                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 06-4323
UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellee,
                                 v.

TIMOTHY STEWART,
                                              Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
      for the Southern District of Indiana, Evansville Division.
               No. 01 CR 32—Richard L. Young, Judge.
                          ____________
   ARGUED SEPTEMBER 18, 2007—DECIDED AUGUST 4, 2008
                          ____________


 Before EVANS, WILLIAMS, and SYKES, Circuit Judges.
  SYKES, Circuit Judge. Defendant Timothy Stewart was
found guilty of robbing a bank in Evansville, Indiana,
and using a firearm in connection with that crime. He
was sentenced to 159 months in prison. On his initial
appeal to this court, he argued that his videotaped con-
fession, played for the jury at trial, was the product of
a sequential method of interrogation in which Miranda
warnings were withheld until after he made an incul-
patory statement, in violation of the Supreme Court’s
holding in Missouri v. Seibert, 542 U.S. 600 (2004). We
2                                                 No. 06-4323

remanded to the district court for findings on whether the
police had deliberately used a two-step interrogation
technique designed to circumvent the requirements of
Miranda v. Arizona, 384 U.S. 436 (1966). When the case
returned to this court, we again remanded to the district
court for more particularized findings on whether the
interrogating officer intentionally withheld Miranda
warnings as part of a question-first, warn-later strategy.
On the second remand, the district court specifically
credited the officer’s explanation for belatedly delivering
Miranda warnings and found that the officer had not
engaged in a deliberate circumvention of Miranda.
   We affirm. Whether the interrogating officer delib-
erately withheld Miranda warnings as part of a two-step
interrogation process designed to elicit an unwarned
confession is a question of fact that we review for
clear error. The district court’s supplemental findings
were not clearly erroneous, and therefore the admission
of Stewart’s postwarning confession was not improper
under Seibert. We also agree with the district court that the
inculpatory statement Stewart made before being
Mirandized was voluntary. Accordingly, although inad-
missible (and not admitted) at trial, Stewart’s unwarned,
first statement did not affect the admissibility of his
second, fully warned and voluntary confession. See Oregon
v. Elstad, 470 U.S. 298, 314 (1985).


                       I. Background
  The background facts of this case were laid out in
substantial detail in our earlier decision in this case,
United States v. Stewart (“Stewart I”), 388 F.3d 1079 (7th Cir.
2004), and need only be summarized here. Stewart was
No. 06-4323                                             3

detained at a perimeter checkpoint established by the
Evansville Police Department following an armed rob-
bery at the Old National Bank. The officer running the
checkpoint believed Stewart matched a general descrip-
tion of the robber given to the dispatcher by another
officer who observed a black man running away from the
scene of the crime carrying a rifle and a duffel bag.
  Evansville Detectives Larry Nelson and Dan Winters
arrived at the checkpoint shortly after Stewart was de-
tained. Winters removed Stewart’s handcuffs. Stewart,
unprompted, then suggested they get in the detectives’
squad car; once in the car, he told Winters to “drive” and
“take me downtown.” Winters stayed put. A few
minutes later Nelson received information that Stewart’s
cell phone was found near the bank robber’s abandoned
getaway car. Winters then rehandcuffed Stewart, and the
detectives took him downtown to the police station. During
the short trip to the station, Nelson asked Stewart if he
was the bank robber; Stewart denied any involvement.
Stewart was not given Miranda warnings at this time,
although the parties agreed in the initial appeal of this
case that he was now in custody.
  At the station the detectives removed Stewart’s hand-
cuffs, placed him in an interview room, and asked again
whether he was involved in the robbery. Stewart told
them that another man, Duel Felders, committed the
robbery and that he (Stewart) provided Felders with the
gun and car. Winters and Nelson then left the interview
room to put out a “BOL” (“Be on Lookout”) for Felders.
Nelson met two FBI agents in the hallway who accompa-
nied him back into the interview room. The agents identi-
fied themselves and Stewart began to cry. Nelson asked
him if he committed the robbery. Stewart admitted doing
4                                               No. 06-4323

so and said that he did it alone. At that point Nelson
administered Miranda warnings and Stewart signed a
Miranda waiver form. He then gave a detailed videotaped
confession, which was played for the jury at trial over
the objection of his counsel. (As required by Miranda,
Stewart’s unwarned statement was excluded.) The jury
returned a verdict of guilty.
  Stewart appealed, arguing that his videotaped confession
was involuntary and the product of a question-first, warn-
later interrogation technique in violation of the Supreme
Court’s intervening decision in Seibert. We agreed with
the district court that Stewart’s post-Miranda confession
was voluntary, but concluded there was insufficient
evidence on the question of whether the officers deliber-
ately employed a two-step interrogation process in cir-
cumvention of Miranda. We remanded the case to the
district court for further factfinding on this point.
  On remand the district court again found Stewart’s pre-
and post-Miranda statements voluntary. The court fur-
ther held that the detectives did not violate Seibert be-
cause the Evansville Police Department did not have an
official policy directing officers to use a two-step inter-
rogation technique and did not train its officers to question
suspects in this fashion. Stewart again appealed. We
declined to reconsider our prior holding affirming the
district court’s voluntariness finding as to Stewart’s
postwarning confession and again remanded the case to
the district court for more specific findings on the ques-
tion whether the interrogating officer had deliberately
engaged in an end-run around Miranda. (On the first
remand, the district court had focused solely on the
Police Department’s lack of a policy or training practice
regarding two-step interrogations.) We directed the dis-
No. 06-4323                                              5

trict court to make findings on “the explanation given by
the officer for the failure to administer warnings in a
timely fashion and the credibility of that explanation in
light of the totality of relevant circumstances sur-
rounding the interrogation.” United States v. Stewart
(“Stewart II”), 191 F. App’x 495, 498-99 (7th Cir. 2006).
  The district court then made supplemental findings of
fact and conclusions of law in response to our order in
Stewart II. After reexamining Detective Nelson’s testimony,
the court accepted his explanation for failing to Mirandize
Stewart earlier in the interrogation. Nelson testified that
he did not think Stewart was in custody until he told
the officer he provided a gun and a car to Felders. Stewart
had himself asked to be taken downtown to the police
station, which Nelson construed as a voluntary en-
counter, not custody. Nelson also testified that he did not
deliver Miranda warnings immediately after Stewart
implicated himself as an accomplice to Felders because he
was in a rush to get out a BOL on Felders. The court
credited these explanations and reaffirmed its prior
holding. Stewart appealed for a third time.


                     II. Discussion
  In Seibert, the Supreme Court considered the question
of the admissibility of a confession obtained by a two-
step interrogation process in which Miranda warnings
were delivered mid-interrogation, after an initial and
unwarned inculpatory statement by the suspect. The Court
did not, however, achieve a majority opinion regarding
how such sequential interrogations ought to be evaluated.
Previously, the admissibility of a postwarning confession
obtained after an earlier, unwarned inculpatory state-
6                                                 No. 06-4323

ment was governed by Elstad, which required an inquiry
into whether the pre- and postwarning statements were
voluntary. 470 U.S. at 310-11. If the unwarned, first state-
ment was voluntary, then the second statement would
be admissible under Elstad provided it, too, was
voluntary and obtained after compliance with Miranda. Id.
at 318. If the unwarned, first statement was involuntary,
however, the admissibility of the second, warned state-
ment would depend upon whether there was a suf-
ficient separation in time and circumstances between the
first and second statements so the coercive taint of the
first did not carry over to the second. Id. at 310.
  Seibert altered Elstad’s approach to sequential interroga-
tions, at least in certain respects. In Stewart I, we traced
the Seibert plurality opinion and the concurrences of
Justices Breyer and Kennedy and concluded that “at least
as to deliberate two-step interrogations in which Miranda
warnings are intentionally withheld until after the sus-
pect confesses, the central voluntariness inquiry of Elstad
has been replaced by a presumptive rule of exclusion.”
Stewart I, 388 F.3d at 1090. Reconciling Justice Kennedy’s
concurrence with the plurality opinion, we concluded
that in cases not involving the deliberate use of a two-
step interrogation, “Elstad appears to have survived
Seibert.” Id. Justice Kennedy’s concurrence, however, did
not address the burden of proof or standard of review
applicable to the determination of deliberateness; we
turn to those threshold matters before taking up the
substance of the district court’s supplemental findings.


A. Burden of Proof
  The government bears the burden of demonstrating the
admissibility of a confession. Brown v. Illinois, 422 U.S. 590,
No. 06-4323                                                   7

603-04 (1975). This requires the government to prove by a
preponderance of the evidence the defendant’s Miranda
waiver and the voluntariness of the confession. Seibert,
542 U.S. at 608 n.1 (citing Colorado v. Connelly, 479 U.S. 157,
169 (1986), and Lego v. Twomey, 404 U.S. 477, 489 (1972)).
Whether the police deliberately used a two-step interroga-
tion method designed to circumvent Miranda is a
factual inquiry that bears upon the admissibility of the
defendant’s confession. Accordingly, where the defen-
dant’s confession was obtained during a sequential inter-
rogation with Miranda warnings delivered midstream,
the government bears the burden of proving the police
did not deliberately withhold the warnings until after
they had an initial inculpatory statement in hand. See
United States v. Ollie, 442 F.3d 1135, 1142-43 (8th Cir. 2006)
(finding that the government must prove lack of deliberate-
ness by a preponderance of the evidence because “[p]lacing
that burden on the prosecution is consistent with prior
Supreme Court decisions that require the government to
prove the admissibility of a confession before it may
come into evidence”).


B. Standard of Review
  There is not yet a general consensus among the cir-
cuits about the standard of review that applies to Seibert-
deliberateness determinations, but the trend appears to
be in the direction of review for clear error. See United States
v. Torres-Lona, 491 F.3d 750, 758 (8th Cir. 2007) (applying
clear-error standard of review); United States v. Narvaez-
Gomez, 489 F.3d 970, 974 (9th Cir. 2007) (applying clear-
error standard of review); United States v. Carter, 489 F.3d
528, 536 (2d Cir. 2007) (without deciding the matter,
appearing implicitly to apply de novo review); United
8                                               No. 06-4323

States v. Nunez-Sanchez, 478 F.3d 663, 668-69 (5th Cir. 2007)
(without deciding the matter, appearing implicitly to apply
clear-error review); United States v. Street, 472 F.3d 1298,
1314 (11th Cir. 2006) (without deciding the matter, appear-
ing implicitly to apply de novo review); United States v.
Naranjo, 426 F.3d 221, 232 (3d Cir. 2005) (applying clear-
error standard of review); United States v. Mashburn, 406
F.3d 303, 309 (4th Cir. 2005) (applying clear-error standard
of review).
  A district court’s decision to admit a confession is
ordinarily reviewed under a split standard of review:
legal issues and the “ultimate question of whether a
confession is voluntary” are subject to de novo review, but
the district court’s underlying factual findings (including
whether the defendant’s Miranda waiver was voluntary)
are reviewed for clear error, “especially when the sup-
pression decision turn[s] on the credibility of the wit-
nesses.” United States v. Walker, 272 F.3d 407, 411-12 (7th
Cir. 2001). The question of whether the interrogating
officer deliberately withheld Miranda warnings will
invariably turn on the credibility of the officer’s testimony
in light of the totality of the circumstances surrounding
the interrogation. This is a factual finding entitled to
deference on appeal; we will apply the clear-error stand-
ard of review.
   “We generally defer to the district court’s determination
of credibility because, unlike our review of transcripts,
the district court had the opportunity to listen to testi-
mony and observe the demeanor of witnesses at the
suppression hearing.” United States v. Biggs, 491 F.3d 616,
621 (7th Cir. 2007) (internal quotation marks omitted). In
this context, the clear-error standard is especially dif-
ficult to surmount; we will accept the district court’s
No. 06-4323                                                9

credibility finding “unless it is contrary to the laws of
nature, or is so inconsistent or improbable on its face that
no reasonable factfinder could accept it.” United States v.
Huebner, 356 F.3d 807, 813 (7th Cir. 2004) (internal quota-
tion marks omitted). Stated differently, “determinations
of witness credibility can virtually never be clear error.”
Biggs, 491 F.3d at 621 (internal quotation marks omitted).


C. The District Court’s Supplemental Findings
  Stewart argues as a general matter that in a custodial
interrogation, a police officer’s deferral of Miranda warn-
ings until after the suspect makes an incriminating state-
ment should always give rise to an inference of delib-
erateness. For support he cites the Ninth Circuit’s decision
in United States v. Williams, 435 F.3d 1148, 1160 (9th Cir.
2006), but that case does not help him here. In Williams, the
Ninth Circuit analyzed the split opinions in Seibert and
observed that once a suspect is in custody and subjected
to interrogation, “there is rarely, if ever, a legitimate
reason to delay giving a Miranda warning until after the
suspect has confessed.” 435 F.3d at 1159. “Instead,” the
court noted, “the most plausible reason for the delay is
an illegitimate one, which is the interrogator’s desire to
weaken the warning’s effectiveness.” Id. The Ninth Circuit
went on to hold, however, that “[t]he court should con-
sider any objective evidence or available expressions of
subjective intent” to determine whether “the officer acted
deliberately to undermine and obscure the warning’s
meaning and effect.” Id. at 1160. Justice Kennedy’s con-
currence in Seibert suggested a number of plausible rea-
sons why an officer might legitimately wait to deliver
Miranda warnings, including that “[a]n officer may not
realize that a suspect is in custody and warnings are
10                                               No. 06-4323

required.” Seibert, 542 U.S. at 620 (Kennedy, J., concurring).
Indeed, that was the officer’s explanation here, and
the district court found it credible.
  Stewart attacks Nelson’s testimony as inherently in-
credible. He argues that Nelson’s explanation for de-
ferring Miranda warnings—that he mistakenly believed
Stewart was not in custody until he implicated Felders,
with himself as an accomplice—is simply unworthy of
belief. But “the task of defining custody is a slippery
one, and policemen investigating serious crimes cannot
realistically be expected to make no errors whatsoever.”
Elstad, 470 U.S. at 309 (internal quotation marks & brackets
omitted). The point at which a suspect is in custody is
determined objectively—a suspect is in custody when
a reasonable person in the suspect’s circumstances
would not have felt free to leave. United States v. Thomp-
son, 496 F.3d 807, 810-11 (7th Cir. 2007). The subjective
belief of the officers involved is generally irrelevant.
Stansbury v. California, 511 U.S. 318, 323-24 (1994). In this
context, however, Nelson’s subjective belief about Stewart’s
custodial status is relevant to the evaluation of his reasons
for deferring Miranda warnings. Although we held in
Stewart I (and the parties agreed on appeal) that Stewart
was in custody when Winters rehandcuffed him at the
checkpoint and the detectives took him to the police
station, the district court was entitled to credit Nelson’s
contrary, though mistaken, subjective belief.
  In this regard, Stewart also maintains the district court
misinterpreted the import of his demand to “take me
downtown.” He argues Nelson could not reasonably
have believed this made his trip to the police station a
voluntary encounter. When Stewart made this demand,
however, he was not handcuffed and had himself sug-
No. 06-4323                                              11

gested to Winters, “Let’s get in your car.” In initially
denying Stewart’s suppression motion, the district court
had concluded that Stewart was not in custody at the
checkpoint. In Stewart I, we disagreed, but the court was
entitled on remand to credit Nelson’s explanation that
he waited to give Miranda warnings because he mis-
takenly believed Stewart was accompanying the officers
voluntarily.
   Stewart also attacks Nelson’s failure to give Miranda
warnings at an earlier point during the interrogation at the
station house—immediately after he incriminated him-
self as an accomplice to Felders. Nelson acknowledged
that he knew, at this point, that the warnings were re-
quired, and Stewart suggests that the failure to immedi-
ately provide them suggests that they were deliberately
withheld. The district court accepted Nelson’s explana-
tion that he failed to deliver the warnings at this point in
the interrogation in his rush to get a BOL out on Felders
and because of his subsequent encounter with the FBI
agents in the hall. Nelson said: “[W]hen I came back in the
room, by that time the FBI was coming in the room, and
they started talking to him.” He also testified: “When
I came back in the room, of course, the agents came in and
identified themselves, so I’m sure that had something to
do with it, but it’s still my error.”
  Stewart’s counsel suggested at oral argument that Nelson
did not leave the interview room to get information out on
Felders but instead to tell the arriving FBI agents that
Stewart was about to “break.” Nothing in the record
supports this assertion. Special Agent Williams testified
that Detective Winters first came into the hall to inform
him of the information on Felders; then “Detective Larry
Nelson exited the same interview room and came out
12                                              No. 06-4323

and indicated that—basically the same information that
Detective Winters had indicated.” Agent Williams testi-
fied that he and Special Agent Beck then went into the
interview room to question Stewart along with Nelson,
and at that point Stewart began to cry and admitted
committing the robbery. This corroborates Nelson’s
explanation. The existence of a plausible alternative
explanation—that Nelson deliberately withheld Miranda
warnings because he wanted to capitalize on Stewart’s
weakened emotional state—does not itself undermine
the district court’s credibility determination. The court did
not clearly err in accepting Nelson’s explanation for
delaying the Miranda warnings.
   Stewart raises two additional challenges to the district
court’s deliberateness findings. First, he contends the
district court applied an incorrect legal standard when
it considered the degree of overlap between his pre- and
post-Miranda confessions in analyzing whether the two-
step interrogation method was deliberately employed. The
district court noted that “the content of the pre- and post-
Miranda statements did not overlap”—Stewart’s pre-
warning statement was limited to his admission that he
committed the robbery alone, and his postwarning state-
ment was not just a repetition of the first but contained
far more detail.
  For the Seibert plurality, the degree of overlap between
pre- and post-Miranda statements bears upon the ques-
tion whether “Miranda warnings delivered midstream
could be effective enough to accomplish their object.”
Seibert, 542 U.S. at 615. For Justice Kennedy, an inquiry
into the differences in time and circumstances between
the first and second statement is necessary only when
the interrogating officer uses a “deliberate two-step
No. 06-4323                                             13

strategy, predicated upon violating Miranda during an
extended interview.” Id. at 621 (Kennedy, J., concurring).
“If the deliberate two-step strategy has been used,
postwarning statements that are related to the substance
of prewarning statements must be excluded unless cura-
tive measures are taken before the postwarning statement
is made.” Id. at 622. Justice Kennedy suggested that a
“substantial break in time and circumstances” between
the two statements “may suffice” as adequate curative
measures “in most circumstances.” Id.
  Here, the district court cited the relative lack of over-
lap between Stewart’s pre- and post-Miranda statements
as objective evidence that Detective Nelson had not
deliberately used a two-step interrogation strategy—not as
in the Seibert plurality, as a measure of the effectiveness
of midstream Miranda warnings or, as in Justice Kennedy’s
concurrence, to evaluate whether sufficient “curative
measures” were proven. Nevertheless, the district
court’s approach was not error. The Seibert plurality
noted that the point of using a two-step process “is that
with one confession in hand before the warnings, the
interrogator can count on getting its duplicate, with
trifling additional trouble.” Id. at 613. Conversely, the
lack of overlap between the warned and unwarned state-
ments is evidence that the interrogator did not delib-
erately use a two-step strategy designed to circumvent
Miranda.
  Stewart also argues the district court’s failure to con-
sider Detective Winters’s reasons for omitting Miranda
warnings was error. We disagree. The court’s factual
findings establish that Nelson was the lead detective
and that Winters’s involvement in the actual interroga-
tion was collateral. Nelson confronted Stewart with
14                                              No. 06-4323

information about the cell phone found at the scene.
Nelson questioned Stewart during the short ride to the
police station and initially in the interrogation room. After
Winters left the interrogation room, Nelson asked the
question that elicited Stewart’s initial admission to com-
mitting the robbery alone, and Nelson subsequently
advised Stewart of his rights and obtained a Miranda
waiver. Under cross-examination by Stewart’s counsel,
Winters testified explicitly that “Detective Nelson was
the lead investigator on this.”
  The determination of whether a question-first strategy
was deliberately used does not require an inquiry into
the state of mind of every officer involved in the interroga-
tion. It is enough here that the district court credited
Detective Nelson’s reasons for omitting Miranda warnings.
He was the lead investigator and was responsible for the
bulk of the interrogation. That Detective Winters played
only a supportive role in the interrogation is borne out
by the record; the absence of any inquiry into his reasons
for omitting Miranda warnings does not undermine the
district court’s acceptance of Nelson’s explanation.


D. Voluntariness of Stewart’s Pre-Miranda Statement
  Finally, Stewart argues that his pre-Miranda statement
was involuntary and that the coercive taint carried over
to his post-Miranda statement, making it inadmissible
under Elstad. In Stewart I, we affirmed the district court’s
conclusion that Stewart’s postwarning confession was
voluntary and remanded for findings on whether the
police deliberately used a two-step interrogation process
designed to circumvent Miranda, and if so, for a further
inquiry into the sufficiency of the separation in time and
No. 06-4323                                                 15

circumstances between the warned and unwarned confes-
sions. 388 F.3d at 1091-92. Our remand instructions also
told the district court that if it found that the interrogation
process used here was not a deliberate end run around
Miranda, it should determine “whether the initial
unwarned confession would flunk the voluntariness
standard of Elstad such that the taint would carry over to
the second warned confession.” Id. at 1091. The district
court found “no evidence of any coercive police activity
relative to [Stewart’s] pre-Miranda statement.”
  Stewart points to the fact that he began to cry when
the FBI agents entered the interrogation room and argues
that this undercuts the district court’s voluntariness
finding. His emotional reaction to the entry of the FBI into
the investigation is hardly evidence of coercive inter-
rogation tactics and does not by itself call into question the
voluntariness of his pre-Miranda statement. The voluntari-
ness inquiry asks whether the confession is “the product
of a rational intellect and free will and not the result of
physical abuse, psychological intimidation, or deceptive
interrogation tactics that have overcome the defendant’s
free will.” United States v. Gillaum, 372 F.3d 848, 856 (7th
Cir. 2004) (internal quotation marks omitted). We agree
with the district court that there is no evidence of any
form of police coercion at work here. Stewart’s Mirandized
and voluntary videotaped confession was properly ad-
mitted at trial.
                                                   AFFIRMED.


                     USCA-02-C-0072—8-4-08
