 1239 (10th Cir. 2008) (alteration in

original) (quoting United States v. Harris, 313 F.3d 1228, 1233 (10th Cir. 2002))

(internal quotation marks omitted). “A finding is clearly erroneous only if no

factual support can be found in the record or if it is obvious to this court that an

error has occurred.” United States v. Burson, 531 F.3d 1254, 1256 (10th Cir.

2008) (quoting United States v. Alexander, 447 F.3d 1290, 1293–94 (10th Cir.

2006)) (internal quotation marks omitted). “The ultimate question of whether

Miranda applies, however, is reviewed de novo,” Jones, 523 F.3d at 1239,

because “[l]egal determinations, including . . . whether a defendant was in

custody, are reviewed de novo,” United States v. Lamy, 521 F.3d 1257, 1261

(10th Cir. 2008).

      “It is well established that police officers are not required to administer

Miranda warnings to everyone whom they question.” United States v. Eckhart,

569 F.3d 1263, 1275 (10th Cir. 2009) (quoting Hudson, 210 F.3d at 1190)

(internal quotation marks omitted), cert. denied, 130 S. Ct. 1752 (2010).

“Instead, the protections set out by the Supreme Court in Miranda only apply

when an individual is subject to custodial interrogation.” Id. (quoting United




                                          -9-
States v. Rogers, 391 F.3d 1165, 1169 (10th Cir. 2004)) (internal quotation marks

omitted). We have explained:

             Whether a person is in custody for Miranda purposes depends on
             the type of the encounter with police. Of the three types of
             police-citizen encounters—voluntary cooperation, an
             investigatory detention under Terry v. Ohio, 392 U.S. 1, 88 S. Ct.
             1868, 20 L. Ed. 2d 889 (1968), and a formal arrest—Miranda’s
             custody element is triggered only in situations associated with
             formal arrests. In other words, “[c]ase law is well established
             that a defendant is not in custody under either of the first two
             encounters and therefore Miranda warnings need not usually be
             given.”

Jones, 523 F.3d at 1239 (alteration in original) (quoting United States v. Griffin, 7

F.3d 1512, 1516 (10th Cir. 1993)).

      The Supreme Court explained in Miranda that an individual is “in custody”

if he is “deprived of his freedom of action in any significant way.” Miranda v.

Arizona, 384 U.S. 436, 444 (1966). Determining whether Mr. Sanchez-Gallegos

was in custody for Miranda purposes “flows from our seminal inquiry: ‘whether a

reasonable person in [Mr. Sanchez-Gallegos’s] position would have understood

[his] freedom of action to have been restricted to a degree consistent with formal

arrest.’” Lamy, 521 F.3d at 1263 (second alteration in original) (quoting United

States v. Revels, 510 F.3d 1269, 1275 (10th Cir. 2007)). “We therefore must

determine whether ‘a reasonable [person] in the suspect’s position would have

understood [the] situation . . . as the functional equivalent of formal arrest.’”

United States v. Chee, 514 F.3d 1106, 1112 (10th Cir. 2008) (alterations in


                                          -10-
original) (quoting Berkemer v. McCarty, 468 U.S. 420, 442 (1984)). A reasonable

person “does not have a guilty state of mind and does not have peculiar mental or

emotional conditions that are not apparent to the questioning officer.” Hudson,

210 F.3d at 1190 (quoting United States v. Erving L., 147 F.3d 1240, 1246 (10th

Cir. 1998)) (internal quotation marks omitted).

      This is an objective, fact-intensive inquiry that focuses on the totality of the

circumstances. See id.; see also Jones, 523 F.3d at 1239; Griffin, 7 F.3d at 1518.

“We thus avoid hard line rules and instead allow several non-exhaustive factors to

guide us.” Jones, 523 F.3d at 1240. The relevant factors include: “(1) whether

the circumstances demonstrated a police-dominated atmosphere; (2) whether the

nature and length of the officers’ questioning was accusatory or coercive; and (3)

whether the police made [Mr. Sanchez-Gallegos] aware that [he] was free to

refrain from answering questions, or to otherwise end the interview.” Revels, 510

F.3d at 1275.

      Indications that an atmosphere is police-dominated

             may include whether the suspect was separated from his family
             and isolated in a nonpublic questioning room, whether there was
             the threatening presence of several officers, whether there was
             any display of weapons or physical contact with the suspect, and
             whether the officer’s language and tone indicated that
             compliance might be compelled.

Chee, 514 F.3d at 1113 (citing Griffin, 7 F.3d at 1518–19).




                                         -11-
      “Although these factors are useful, we emphasize that we must look to the

totality of the circumstances and consider the police-citizen encounter as a whole,

rather than picking some facts and ignoring others.” Jones, 523 F.3d at 1240.

      I also must emphasize that context is key in deciding whether Mr. Sanchez-

Gallegos was in custody during his encounter with the Border Patrol agents. The

context here is a fixed border checkpoint. As we explained in Hudson, “[t]he

Supreme Court has concluded that a stop at a fixed border checkpoint constitutes

a Fourth Amendment seizure because a reasonable person would not believe [he]

is free to leave.” 5 210 F.3d at 1190–91 (citing United States v. Martinez-Fuerte,

428 U.S. 543, 556 (1976)). However, “a Fourth Amendment seizure does not

necessarily render a person in custody for purposes of Miranda.” Id. (quoting

United States v. Bengivenga, 845 F.2d 593, 598 (5th Cir. 1988) (en banc))

(internal quotation marks omitted). More specifically, a number of courts,

including our own, have recognized the important distinction between a Fourth

Amendment seizure and Miranda’s custody requirement, and have held that while

a routine stop at a fixed border checkpoint may be a Fourth Amendment seizure,

it is not custodial for Miranda purposes. Id. (citing United States v. Fernandez-




      5
             As long as the border checkpoint stop comports with the
requirements set out by this court in United States v. Massie, 65 F.3d 843, 847–48
(10th Cir. 1995), such a seizure is reasonable and consistent with the dictates of
the Fourth Amendment.

                                        -12-
Ventura, 132 F.3d 844, 846 (1st Cir. 1998), and United States v. Moya, 74 F.3d

1117, 1120 (11th Cir. 1996)).

      The unique context of fixed border checkpoint stops is revealed by the

different legal principles applicable to them. For example, “[a]t a fixed

checkpoint, . . . border patrol agents may stop, briefly detain, and question

individuals without any individualized suspicion that the individuals are engaged

in criminal activity.” Massie, 65 F.3d at 847; accord United States v. Forbes, 528

F.3d 1273, 1277–78 (10th Cir. 2008) (discussing the “well-established principles

applicable to border checkpoints and canine searches”). Such stops must be

“brief and unintrusive” and the questioning “reasonably related” to the duties of

the Border Patrol. Massie, 65 F.3d at 848. “Further detention of an individual

beyond the scope of a routine checkpoint stop must be based upon reasonable

suspicion, consent, or probable cause.” Id. However, “border patrol agents have

virtually unlimited discretion to refer cars to the secondary inspections area,”

Forbes, 528 F.3d at 1277 (quoting United States v. Sanders, 937 F.2d 1495, 1499

(10th Cir. 1991)) (internal quotation marks omitted), and “may make such

referrals without any particularized suspicion of criminal activity,” id.

      In addition, agents are free to conduct canine searches at the border “so

long as the vehicles and their occupants are otherwise lawfully detained at the

time of the inspection.” Id. Canine inspections are permissible in the absence of

individual suspicion and without the consent of the occupants of the vehicle. See

                                         -13-
Massie, 65 F.3d at 848; see also United States v. Williams, 403 F.3d 1203, 1207

(10th Cir. 2005) (“A canine sniff on the exterior of a vehicle during a lawful

traffic stop does not implicate legitimate privacy interests.”). Finally, a canine’s

alert to the presence of contraband in a vehicle during its exterior sniff gives law

enforcement officers probable cause to search the interior of the vehicle. See

United States v. Rosborough, 366 F.3d 1145, 1152 (10th Cir. 2004); United States

v. Ludwig, 10 F.3d 1523, 1527–28 (10th Cir. 1993).

      In sum, “a routine stop at a fixed border checkpoint, i.e., a stop within the

parameters set forth by this court in Massie” and related cases, as outlined above,

“is not custodial and Miranda warnings are not necessary.” Hudson, 210 F.3d at

1191. This rule of law is animated by our view that “no reasonable person

detained during a routine border stop could believe that her freedom was

restrained to the degree associated with formal arrest.” Id. Given the heightened

security restrictions that the Sovereign routinely and necessarily enforces at fixed

border checkpoints, “[w]e stress that events which might be enough often to

signal ‘custody’ away from the border will not be enough to establish ‘custody’ in

the context of entry into the country.” Moya, 74 F.3d at 1120.

      Mr. Sanchez-Gallegos contends that the district court erred in denying his

motion to suppress the first statement that he made to Agent Gonzalez because he

had not been advised of his Miranda rights at the time he made the statement.

The government counters that no Miranda advisement was necessary because Mr.

                                         -14-
Sanchez-Gallegos’s interaction with the Border Patrol agents did not rise to the

level of a custodial interrogation. I believe that the government has the better

argument in this case.

      Here, the district court properly concluded that Mr. Sanchez-Gallegos was

not subjected to custodial interrogation. While Mr. Sanchez-Gallegos was not

informed of his right to terminate the encounter, the nature of the pre-Miranda

questioning was neither prolonged nor accusatory. See Jones, 523 F.3d at 1240

(explaining that prolonged and accusatory questioning can create a coercive

environment); see also Hudson, 210 F.3d at 1191 (“[Q]uestioning at the border

must rise to a distinctly accusatory level before it can be said that a reasonable

person would feel restraints on his ability to roam to the degree associated with

formal arrest.” (quoting Moya, 74 F.3d at 1120) (internal quotation marks

omitted)).

      The exchange that prompted Mr. Sanchez-Gallegos’s first allegedly

incriminatory statement was extremely brief. See Hudson, 210 F.3d at 1192

(noting that “[t]he questions were asked over a relatively brief ten-minute time

period”); cf. Massie, 65 F.3d at 849 (“We further conclude the agents’ continued

detention and questioning of Defendants did not exceed the confines of a routine

checkpoint stop. The agents’ questioning lasted only eight to eleven

minutes . . . .”); United States v. Sukiz-Grado, 22 F.3d 1006, 1008–09 (10th Cir.

1994) (“The questions that the agent asked Mr. Sukiz during his two-minute

                                         -15-
detention at the primary inspection area clearly fall within the ambit of routine

inquiry or were justified by the suspicious circumstances observed by the

agent.”).

       Before Mr. Sanchez-Gallegos made his incriminating statement, Agent

Gonzalez had explained that he was concerned that there were children attempting

to circumvent the checkpoint by traveling through the desert. Agent Gonzalez

asked Mr. Sanchez-Gallegos about the large amount of American and Mexican

currency found in his pocket during the consensual pat-down search and the

Mexican birth certificates found in his vehicle. 6 In response, Mr. Sanchez-

Gallegos admitted that the money was “payment to take some children to . . .

Chicago.” R., Vol. III, at 29.




       6
            Agent Gonzalez explained at the suppression hearing that the
following discussion prompted Mr. Sanchez-Gallegos’s first allegedly
incriminatory statement:

              I asked him about all the inconsistencies that we had found, and
              I told him about the fact that he had lied to me about the travel
              plans, that he had told me he was a U.S. citizen, that he had all
              this money that he couldn’t explain to me how he got it, and that
              he had some birth certificates for children.
                     I told him that I believed there was a group of children
              walking around the checkpoint and that my concern was that, if
              they were, then they could be exposed to the elements and
              maybe, as I have seen before, die in the desert.

R., Vol. III, at 28.

                                         -16-
      While it is true that Mr. Sanchez-Gallegos was removed from his vehicle

and asked to wait in the Border Patrol checkpoint office, Mr. Sanchez-Gallegos

consented to every progressive step in his encounter with Agent Gonzalez leading

up to the questioning that elicited his allegedly incriminatory response. And there

has been no suggestion by Mr. Sanchez-Gallegos that this consent was coerced or

illegally obtained. First, despite not needing Mr. Sanchez-Gallegos’s permission

to refer him to the secondary checkpoint, see Forbes, 528 F.3d at 1277, Agent

Gonzalez sought and received such permission before Mr. Sanchez-Gallegos

moved his vehicle from the primary inspection area to the secondary inspection

area. Second, again without needing permission, Agent Gonzalez sought and

received Mr. Sanchez-Gallegos’s permission prior to having another Border Patrol

Agent conduct an exterior canine sniff of the vehicle. See Williams, 403 F.3d at

1207; Massie, 65 F.3d at 848. Finally, Agent Gonzalez sought and received Mr.

Sanchez-Gallegos’s permission to conduct a pat-down search before having him

wait in the checkpoint office.

      Moreover, the atmosphere cannot be described as police-dominated. See

Chee, 514 F.3d at 1113; Griffin, 7 F.3d at 1518–19. Only two agents were

present during the questioning. Mr. Sanchez-Gallegos was never placed in

handcuffs. And he was never subjected to, nor threatened with, any physical

mistreatment. See Eckhart, 569 F.3d at 1276 (explaining that Miranda warnings

were not required where the defendant “was never handcuffed or placed in a

                                        -17-
police cruiser and no weapons were drawn . . . [and] the officers were polite in

their demeanor and did not use or threaten the use of force at any time”).

Therefore, in the context of a fixed border checkpoint search, I do not believe that

these circumstances, viewed in the totality, suggest that Mr. Sanchez-Gallegos

was in custody. See Hudson, 219 F.3d at 1191 (concluding that defendants were

not in custody under similar circumstances). 7




      7
             Our analysis in Hudson is noteworthy:

             This court reaches the same conclusion even when the series of
             questions is viewed together with the fact that Hudson and Riness
             were asked to exit their vehicle during the canine search and that
             the bill of lading was not returned to Hudson. As noted above,
             there is no question that Hudson and Riness were seized. The
             real question then becomes whether these two factors, considered
             in the context of the totality of the circumstances, altered the
             circumstances of the border stop in a manner to take it outside of
             the parameters of Massie. We note that none of the agents
             involved in this case ever spoke to Hudson and Riness in a harsh
             or threatening manner or made any show of force. Hudson and
             Riness voluntarily left their vehicle and consented to the canine
             search. Hudson and Riness were never separated from each
             other, were never placed in handcuffs or a holding cell, and were
             never told they were under arrest. Although it was clear that they
             would be unable to leave because of the pendency of the canine
             search, they had specifically consented to the search.
             Accordingly, the agents’ failure to return the bill of lading at the
             time the questioning occurred is completely unremarkable.
             Considered against the totality of the circumstances in this case,
             none of the factors identified by the district court take this case
             outside of the Massie heartland.

210 F.3d at 1192–93.

                                         -18-
      To be sure, Mr. Sanchez-Gallegos had been at the checkpoint for as long as

fifty minutes when he made the first allegedly incriminatory statement. However,

this passage of time must be viewed in the context of (1) his consent, and (2) the

fact that Mr. Sanchez-Gallegos was not questioned throughout this entire period.

Mr. Sanchez-Gallegos consented to each governmental action that resulted in the

delay. Furthermore, during a considerable portion of this time, Agent Gonzalez

was either engaged in border-enforcement duties unrelated to Mr. Sanchez-

Gallegos or was running criminal and immigration history checks related to Mr.

Sanchez-Gallegos but not interrogating him. Mr. Sanchez-Gallegos’s first

allegedly incriminatory statement came in response to a very brief period of

questioning by Agent Gonzalez. Consequently, on the facts of this case, I do not

believe that Massie’s limitation to a “brief” period of questioning was

contravened. Compare United States v. Chavira, 614 F.3d 127, 134 (5th Cir.

2010) (“Under all these circumstances, thirty to forty minutes of increasingly

accusatory questioning would indicate to the reasonable person in Chavira’s

situation that her freedom had been restrained to the degree associated with

formal arrest.”), with United States v. Harrell, 894 F.2d 120, 124 (5th Cir. 1990)

(“[W]e cannot say that a 60–75 minute interrogation is per se custodial, especially

where the detainee offers the incriminating statements early in the detention.

Some measure of investigatorial questioning is permissible without invoking

Miranda concerns.”).

                                        -19-
      Mr. Sanchez-Gallegos was not in custody when he initially admitted to

receiving money to transport children to Chicago because his freedom was not

curtailed to the degree associated with a formal arrest. Therefore, in the context

of a fixed border checkpoint search, and under the unique circumstances of this

case—that included Mr. Sanchez-Gallegos’s repeated grants of consent which

extended his encounter with law enforcement—Miranda warnings were not

required. Thus, in my view, the district court did not err in denying the motion to

suppress.




                                        -20-
No. 09-2146, United States v. Sanchez-Gallegos

BRISCOE, Chief Judge, concurring:



      I agree with the ultimate conclusion that Sanchez-Gallegos was not in

custody when he made his initial incriminating statements and that Miranda,

therefore, does not apply. Thus, I agree that the district court did not err in

denying the motion to suppress these incriminating statements. However, in my

view, Sanchez-Gallegos’s encounter exceeded the parameters for a routine stop at

a fixed border checkpoint established in United States v. Massie, 65 F.3d 843

(10th Cir. 1995). Nonetheless, I conclude that Sanchez-Gallegos was not in

custody for purposes of Miranda based on the totality of the circumstances

presented.

                                          I

      In United States v. Hudson, this court established that “a routine stop at a

fixed border checkpoint, i.e., a stop within the parameters set forth by this court

in Massie, is not custodial and Miranda warnings are not necessary.” Hudson,

210 F.3d 1184, 1191 (10th Cir. 2000). Thus, the first question to address is

“whether the facts of this case take it outside of the Massie heartland.” Id. I

conclude that Sanchez-Gallegos’s encounter with the border patrol agents

exceeded the Massie parameters for a routine stop at a fixed border checkpoint.

      In Massie, this court defined a routine fixed border checkpoint stop as a

“brief and unintrusive” encounter where “a border patrol agent may ask questions
reasonably related to his duties and explore suspicious circumstances.” 65 F.3d at

848 (emphasis added). Further, without exceeding the confines of a routine fixed

border checkpoint stop, an agent may direct individuals to a secondary checkpoint

and can pursue inquiries at the secondary location regarding “vehicle ownership,

cargo, destination, and travel plans, and . . . any suspicious circumstances . . .

observed, as long as the detention remain[s] brief and unintrusive.” Id. at 849

(internal quotation marks and citation omitted). Thus, in Massie, this court

characterized as a routine checkpoint stop an encounter at a fixed border

checkpoint involving inquiries that “lasted only eight to eleven minutes from the

time Defendants were stopped at primary to the moment the dog alerted on the

trunk” and that concerned “citizenship, vehicle ownership, vehicle contents,

destination, and travel plans.” Id.

      Sanchez-Gallegos’s stop at the fixed border checkpoint exceeded the

Massie parameters due the length and intrusiveness of the encounter. Initially,

the encounter began as a routine fixed border checkpoint stop. Specifically, the

border patrol agents asked routine questions and referred Sanchez-Gallegos to the

secondary checkpoint, where he consented to a canine search of his vehicle. See

Hudson, 210 F.3d at 1192–93. However, after the dog alerted to the vehicle,

Sanchez-Gallegos was asked to proceed to the secondary checkpoint office and he

submitted to a consensual pat-down search for the agents’ safety, which revealed

approximately eight thousand dollars in his pocket. While Sanchez-Gallegos

                                          -2-
waited in the secondary checkpoint office, border patrol agents searched the

interior of his vehicle, uncovering six Mexican birth certificates. At this point,

after Sanchez-Gallegos had been detained at the checkpoint for approximately

forty to fifty minutes, the agents engaged in the questioning that elicited the

incriminating statements at issue in this case. I conclude that this encounter

necessarily extended beyond the confines of a brief, unintrusive detention as

required in Massie for a routine stop at a fixed border checkpoint.

                                          II

      Even though the encounter exceeded the parameters of Massie, this does

not dictate the conclusion that Sanchez-Gallegos was in custody for purposes of

Miranda. See Hudson, 210 F.3d at 1191 n.8 (“[T]his court does not mean to

suggest that every time a border stop evolves beyond the routine parameters set

forth in Massie a custodial situation is created.”). Rather, this court must still

consider the totality of the circumstances presented to determine “whether a

reasonable person in [the suspect’s] position would have understood [his] freedom

of action to have been restricted to a degree consistent with formal arrest.”

United States v. Revels, 510 F.3d 1269, 1275 (10th Cir. 2007). This inquiry

involves examination of the following non-exhaustive factors: “(1) whether the

circumstances demonstrated a police-dominated atmosphere; (2) whether the

nature and length of the officers’ questioning was accusatory or coercive; and (3)




                                          -3-
whether the police made [the suspect] aware that []he was free to refrain from

answering questions, or to otherwise end the interview.” Id.

      Examining the totality of the circumstances presented in this case, I

conclude that Sanchez-Gallegos was not in custody for the purposes of Miranda.

First, Sanchez-Gallegos was not questioned in a police-dominated atmosphere.

Specifically, only two border patrol agents were present during the questioning

that elicited the incriminating statements. Further, while the questioning occurred

in the secondary checkpoint office, Sanchez-Gallegos was directed to that

location during the search of his vehicle and after he submitted to a consensual

pat-down search. See United States v. Butler, 249 F.3d 1094, 1100–01 (9th Cir.

2001) (“[T]he mere detention of a person in a border station’s security office from

which he or she is not free to leave, while a search of a vehicle occurs, is not

‘custody’ for [Miranda] purposes.”).

      Second, the nature and length of the officers’ questioning was not

accusatory or coercive. Specifically, there is no indication that the border patrol

agents spoke in a threatening or accusatory tone and the agents did not display

their weapons during the inquiry. Further, Sanchez-Gallegos was not placed in

handcuffs or a holding cell, he was not told that he was under arrest, and he was

not questioned for a long period of time. In fact, the questioning that elicited the

incriminating statements at issue in this case was brief. However, Sanchez-

Gallegos was not informed of his right to terminate the encounter with the agents.

                                          -4-
Nevertheless, when considering the totality of the circumstances, I conclude that

Sanchez-Gallegos was not in custody for the purposes of Miranda. See United

States v. Jones, 523 F.3d 1235, 1240 (10th Cir. 2008) (“Although these factors are

useful, we emphasize that we must look to the totality of the circumstances and

consider the police-citizen encounter as a whole, rather than picking some facts

and ignoring others.”).

      As Sanchez-Gallegos was not in custody for the purposes of Miranda, I also

conclude that the district court did not err in denying the motion to suppress his

initial incriminating statements.




                                         -5-
No. 09-2146, United States v. Sanchez-Gallegos

EBEL, Circuit Judge, concurring.


      I agree with both of my respected panel members that Mr. Sanchez-

Gallegos' conviction should be affirmed. However, I part ways with the majority

in its conclusion that Mr. Sanchez-Gallegos was not in custody when he made his

initial incriminating statement to Border Patrol Agent Gonzalez. In my view, Mr.

Sanchez-Gallegos was in custody at that point, and it was incumbent upon the

agents to warn him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966),

prior to that interrogation. However, I believe that the officers' administration of

the Miranda warning after that initial statement was sufficient to advise Mr.

Sanchez-Gallegos of his rights, and to render the statements made after the

warning—the vast bulk of the statements that led to Mr. Sanchez-Gallegos'

arrest—admissible. Thus, I believe that while the admission of the single pre-

Miranda statement was erroneous, the error was in fact harmless. Accordingly, I

agree that Mr. Sanchez-Gallegos’ conviction should be affirmed.

I.   Mr. Sanchez-Gallegos Was In Custody at the Time of His Initial Statement

     The majority is correct that “a routine stop at a fixed border checkpoint, i.e.,

a stop within the parameters set forth by this court in [United States v. Massie, 65

F.3d 843 (10th Cir. 1995)], is not custodial and Miranda warnings are not

necessary.” United States v. Hudson, 210 F.3d 1184, 1191 (10th Cir. 2000). In
Massie, we held that “during a routine fixed-checkpoint stop a border patrol agent

may ask questions reasonably related to his duties and explore suspicious

circumstances, but must be brief and unintrusive.” 65 F.3d at 848 (emphasis

added). In that case, we determined that border patrol agents' detention and

questioning of defendants were sufficiently brief and unintrusive so as not to

exceed the confines of a routine checkpoint stop where the “agents' questioning

lasted only eight to eleven minutes from the time Defendants were stopped at [the]

primary [inspection area] to the moment the dog alerted on the trunk,” and where

“[t]he agents questioned Defendants about citizenship, vehicle ownership, vehicle

contents, destination, and travel plans.” Id. at 849.

      I agree with Chief Judge Briscoe’s opinion that the facts of this case “take it

outside of the Massie heartland.” Hudson, 210 F.3d at 1191. First, Mr. Sanchez-

Gallegos had been detained for approximately forty to fifty minutes before Agent

Gonzalez asked the questions that elicited Mr. Sanchez-Gallegos' initial

incriminating statement. Second, although consensual, Mr. Sanchez-Gallegos was

directed to a secondary checkpoint, subjected to a canine sniff of his vehicle, and

patted down. The interior of his vehicle was then searched by border patrol agents

and he was questioned in a secondary checkpoint office. In addition, Agent

Gonzalez's questions that elicited Mr. Sanchez-Gallegos' testimony were anything

but unintrusive. As Agent Gonzalez testified at the suppression hearing:

         I asked him about all the inconsistencies that we had found, and I
         told him about the fact that he had lied to me about the travel
                                          -2-
         plans, that he had told me he was a U.S. citizen, that he had all this
         money that he couldn't explain to me how he got it, and that he had
         some birth certificates for children. I told him that I believed there
         was a group of children walking around the checkpoint and that my
         concern was that, if they were, they could be exposed to the
         elements and maybe, as I have seen before, die in the desert.

R., vol. III at 28. Under these circumstances, the detention and questioning of

Mr. Sanchez-Gallegos exceeded the parameters set forth in Massie.

      Chief Judge Briscoe nonetheless concludes that Mr. Sanchez-Gallegos was

not in custody for the purposes of Miranda under the totality of circumstances

presented here. To determine whether a suspect is in custody for the purposes of

Miranda, we “must decide whether a reasonable person in [the suspect's] position

would have understood [his] freedom of action to have been restricted to a degree

consistent with formal arrest.” United States v. Revels, 510 F.3d 1269, 1275

(10th Cir. 2007). “Several relevant factors inform our fact-specific analysis,

including: (1) whether the circumstances demonstrated a police-dominated

atmosphere; (2) whether the nature and length of the officers' questioning was

accusatory or coercive; and (3) whether the police made [the suspect] aware that

[he] was free to refrain from answering questions, or to otherwise end the

interview.” Id. I believe that this analysis inevitably leads to the conclusion that

Mr. Sanchez-Gallegos was in custody.

      First, the circumstances demonstrate a police-dominated atmosphere. Mr.

Sanchez-Gallegos was removed from his vehicle, taken to a separate checkpoint

office, and interrogated in the presence of two border patrol agents, while two
                                         -3-
other agents searched his vehicle. Chief Judge Briscoe believes that this does not

suffice to create a police-dominated atmosphere because (1) Mr. Sanchez-

Gallegos was directed to the secondary checkpoint office during the search of his

vehicle and only after he submitted to a consensual pat-down search, and (2) only

two border patrol agents were present during the initial interrogation. I

respectfully disagree. First, as Judge Holmes recognizes, the search of Mr.

Sanchez-Gallegos' vehicle was completed before he was subjected to the

interrogation that elicited his incriminating statement. Second, it is unclear why

two border patrol agents questioning Mr. Sanchez-Gallegos alone in a border

checkpoint office is insufficient to constitute a police-dominated atmosphere.

Moreover, more than two agents were present at the checkpoint, as at least two

others searched Mr. Sanchez-Gallegos' vehicle. Therefore, I find that this factor

supports a conclusion that Mr. Sanchez-Gallegos was in custody at the time of the

interrogation.

      The second factor— whether the nature and length of the officers'

questioning was accusatory or coercive—is a closer call. On the one hand, I think

it is an inescapable conclusion that the agents' questioning was accusatory. Agent

Gonzales not only accused Mr. Sanchez-Gallegos of lying and giving inconsistent

statements, but Gonzales showed Mr. Sanchez-Gallegos the birth certificates and

told him that a group of children “could be exposed to the elements and maybe, as




                                         -4-
I have seen before, die in the desert.” R., vol. III at 28. I fail to see how such

questioning is not plainly accusatory.

      On the other hand, as my respected panel members point out, Mr. Sanchez-

Gallegos was not subjected to or threatened with any physical mistreatment, was

not placed in handcuffs or a holding cell, and was not questioned for a long

period of time before the Miranda warning was given. Under these

circumstances, the agent's questioning, while accusatory, did not rise to the level

of coercion. Compare United States v. Eckhart, 569 F.3d 1263, 1276 (10th Cir.

2009) (finding stop to be noncoercive where defendant “was never handcuffed or

placed in a police cruiser and no weapons were drawn” and “the officers were

polite in their demeanor and did not use or threaten the use of force at any time”),

United States v. Lamy, 521 F.3d 1257, 1263 (10th Cir. 2008) (finding second

factor not met where “the interview lasted for about an hour and . . . there was no

indication that the questioning was unusually confrontational”), and United States

v. Bennett, 329 F.3d 769, 775 (10th Cir. 2003) (finding that coercive factors were

not present where police did not restrain the defendant while questioning him and

told him he was not under arrest), with United States v. Perdue, 8 F.3d 1455,

1464, 1467 (10th Cir. 1993) (finding “overwhelmingly” coercive atmosphere

where defendant “was forced out of his car and onto the ground at gunpoint” and

then questioned by officers “while police helicopters hovered above” and “while




                                          -5-
the officers kept their guns drawn on him and his pregnant fiancée”).

Accordingly, this factor cuts both ways in the analysis.

      Finally, as the majority acknowledges, Mr. Sanchez-Gallegos was never

informed by the agents that he was free to end the interview. This weighs

significantly in favor of finding custodial interrogation in this case. See Revels,

510 F.3d at 1276 (finding that the suspect was in custody for Miranda purposes

where “the police never indicated to [the suspect] that she was free to leave or

otherwise at liberty to terminate the police questioning”); United States v. Griffin,

7 F.3d 1512, 1518 (10th Cir. 1993) (“[T]he lack of a police advisement that the

suspect is at liberty to decline to answer questions or free to leave is a significant

indication of a custodial detention.”).

      Under the totality of the circumstances described above, I conclude that Mr.

Sanchez-Gallegos was in custody when he was questioned by Agent Gonzalez,

and therefore that the failure to give Mr. Sanchez-Gallegos a Miranda warning

rendered his initial statement inadmissible. However, I do not believe that this

error warrants reversal. As discussed below, the subsequent Miranda warning

given to Mr. Sanchez-Gallegos was effective to render his later statements

admissible, and thus the district court's admission of Mr. Sanchez-Gallegos' pre-

Miranda statement was harmless.




                                          -6-
II.   The District Court Did Not Err in Admitting Mr. Sanchez-Gallegos'
      Post-Miranda Statements.

After Mr. Sanchez-Gallegos made the initial incriminating statement, Agent

Gonzalez read Mr. Sanchez-Gallegos his Miranda rights and Mr. Sanchez-

Gallegos waived his right to remain silent. He then proceeded to confess to

involvement with the crime, and even went so far as to call Victor so that ICE

agents could find the children. The question, then, becomes whether the Miranda

warning given after the incriminating statement sufficed to render the post-

warning statements admissible, notwithstanding the prior violation of Mr.

Sanchez-Gallegos' Miranda rights.

In Missouri v. Seibert, the Supreme Court in a fragmented opinion found that a

Miranda warning given mid-interrogation pursuant to a “question-first tactic” was

insufficient to render the defendant's later statements admissible. 542 U.S. 600,

617 (2004). The four-justice plurality set forth the following five “relevant facts

that bear on whether Miranda warnings delivered midstream could be effective”:

             [1] the completeness and detail of the questions and answers
             in the first round of interrogation, [2] the overlapping content
             of the two statements, [3] the timing and setting of the first
             and the second, [4] the continuity of police personnel, and
             [5] the degree to which the interrogator's questions treated
             the second round as continuous with the first.

      Id. at 615.

             In a concurring opinion, however, Justice Kennedy argued for “a

      much narrower test applicable only to the infrequent case . . . in which


                                           -7-
the two-step interrogation technique was used in a calculated way to

undermine the Miranda warning.” Id. at 622 (Kennedy, J., concurring

in the judgment). Where a two-step interrogation technique was not so

used, Justice Kennedy believed that “[t]he admissibility of postwarning

statements should continue to be governed by the principles of [Oregon

v. Elstad 470 U.S. 298(1985)].” Id. In Elstad, the Court concluded that

“absent 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 compulsion,” and thus “[a]

subsequent administration of Miranda warnings to a suspect who has

given a voluntary but unwarned statement ordinarily should suffice to

remove the conditions that precluded admission of the earlier

statement.” Elstad, 470 U.S. at 314. Accordingly, the Court held that

statements made after a voluntary Miranda waiver could be admissible

as long as the pre-Miranda statements were also uncoerced. Id. at 318.

“[A] suspect 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.

      In United States v. Carrizales-Toldeo, we noted that determining

the holding of Siebert is not easy in light of the fragmented nature of

the opinion. 454 F.3d 1142, 1151 (10th Cir. 2006). We declined to

                                    -8-
      determine whether the four-justice plurality or Justice Kennedy's

      concurrence reflects the holding of Seibert, and instead applied both

      tests to the facts of that case. Id. However, I would hold that Justice

      Kennedy's concurrence, as the narrowest grounds for the Supreme

      Court's decision to suppress, represents the holding of Seibert. 1

             Under the test advanced by Justice Kennedy, Mr. Sanchez-

      Gallegos' post-Miranda statements are admissible. The record does not

      reflect that a “two-step interrogation technique was used in a calculated

      way to undermine the Miranda warning.” 542 U.S. at 622 (Kennedy, J.,

      1
          The majority of our sister circuits have reached the same conclusion. See
United States v. Capers, No. 07-1830-cr, 2010 U.S. App. LEXIS 24516, at *14
(2d Cir. Dec. 1, 2010) (noting that the Second Circuit applies Justice Kennedy's
approach); United States v. Torres-Lona, 491 F.3d 750, 758 (8th Cir. 2007) (“We
treat Justice Kennedy's concurrence as controlling since it provided the fifth vote
necessary for a majority and since it was decided on narrower grounds than the
plurality opinion.”); United States v. Street, 472 F.3d 1298, 1313 (11th Cir. 2006)
(“Because Seibert is a plurality decision and Justice Kennedy concurred in the
result on the narrowest grounds, it is his concurring opinion that provides the
controlling law.”); United States v. Courtney, 463 F.3d 333, 338 (5th Cir. 2006)
(“[W]e find Seibert's holding in Justice Kennedy's opinion concurring in the
judgment.”); United States v. Williams, 435 F.3d 1148, 1158 (9th Cir. 2006)
(finding that Justice Kennedy's “narrower test . . . represents Seibert's holding”);
United States v. Kiam, 432 F.3d 524, 532 (3d Cir. 2006) (“This Court applies the
Seibert plurality opinion as narrowed by Justice Kennedy.”); United States v.
Mashburn, 406 F.3d 303, 309 (4th Cir. 2005) (“Justice Kennedy's opinion
therefore represents the holding of the Seibert Court: The admissibility of
postwarning statements is governed by Elstad unless the deliberate 'question-first'
strategy is employed.”). But see United States v. Heron, 564 F.3d 879, 884 (7th
Cir. Ill. 2009) (“Although Justice Kennedy provided the crucial fifth vote for the
majority, we find it a strain at best to view his concurrence taken as a whole as
the narrowest ground on which a majority of the Court could agree. . . . Justice
Kennedy's intent-based test was rejected by both the plurality opinion and the
dissent in Seibert.”).
                                             -9-
      concurring in the judgment). Thus, we look to Elstad, which held that

      later statements could be admissible as long as the pre-Miranda

      statements were uncoerced. Elstad, 470 U.S. at 318. As discussed

      above, while the agent's pre-warning questioning was accusatory, it did

      not rise to the level of coercion such that Mr. Sanchez-Gallegos' post-

      Miranda statements are inadmissible under Elstad. Accordingly, I find

      that Mr. Sanchez-Gallegos' statements made after receiving the Miranda

      warning were properly admitted. 2




      2
         I acknowledge that the conclusion might be different under the plurality's
test in Seibert. This test “concern[s] the relationship between the first and second
interrogations.” Carrizales-Toldeo, 454 F.3d at 1150. In this case, there was
little distinction in the two phases of questioning. Although questions and
answers became more specific during the second interrogation, the content clearly
overlapped, as both interrogations concerned the transportation of children.
Moreover, there was no break in the timing, setting, or personnel of the two
interrogations. Finally, the questioning treated the second round as continuous
with the first, as the second followed immediately upon the first and followed up
on Mr. Sanchez-Gallegos' pre-Miranda statement.

                                          -10-
      III. The Admission of Mr. Sanchez-Gallegos' Pre-Miranda
      Statement Was Harmless Error

      Although the district court erred in admitting Mr. Sanchez-Gallegos' pre-

Miranda statement, this Court may nevertheless affirm his conviction if that error

was harmless. “The Supreme Court has applied harmless error analysis to a wide

range of constitutional errors, including the admission of unlawful confessions.”

Perdue, 8 F.3d at 1469 (internal quotation marks omitted). “A constitutional error

is harmless and may be disregarded if it appears beyond a reasonable doubt that

the error complained of did not contribute to the verdict obtained.” United States

v. Holly, 488 F.3d 1298, 1307 (10th Cir. 2007) (internal quotation marks

omitted).

      As a general rule, it is the government's burden to prove that an error was

harmless. See United States v. Lott, 310 F.3d 1231, 1251 (10th Cir. 2002) (citing

United States v. Miller, 111 F.3d 747, 751 (10th Cir. 1997)). Here, the

government failed to argue in its brief or at oral argument that the admission of

Sanchez-Gallegos' unwarned confession at trial was harmless. “Nevertheless,

where the government has failed to assert harmless error, this court may in its

discretion initiate harmless error review in an appropriate case.” Holly, 488 F.3d

at 1307 (internal quotation marks and citation omitted). “In deciding whether to

exercise its discretion to address harmlessness, this court considers '(1) the length

and complexity of the record; (2) whether the harmlessness of the errors is certain

or debatable; and (3) whether a reversal would result in protracted, costly, and
                                        -11-
futile proceedings in the district court.'” Id. at 1308 (quoting United States v.

Samaniego, 187 F.3d 1222, 1225 (10th Cir. 1999)). 3

      Considering harmless error sua sponte is appropriate in this case. As to the

first factor, the record in this case comprises three volumes and more than 600

pages of material, but consists primarily of transcripts. Though a long and

complex record normally weighs against sua sponte harmless-error review

unguided by the arguments of the parties, Samaniego, 187 F.3d at 1225, in this

case the record, while lengthy, is relatively straightforward, as is the case against

Mr. Sanchez-Gallegos.

      As to the second factor, even where a record is long and complex, sua

sponte harmless-error review may be appropriate “where the certainty of the

harmlessness is readily apparent.” Holly, 488 F.3d at 1308. Here, there can be

little doubt that the error of admitting testimony of Sanchez-Gallegos' one-

sentence unwarned statement was harmless. Whereas this statement was short

and vague, in his properly admitted post-Miranda statements, Mr. Sanchez-

Gallegos explained the situation to the officers in detail and even assisted the

officers in finding Victor and the children. The detail and extent of the post-


      3
        As noted by the Court in Holly, we have “quite reasonably” questioned
the relevance of the third factor. Holly, 488 F.3d at 1308 n.8; Samaniego, 187
F.3d 1225 n.2 (“Without eviscerating the doctrine, cost and potentially protracted
proceedings cannot preclude reversal if an error was not harmless.”). Here, as in
Holly, because the first two factors indicate that a sua sponte harmless-error
review is appropriate in this case, we do not need to address the third factor.
Holly, 488 F.3d at 1308 n.8.
                                        -12-
Miranda statements so vastly outweigh the pre-Miranda statement that it is

“beyond a reasonable doubt that the error complained of did not contribute to the

verdict obtained.” Holly, 488 F.3d at 1307. Accordingly, a sua sponte harmless-

error review is appropriate in this case, and inexorably leads to the conclusion

that the admission of Mr. Sanchez-Gallegos' pre-Miranda statement was harmless.



IV.   Conclusion


      While I believe that Mr. Sanchez-Gallegos was in custody at the time he

made the unwarned admission, the subsequent Miranda warning sufficed to make

the later statements admissible, and in light of the substance of those later

statements, the admission at trial of the pre-warned statement was harmless error.

I therefore concur with the judgment of the majority.




                                        -13-
