                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-15-1998

United States v. Tyler
Precedential or Non-Precedential:

Docket 96-7776




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Filed December 15, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-7776

UNITED STATES OF AMERICA

v.

WILLIE TYLER
a/k/a "Little Man"

WILLIE LEE TYLER,
       Appellant

ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE MIDDLE
DISTRICT OF PENNSYLVANIA
D.C. No. 96-cr-00106

Argued: August 12, 1997

Before: Alito, Lewis and McKee, Circuit Judges.

Reargued: July 8, 1998

Before: Cowen, Alito and McKee, Circuit Judges

(Filed December 15, 1998)

       Lori J. Ulrich, Esq.
       Office of Federal Public Defender
       Suite 306
       100 Chestnut Street
       Harrisburg, PA 17101
       Daniel I. Siegel, Esq. (Argued)
       Office of Federal Public Defender
       100 Chestnut Street
       Harrisburg, PA 17101

        Attorneys for Appellant

       Gordon A.D. Zubrod (Argued)
       Office of the United States Attorney
       Federal Building
       228 Walnut Street
       P.O. Box 11754
       Harrisburg, PA 17108

        Attorney for Appellee

OPINION OF THE COURT

McKee, Circuit Judge

Willie Lee Tyler ("Tyler") appeals his convictions on
charges arising out of the killing of Doreen Proctor, a
government witness who was scheduled to testify against
Tyler's brother, David, the day after Proctor's murder. Tyler,
David, Roberta Ronique Bell and others were subsequently
arrested and charged in state court. Tyler and Bell were
acquitted of murder in the state prosecution (though they
were convicted of conspiracy to intimidate a witness) and
were thereafter separately prosecuted for witness tampering
and related offenses in federal court. Tyler was convicted of
conspiracy, witness tampering, and a related firearms
offense in the federal prosecution, and this appeal followed.
He raises several assertions of error, however, we only
discuss his assertion that the district court erred in
denying his motion to suppress certain custodial
statements. His remaining assertions are either meritless or
waived with the exception of his challenge to the court's
jurisdiction under 18 U.S.C. S 1512. We will mention that
assertion only briefly as we have already disposed of that
claim in the appeal taken by one of Tyler's companions. For
the reasons that follow, we will reverse the district court's
order denying suppression of the statement Tyler gave after

                                  2
being given his Miranda warnings, and remand for
proceedings consistent with this opinion.1

I.

In April 1992, David Tyler was to be tried in the Court of
Common Pleas in Cumberland County, Pennsylvania on
criminal charges related to drug trafficking. Doreen Proctor,
a government informant for the Tri-County Drug Task Force
in Central Pennsylvania, was scheduled to testify against
him. Ms. Proctor had previously testified against several
individuals, including David Tyler, during a preliminary
hearing in state court in Carlisle, Pennsylvania. However,
the day before David Tyler's trial was to begin, David Tyler
and his cohorts severely beat, stabbed, and shot Proctor.
Her mangled body was discovered the next day.

On July 9, 1992, police arrested Willie Tyler for the
murder of Proctor and took him to the Carlisle Borough
Police Department. After an officer gave Tyler his Miranda
warnings,2 Tyler stated that he did not wish to make a
statement, and the officers refrained from further
interrogation.

Tyler was then taken to the State Police Barracks in
Gettysburg, Pennsylvania for re-arraignment.3 Detective
Ronald Egolf of the Carlisle Police Department was assigned
to guard and process him. Upon arriving at the barracks,
Tyler was taken to a small room and, at about 10:00 pm,
he and Detective Egolf engaged in a discussion that
included hunting, Tyler's education, and Tyler's mother's
_________________________________________________________________

1. We have jurisdiction pursuant to 28 U.S.C.S 1291.

2. See Miranda v. Arizona, 384 U.S. 436 (1966).

3. There is some dispute about exactly what occurred in transit. Tyler
alleges that police drove through a parking lot where Tyler and his co-
conspirators had driven the night of Proctor's murder. However, the
government disputes this testimony, and the district court did not
attempt to resolve the conflict. In any event, given our holding today,
the
significance of this conflict is greatly reduced. We note, however, as
suggested by our discussion below, that the district court must resolve
this conflict on remand to the extent that it may be relevant to the
circumstances leading up to the defendant's statement of July 20.

                                3
health. Although it is clear that the police and Tyler were
engaged in a discussion up until 10:55 pm, it is not clear
how many police were involved, nor exactly what was said.
It is clear, however, that at approximately 10:55 pm, Tyler
began to cry, and the police again warned him of his
Miranda rights. This time Tyler gave an inculpatory
statement that was introduced against him at his trial.

Eleven days later, on July 20, police obtained another
statement from Tyler while he was in custody in Adams
County Jail. The government maintains that the officers
repeated Miranda warnings, that Tyler verbally
acknowledged that he understood them, and that he
proceeded to orally waive those rights and give another
inculpatory statement. That statement, which was also
introduced against him at trial, differs from the July 9
statement in that in the later statement Tyler states that
David wanted only to "scare" Ms. Proctor. Def. Exh. "J". In
his earlier statement, Tyler had said that David wanted to
kill her.

Tyler filed a motion to suppress all statements made on
July 9, and the statement he made on July 20. The district
court granted Tyler's suppression motion as to any
statement Tyler may have given on July 9 before receiving
Miranda warnings ("the 10:00 pm statement"),4 but denied
it both as to the statement he gave after he was warned
("the 10:55 pm statement"), and the statement he later gave
on July 20 in the Adams County jail. Tyler now argues that
the district court should have suppressed both the 10:55
pm statement and the July 20 statement. Although we
agree that the district court erred in denying the
suppression motion as to the 10:55 statement, we cannot,
on the basis of this record, make a determination as to the
July 20 statement. Accordingly, we will remand to allow the
district court to make an appropriate inquiry into the
_________________________________________________________________

4. The parties and the district court refer to the dates of the prior
statement(s) alternatively as July 9, 1992, July 10 and July 9-10
because of the lateness of the hour. For the sake of consistency, and
clarity, we will assume that the date of any statement given during the
custodial interrogation that began at 10:00 pm was July 9, 1992, even
though the statement may have been given after midnight.

                               4
admissibility of that statement. If the court concludes that
the July 20 statement was properly admitted, it must then
determine whether or not the error of admitting the July 9
statement was harmless.

II.

Before addressing the substance of Tyler's challenge to
the district court's rulings on the suppression motion, we
first note that Tyler also argues that there was insufficient
evidence to sustain a conviction under 18 U.S.C.
S 1512(a)(1)(A) and (C) (tampering with a federal witness, or
interfering with a federal investigation). We need not
discuss that contention, however, because we recently
rejected the identical contention of codefendant, Roberta
Ronique Bell, in her appeal from her conviction based upon
her involvement in the murder of Ms. Proctor. See United
States v. Bell, 113 F.3d 1345, 1348-51 (3d Cir. 1997). We
reject Tyler's argument that the evidence did not establish
federal jurisdiction under that statute for the same reasons
that we rejected the identical arguments of Ms. Bell.

III.

A. The 10:55 pm Statement

Tyler maintains that the district court erred when it
admitted the 10:55 pm statement that was taken on July 9,
after he had exercised his right to remain silent. We
exercise plenary review as to the admissibility of each of the
challenged statements. United States v. Benton, 996 F.2d
642, 644 (3d Cir. 1993) (citing United States v. Calisto, 838
F.2d 711, 717-18 (3d Cir. 1988)).

There is no dispute that Tyler was in custody when he
gave both the 10:55 pm statement and the July 20
statement.

In Miranda v. Arizona, the Supreme Court held that

       [W]hen an individual is taken into custody or otherwise
       deprived of his freedom by the authorities in any
       significant way and is subjected to questioning, the

                               5
       privilege against self-incrimination is jeopardized.
       Procedural safeguards must be employed to protect the
       privilege and unless other fully effective means are
       adopted to notify the person of his right of silence and
       to assure that the exercise of the right will be
       scrupulously honored, [certain warnings] are required
       . . . . But unless and until such warnings and waiver
       are demonstrated by the prosecution . . . no evidence
       obtained as a result of interrogation can be used
       against him.

384 U.S. at 478-79 (emphasis added). The Supreme Court
elaborated upon this in Michigan v. Mosley, 423 U.S. 96
(1975). There, the Court succinctly stated: "We .. .
conclude that the admissibility of statements obtained after
the person in custody has decided to remain silent depends
under Miranda on whether his right to cut off questioning
was scrupulously honored." 384 U.S. at 104 (emphasis in
the original text).

When Tyler was taken to the police barracks after
asserting his right to remain silent, he was placed in a
small room, the walls of which contained a timeline of the
murder investigation and crime scene photographs,
including two photographs of the body of Doreen Proctor
(one of which was in color). He remained there for hours. In
his report, Trooper Graham stated that he, Detective
Ronald Egolf and Troopers Donnelly and Fenstermacher
began "talking to" Tyler at about 10:00 pm, even though
Tyler had previously told them that he did not want to
make a statement. Graham also stated in his report:

       While talking to Tyler he became very emotional and
       began to cry. Mr. Tyler stated he did not know they
       were going to kill Doreen Proctor and that he was there
       when it happened but did not see if Roberta Ronique
       Bell or Jerome Kenneth King did the shooting. He did
       however relate that those two subjects were the only
       people back there when it happened and that his
       brother David James Tyler had remained in the first
       vehicle with him. David James Tyler was [leaning] out
       of the car, crying and yelling, "We got to kill her now,"
       "We got to kill her now."

                               6
       At this time Mr.   Tyler was stopped and again advised
       [of] his Miranda   warnings by Trpr. Fenstermacher and
       Mr. Tyler signed   the Rights Waiver form which is
       attached to this   report . . . .

D.Ct. Op. at 7. According to Graham, it was at that
moment that Tyler revealed all that happened the night of
the murder and the identity of those involved.

Detective Egolf's testimony at the suppression hearing
sharply conflicted with Trooper Graham's account of the
evening. Egolf claimed that he and Tyler were the only two
people present in the room when Tyler started to cry, and
that he told Tyler to "tell the truth" when he began crying.
App. at 287. Egolf also claimed that Tyler then began to
speak and, at 10:55 pm, he (Egolf) read Tyler his rights.

The conflicting nature of the police testimony in this case
caused the district court to comment: "We are troubled by
the glaring inconsistencies between Trooper Graham's
report and the testimony elicited at the suppression hearing
concerning what occurred prior to 10:55 pm on July 9,
1992." D.Ct. Op. at 7. The court also noted that "[a]t this
point,5 the facts become unclear, particularly with respect
to Trooper Graham." D. Ct. Op. at 6. However, the district
court failed to make any findings of fact as to what actually
happened. We note, however, that Egolf and Graham's
versions of what occurred are both inconsistent with their
obligation to scrupulously honor Tyler's assertion of his
right to remain silent. Nevertheless, the district court's
failure to make findings of fact has made our task of
reviewing this record and ruling upon Tyler's arguments
significantly more difficult. It is clear that the district court
was troubled by the testimony the police gave in this case,
and the court suggests that the testimony is not credible.
For example, the court responded to the government's
argument that Tyler never asserted his right to remain
silent as follows:

       [T]hat argument, and the testimony of the
       Government's witnesses at the [suppression] hearing
       are undermined by the prior testimony of Trooper Craig
_________________________________________________________________

5. Here, the court is referring to the moment when Tyler began to cry.

                                 7
       R. Fenstermacher, who testified that Defendant "was
       asked if he wanted to give us any statements or
       information and he declined, so no further questions
       were posed to him."

D. Ct. Op. at 6. Rather than make findings of fact and
conduct an analysis based upon those findings, the district
court allowed any statement into evidence that was
obtained after Tyler was advised of his Miranda rights. The
court stated:

       To the extent that the Defendant did make any
       statements while being interviewed between 10:00 and
       10:55, those statements will be suppressed.6 However,
       any statements made after Defendant knowingly signed
       a waiver of his rights are admissible. Defendant's"fruit
       of the poisonous tree" argument must be rejected. Even
       assuming the officers improperly elicited statements
       from the Defendant prior to reading him his rights, the
       statements that Defendant made after 10:55 p.m. were
       the result of Defendant's knowing and voluntary waiver
       of his rights and were not tainted by any prior illegal
       statements.

D. Ct. Op. at 8. The appropriate inquiry under Miranda and
its progeny, however, is not simply whether Tyler knowingly
waived his rights after receiving appropriate warnings.
Rather, the inquiry is whether the police "scrupulously
honored" Tyler's assertion of his right to remain silent.
Here, it is clear that they did not.

In Mosley, the Supreme Court amplified its
pronouncement that "[i]f the individual indicates in any
manner, at any time prior to or during questioning, that he
wishes to remain silent, the interrogation must cease."
Miranda, 384 U.S. at 473-74. The Court in Mosley
explained that this language could be interpreted literally to
mean several things: that a person who has invoked his or
her right to silence can never be subjected to custodial
_________________________________________________________________

6. It does not appear from the record that Tyler made a statement before
10:55 pm. The district court did not specificallyfind that he did, it
merely ruled that any statement that Tyler may have made before that
time was suppressed.

                               8
interrogation; that any statement that was taken following
exercise of the privilege is "the product of compulsion and
would therefore mandate its exclusion from evidence, even
if volunteered . . . without any further interrogation
whatever"; or that it may "require only the immediate
cessation of questioning, and . . . permit a resumption of
interrogation after a momentary respite." 423 U.S. at 102.
However, the Court rejected each of these interpretations.
In rejecting the latter interpretation, the Court reasoned
that allowing interrogation "after only a momentary
cessation would clearly frustrate the purposes of Miranda
by allowing repeated rounds of questioning to undermine
the will of the person being questioned." Id.

Accordingly, it is clear that police can not, as if by
alchemy, negate Tyler's invocation of his right to remain
silent by a mantra-like recitation of Miranda warnings. The
warnings are not intended to be a mere ritual, the exercise
of which guarantees the admissibility of any statement that
is obtained in a custodial interrogation regardless of the
circumstances. "The critical safeguard identified in
[Miranda] is a person's right to cut off questioning." Mosley,
423 U.S. at 104 (internal quotation marks omitted). Thus,
as earlier noted, the Court concluded in Mosley "that the
admissibility of statements obtained after the person in
custody has decided to remain silent depends under
Miranda on whether his right to cut off questioning was
scrupulously honored." Id. (internal quotation marks
omitted). Therefore, the district court erred when it simply
concluded that "any statements made after Defendant
knowingly signed a waiver of his rights are admissible." D.
Ct. Op. at 8. Here, the command to "tell the truth" after
Tyler had invoked his Miranda rights is the antithesis of
scrupulously honoring his right to remain silent. Detective
Egolf (and possibly others), see supra at pp. 2 and 6, had
been carrying on a conversation with Tyler for nearly an
hour when he broke down and was instructed to "tell the
truth." These circumstances would, in and of themselves,
be inconsistent with scrupulously honoring Tyler's
assertion of silence. However, to make matters worse (as
noted above), the room in which the "conversation"
occurred had pictures of the murder victim hung on the
walls.

                               9
Thus, the district court clearly erred in allowing the
prosecution to admit statements taken from defendant after
10:55 pm on July 9. The prosecution should not have been
allowed to admit those statements in its case-in-chief.7

B. The July 20, 1992 Statement

This case raises an issue that we have not yet addressed
in the context in which Tyler raises it. We have previously
had to determine the legality of a custodial statement after
police have illegally obtained a prior statement in the
context of a technical violation of Miranda under the Fifth
Amendment. See United States v. Johnson, 816 F.2d 918
(3d Cir. 1987). We have not, however, determined the
proper analysis when the prior illegality that is alleged to
taint a subsequent "Mirandized" statement is the failure of
the police to scrupulously honor a defendant's right to cut
off questioning. Tyler claims that the July 20 statement
should have been suppressed because it was obtained in
violation of his Sixth Amendment right to counsel and was
"the product of the initial illegalities that occurred on July
9th and 10th." Appellant's Br. at 44 (citing Wong Sun v.
United States, 371 U.S. 471 (1963)). The government
counters that Tyler's right to counsel was not violated
because Tyler initiated the questioning. We believe the
analysis that has been used to resolve allegations that
statements were tainted by a prior violation of the Fourth
and/or Fifth Amendment should also guide, though not
control, our inquiry into the failure to scrupulously honor
Tyler's right to remain silent, and the purported denial of
his right to counsel.8
_________________________________________________________________

7. Since we hold that the district court erred in admitting the 10:55
statement, we need not address Tyler's argument that the tactics used
by police amounted to a ploy to overcome his will that was the functional
equivalent of interrogation in violation of the rule enunciated in Rhode
Island v. Innis, 446 U.S. 291 (1980).

8. In his concurring opinion, Judge Alito states that "Tyler's brief did
not
seek suppression of the July 9 statement on constitutional grounds." See
Dissent at 24. However, Tyler states that the state troopers failed to
"scrupulously honor" his right to remain silent under Michigan v. Mosley.
See Appellant's Br. at 40. He also argues that police engaged in a
"continuing barrage of psychological ploys" to elicit statements after
10:55 p.m. on July 9, Appellant's Br. at 39. Therefore, he asserts a
constitutional violation under Mosley.

                                 10
When determining whether a suspect's Sixth Amendment
right to counsel has been violated, our standard of review
is plenary. Flamer v. Delaware, 68 F.3d 710, 720 (3d Cir.
1995). The Sixth Amendment right to counsel attaches"at
or after the time that judicial proceedings have been
initiated against [an individual] whether by way of formal
charge, preliminary hearing, indictment, information, or
arraignment." Brewer v. Williams, 430 U.S. 387, 398
(1977).

Here, Troopers Fenstermacher and Graham visited Tyler
in his cell at Adams County Jail on July 20, 1992 and
obtained an inculpatory statement from him. Tyler had
already been arraigned and his right to counsel had
attached.9

Trooper Fenstermacher testified that Tyler initiated the
meeting. App. at 298, 321-22. He stated that a guard, or
someone in a similar capacity, told him and Graham that
Tyler desired to make a statement.10 According to
Fenstermacher, Graham re-Mirandized Tyler, but did not
ask Tyler to sign a waiver of his Miranda rights. Graham
testified that Tyler was aware of his rights and chose not to
invoke them. The district court agreed.

We will analyze the legality of the July 20 statement both
under the theory that the statement was the illegal fruit of
the prior failure to honor Tyler's request that questioning
cease and in terms of the purported waiver of Tyler's right
to counsel. These two avenues of attack are similar, but not
identical. They do, however, converge into a single inquiry
-- the validity of the purported waiver on July 20.

1. Waiver

In denying Tyler's challenge to statements taken on July
20, the district court observed: "[T]here is nothing in the
record to support an argument that Defendant's waiver was
_________________________________________________________________

9. Counsel, however, was not appointed for Tyler until July 21, 1993.
App. at 392.

10. The district court made no finding as to the credibility of that
assertion although, as mentioned above, the court was skeptical of other
police testimony.

                                11
not knowingly made." D. Ct. Op. at 9. That statement
suggests that the district court required Tyler to prove that
the July 20 statement was not made pursuant to a valid
Miranda waiver, rather than requiring the government to
establish a valid waiver. The government, however, has the
burden of establishing that Tyler knowingly, voluntarily and
intentionally waived his Sixth Amendment right to counsel.
See Brewer, 430 U.S. at 404 ("[I]t [is] incumbent upon the
State to prove an `intentional relinquishment or
abandonment of a known right or privilege.' ") (citing
Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).

Here, the district court appears to have reversed that
burden. If the court did, it committed error. "[C]ourts
indulge every reasonable presumption against waiver of
fundamental constitutional rights."11

2. "Fruit of the Poisonous Tree"

In United States v. Bayer, 331 U.S. 532, 540-41 (1947),
the Supreme Court recognized that:

       After an accused has once let the cat out of the bag by
       confessing, no matter what the inducement, he is never
       thereafter free of the psychological and practical
       disadvantages of having confessed. He can never get
       the cat back in the bag. The secret is out for good. In
       such a case, a later confession may always be looked
       upon as fruit of the first.

The Court has, however, backed away from formulating an
absolute bar to the use of any subsequent statement. In
Oregon v. Elstad, 470 U.S. 298 (1985), the Court elaborated
upon the circumstances in which the cat may be put back
into the bag and a subsequent statement admitted despite
a prior violation of Miranda. The court there recognized that
the command that all questioning must cease once a
defendant asserts his or her right to remain silent under
Miranda cannot be interpreted to preclude all subsequent
_________________________________________________________________

11. We emphasize, however, that "[i]f an accused `knowingly and
intelligently' [communicates with officers without the aid of counsel] we
see no reason why the uncounseled statements he then makes must be
excluded at his trial." Patterson v. Illinois, 487 U.S. 285, 291 (1988).

                               12
questioning, nor to bar any subsequent statement
regardless of circumstances.

Here, the district court held that the July 20 statement
was purged of any prior taint solely because Miranda
warnings were given before that statement was taken. D.
Ct. Op. at 9. However, the fact that Miranda warnings may
have been given is only part of the analysis. It is necessary,
though not sufficient, to sustain the government's burden.
Accordingly, we cannot simply infer from the district court's
language that it found Tyler's purported waiver on July 20
to be knowing, voluntary, and intelligent. The court did not
make an inquiry that would be adequate to support such a
finding.

       Aside from its reliance upon the presence of the
       Miranda warnings, no specific aspect of the record or of
       the circumstances was cited by the court in support of
       its conclusion. The court, in other words, appears to
       have held that the Miranda warnings in and of
       themselves broke the causal chain . . . .

Brown v. Illinois, 422 U.S. 590, 597 (1975). "If Miranda
warnings, by themselves, were held to attenuate the taint of
an unconstitutional arrest, regardless of how wanton and
purposeful the . . . violation, the effect of the exclusionary
rule would be substantially diluted." Id. at 601. The same
is true of an unconstitutionally obtained statement. 12
_________________________________________________________________

12. In Patterson v. Illinois, 487 U.S. 285, 296-97 (1988) the Supreme
Court stated:

       As a general matter. . . an accused who is admonished with the
       warnings prescribed by this Court in Miranda . . . has been
       sufficiently apprised of the nature of his Sixth Amendment rights,
       and the consequences of abandoning those rights, so that his waiver
       on this basis will be considered a knowing and intelligent one.

However Patterson did not implicate a violation of the duty to
scrupulously honor an assertion of the protections afforded by Miranda.
Accordingly, the Court concluded that once it is established that a
defendant's decision to not rely on "his rights was uncoerced, that he at
all times knew he could stand mute and request a lawyer, and that he
was aware of the State's intention to use his statements to secure a
conviction, the analysis is complete and the waiver is valid as a matter

                               13
In Campaneria v. Reid, 891 F.2d 1014 (2d Cir. 1989), the
defendant was approached by police and investigators
several times while in the hospital recovering from a serious
knife wound. When police inquired as to whether he was
finally ready to give a statement, he responded that he was
not and told them to come back later. They responded by
insisting "if you want to talk to us, now is the time to do it."
Id. at 1017. Campaneria's Miranda rights were then read
and he gave a recorded statement. That statement, was
admitted at his trial along with others that he gave while
hospitalized, and he was convicted of manslaughter.
Campaneria appealed, arguing in part that the failure to
honor his assertion of his right to remain silent and the
coercive conditions in which the statements were taken,
should have precluded the prosecution from admitting the
recorded statement. The Court of Appeals for the Second
Circuit disagreed. The court reasoned that "[t]he purpose of
this prophylactic rule is to counter the inherently coercive
effects of custodial interrogations." Id. at 1021. The court
noted that, nevertheless, it is clear that "[q]uestioning can
be resumed after fresh Miranda warnings are given and the
right to remain silent is otherwise scrupulously honored."
Id. The court then noted several factors that must be
analyzed to determine whether there is a causal link
between the prior illegal statements and a subsequent
statement purportedly obtained pursuant to a valid waiver
of the right to remain silent and the right to counsel. These
factors include, but are not limited to, the passage of time,
the subject matter of the subsequent interrogation, and
whether the interrogators are "coercive or overbearing." Id.
at 1019-21.

In Johnson, we discussed the holding in Oregon v. Elstad,
470 U.S. 298, (1985). We noted that the Court
_________________________________________________________________

of law." Id. (internal quotation marks omitted) (citing Moran v. Burbine,
475 U.S. 412, 422-23, 1986).

Here, as we further discuss below, the court's inquiry on remand must
go beyond whether the defendant gave a knowing, voluntary and
intelligent waiver on July 20. The court must also consider whether
obtaining the waiver was consistent with Michigan v. Mosley, 423 U.S. at
104.

                               14
       [i]n Elstad specifically rejected the proposition that the
       fruit of the poisonous tree doctrine, which in the fourth
       amendment context requires the exclusion of evidence
       or confessions obtained as a result of a constitutional
       violation, extends to violations of the Miranda decision.
       Rather, the Court concluded that Miranda requires
       only that the circumstances surrounding a subsequent
       confession be evaluated to determine whether the
       confession was knowing and voluntary. The Court held
       further that a suspect's subsequent choice to waive his
       or her rights after a proper administration of Miranda
       warnings should ordinarily suffice to dissipate the
       coercive impact of the earlier confession and to
       demonstrate knowledge and voluntariness.

816 F.2d at 922-3 (internal quotation marks and citations
omitted). Here, on remand, the district court mustfirst
determine if the conduct of the police in obtaining the July
20 statement was consistent with their duty to
scrupulously honor Tyler's prior assertion of his right to
remain silent.13 If the court concludes that duty was not
breached, it must then consider the totality of
circumstances surrounding the July 20 statement and
determine if that statement was the result of a knowing,
voluntary and intelligent waiver of the protections implicit
in the Miranda warnings. Colorado v. Spring, 479 U.S. 564,
572-73 (1987). That inquiry must include, but not
necessarily be limited to, factors such as who initiated the
July 20 interrogation,14 the time that elapsed between the
two interrogations, the extent to which the same police
were involved in both interrogations, the manner in which
the July 20 interrogation was conducted, and any other
factor that is relevant to deciding whether police exploited
their prior disregard of Tyler's right to remain silent in
_________________________________________________________________

13. Obviously, that statement must be suppressed if the Commonwealth
does not meet its burden of demonstrating that police scrupulously
honored Tyler's prior assertion of his right to remain silent in taking
the
July 20 statement.

14. If police initiated the interrogation, or caused it to be initiated,
the
prosecution would be hard-pressed indeed to carry its burden of
establishing that interrogation was consistent with scrupulously
honoring Tyler's right to remain silent.

                               15
obtaining the July 20 statement. Thus, the inquiry must
include consideration of the extent to which the July 20
statement was the result of the prior misconduct that
resulted in the 10:55 pm statement. Although, as we noted
in Johnson, a valid waiver will "ordinarily suffice to
dissipate" a prior violation of Miranda, the district court's
inquiry can not ignore the prior violation in determining if
the subsequent waiver was valid. See Alston v. Redman, 34
F.3d 1237, 1253 (3d Cir. 1994) ("In assessing the validity of
the waiver, we must determine whether it was voluntary,
i.e. free of coercion or deception, and whether it was
knowing. Only if the totality of the circumstances
surrounding the interrogation reveal both an uncoerced
choice and the requisite level of comprehension may a court
properly conclude that the Miranda rights have been
properly waived.") (citations omitted) (internal quotation
marks omitted).

If the court concludes that the July 20 statement was
properly admitted, it must then decide if admission of the
10:55 pm statement was harmless error.

       Absent constitutionally impermissible coercion in
       eliciting an initial confession, the administration of
       adequate Miranda warnings before a subsequent
       voluntary confession validates that confession despite
       the fact that the earlier confession is inadmissible
       because the Miranda warnings that preceded it were
       inadequate

Johnson, 816 F.2d at 922. As noted above, the 10:55
statement is very similar to the July 20 statement. The
major difference appears to be that in the 10:55 statement
Tyler said his brother wanted to kill Proctor, but in the July
20 statement Tyler said that his brother only wanted to
scare her. In Johnson we ruled that admission of an oral
statement taken without proper Miranda warnings was
harmless error because the defendant gave a subsequent
written inculpatory statement after Miranda warnings were
administered. The similarity of the two statements there
lead us to conclude that "the jury . . . learned no more from
the improperly admitted confession than it did from the
properly admitted one." Johnson, 816 F.2d at 923. (internal
quotation marks omitted). A proper analysis may require a

                                16
similar conclusion here. On the other hand, the difference
between the two statements may lead the court to conclude
that there is sufficient distinction here to conclude that
admission of the 10:55 statement was not harmless.

In ruling that it is possible that admission of the 10:55
statement may constitute harmless error if the July 20
statement was properly admitted we stress two points.
First, we do not intend to suggest that we think the district
court should or should not conclude that the error was
harmless. Second, we do not mean to suggest that the
Commonwealth may always cure a failure to scrupulously
honor an accused's assertion of his right to remain silent
merely by subsequently administering Miranda warnings
during a defendant-initiated interview. We merely hold that,
under the circumstances here, that prior police misconduct
should be considered in determining the validity of the
subsequent "waiver."

IV.

For the reasons set forth herein, we will reverse the
district court's order of December 23, 1996 that partially
denied Tyler's suppression motion, and remand for a
hearing to determine the validity of the purported Miranda
waiver that resulted in the July 20 statement. If the court
concludes that the July 20 statement was properly
admitted, it will then decide if admission of the 10:55
statement amounted to harmless error.

                                17
ALITO, Circuit Judge, concurring.

I join parts I, II, and IIIA of the opinion of the court. I
agree that there is sufficient evidence to support Tyler's
conviction under 18 U.S.C. S 1512(c)(1)(A)(C) and that the
statements that Tyler made on July 9, 1992, should have
been suppressed because the interrogating officers did not
"scrupulously honor[ ]" Tyler's right under Miranda v.
Arizona, 384 U.S. 436 (1966), to cut off questioning.
Michigan v. Mosley, 423 U.S. 96, 104 (1975).

I also agree that a remand is necessary with respect to
Tyler's July 20 statement, but I write separately to explain
my understanding of the questions to be considered by the
district court on remand. I find it helpful to discuss
separately each of the discrete doctrines that are touched
upon in part IIIB of the majority opinion.

I.

At the outset, I think that   it is useful to identify exactly
which arguments relating to   the July 20 statement are
before us. In his motion to   suppress, Tyler said the
following about the July 20   statement:

       24. On July 20, 1992, eleven days after Mr. Tyler's
       arrest on murder and related charges, law enforcement
       officers proceeded to interrogate him at the Adams
       County Jail without the presence of counsel.

       25. On July 20, 1992, despite the fact that Mr. Tyler
       had been through the preliminary arraignment and had
       been sitting in jail for eleven days, law enforcement
       officers failed to get a written waiver of Mr. Tyler's
       Miranda rights.

       26. It is submitted herein that Mr. Tyler's
       statements were coerced and not knowingly,
       voluntarily, and intelligently made.

       27. These statements were obtained in violation of
       Mr. Tyler's constitutional rights. U.S. Const. Amend. V
       and U.S. Const. Amend. VI.

       28. In the alternative, Mr. Tyler would request that
       This Honorable Court suppress all statements made

                                 18
       after the invocation of his right to remain silent on July
       9, 1992, as fruits of the poisonous tree.

App. 37-38.

Thus, Tyler seems to have sought suppression of the July
20 statement on four separate grounds: (1) that th e officers
failed to obtain a written waiver of his Miranda rights,
(2) that Tyler did not knowingly, voluntarily, and
intelligently waive his Fifth Amendment rights to remain
silent, (3) that he did not knowingly, voluntarily, and
intelligently waive his Sixth Amendment rights to counsel,
and (4) that the July 20 statement should have bee n
suppressed under the "fruit of the poisonous tree" doctrine
based on the improper questioning on July 9.

The district court denied Tyler's motion to suppress the
July 20 statement and wrote:

       Defendant also seeks to suppress the statement he
       made to the authorities on July 20, 1992. Essentially,
       Defendant contends that because the officers failed to
       obtain a written Miranda waiver, we must suppress the
       statement. However, Defendant has not cited, and our
       research has not disclosed, a single case which held
       that the failure to obtain a written Miranda waiver is
       grounds for suppression of a defendant's statement
       where the defendant was verbally informed of his
       Miranda rights prior to making the statement.
       Moreover, there is nothing in the record to support an
       argument that Defendant's waiver was not knowingly
       made.

Dist. Ct. Op. at 8-9. Accordingly, the court expressly
rejected Tyler's first argument (that a written Miranda
waiver was needed), as well as his second and third
arguments (that he did not knowingly, voluntarily, and
intelligently waive his Fifth and Sixth Amendment rights).
The court did not expressly address Tyler's fourth argument
(i.e., that the July 20 statement should have been
suppressed as the fruit of a poisonous tree.)

The section of Tyler's appellate brief dealing with the July
20 statement reads as follows:

                               19
       On July 20, 1992, two of the same troopers who had
       previously violated Tyler's right to remain silent went to
       the prison where Tyler had been housed to interrogate
       him further. Tyler had been in prison for ten days, had
       been formally charged with criminal homicide and
       related offenses, and had been arraigned. Tyler's right
       to an attorney had already attached. In fact, just one
       day later, on July 21, 1992, an attorney was appointed
       to represent Tyler. (App. 392).

       The right to counsel "attaches at or after the
       initiation of adversary judicial proceedings - whether by
       way of formal charge, preliminary hearing, indictment,
       information, or arraignment." Nelson v. Fulcomer, 911
       F.2d 928, 941 (3rd Cir. 1990); see also Brewer v.
       Williams, 430 U.S. 387, 97 S.Ct. 1232 (1977); Kirby v.
       Illinois, 406 U.S. 682, 92 S.Ct. 1877 (1972). Presently,
       "adversarial judicial proceedings" had begun. Therefore,
       the Troopers violated Tyler's sixth amendment right to
       counsel and the statement should have been
       suppressed.

       Moreover, this statement was the product of the
       initial illegalities that occurred on July 9th and 10th.
       Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407
       (1963). As "fruits of the poisonous tree" this statement
       should be suppressed.

Appellant's Br. at 43-44. Consequently, Tyler's appellate
brief abandoned the first and second arguments made in
his suppression motion, i.e. that a written Miranda waiver
was necessary and that he did not knowingly, intelligently,
and voluntarily waive his Fifth Amendment rights to remain
silent. Tyler's brief instead relied entirely on the third and
fourth arguments made in the district court (i.e. that he did
not knowingly, intelligently, and voluntarily waive his Sixth
Amendment rights to counsel and that the July 20
statement should have been suppressed under the "fruit of
the poisonous tree" doctrine). I will now discuss each of
these arguments separately.

II.

A. I turn first to Tyler's contention that he did not
knowingly, voluntarily, and intelligently waive his Sixth

                               20
Amendment right to counsel prior to providing the July 20
statement. If Tyler was given Miranda warnings and orally
waived his Miranda rights prior to furnishing this
statement, then Tyler's argument is governed by Patterson
v. Illinois, 487 U.S. 285 (1988). In that case, the defendant,
after indictment, waived his Miranda rights and then
provided an incriminating statement without counsel
present. The defendant argued that he had not made a
"knowing and intelligent" waiver of his Sixth Amendment
rights (id. at 292), but the Supreme Court disagreed. The
Court identified the "key inquiry" as follows: "Was the
accused, who waived his Sixth Amendment rights during
postindictment questioning, made sufficiently aware of his
right to have counsel present during the questioning, and
of the possible consequences of a decision to forgo the aid
of counsel?" Id. at 292-93. The Court noted that "the
Miranda warnings given [the defendant] made him aware of
his right to have counsel present during the questioning."
Id. at 293. The Court further noted that "the Miranda
warnings also served to make [the defendant] aware of the
consequences of a decision by him to waive his Sixth
Amendment rights during postindictment questioning." Id.
The Court then concluded that "[a]s a general matter . . .
an accused who is admonished with the warnings
prescribed by this Court in Miranda . . . has been
sufficiently apprised of the nature of his Sixth Amendment
rights, and of the consequences of abandoning those rights,
so that his waiver on this basis will be considered a
knowing and intelligent one." Id. at 296 (emphasis added)
(footnote omitted). In a footnote, the Court pointed out that
"[t]his does not mean, of course, that all Sixth Amendment
challenges to the conduct of postindictment questioning will
fail whenever the challenged practice would pass
constitutional muster under Miranda." Id. at 296 n.9. The
Court then referred to a situation in which "a suspect was
not told that his lawyer was trying to reach him during
questioning" and a situation in which an undercover police
officer initiated a surreptitious conversation with an
unindicted suspect. Id.

In light of Patterson, the first question that the district
court should address on remand is whether Tyler was given
Miranda warnings and waived his Miranda rights. Trooper

                               21
Fenstermacher and Trooper Graham testified that Tyler was
given Miranda warnings and orally waived his rights. See
App. 255, 298. No contrary evidence in the record has been
called to our attention, and indeed Tyler's briefs do not
assert either that Miranda warnings were not administered
or that Tyler did not orally waive his Miranda rights.
Nevertheless, since the district court questioned the
accuracy of other parts of the officers' testimony, I agree
that we should remand for the district court to make an
explicit finding on this point. If the district court finds on
the basis of the record of the suppression hearing that Tyler
waived his Miranda rights, the court should then consider
whether there are any unusual circumstances present that
are comparable to those mentioned by the Supreme Court
in footnote 9 of Patterson.

B. If the district court finds, on the other hand, that
Tyler did not waive his Miranda rights, then Tyler's Sixth
Amendment argument should be analyzed under Brewer v.
Williams, 430 U.S. 387 (1977), and related cases. Under
these precedents, the test is whether all of the relevant
circumstances show "an intentional relinquishment or
abandonment of a known right or privilege.' " Id. at 404
(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

III.

The other argument that is properly before us is whether
the July 20 statement must be suppressed under the "fruit
of the poisonous tree" doctrine, which developed in Fourth
Amendment cases. See e.g., Wong Sun v. United States, 371
U.S. 471, 484-88 (1963) (suppressing statements and
tangible evidence resulting from an unconstitutional arrest).
The Supreme Court addressed this question in Oregon v.
Elstad, 470 U.S. 298 (1985). In that case, the defendant
was arrested and made an incriminating statement without
having been given Miranda warnings. He was later given
such warnings, waived his Miranda rights, and executed a
written confession. Relying on the "fruit of the poisonous
tree" doctrine, the state appellate court held that the
written confession had to be suppressed. The state court
reasoned that, even though the written confession did not
result from "actual compulsion," "the coercive impact of the

                                22
unconstitutionally obtained statement remains, because in
a defendant's mind it has sealed his fate." Oregon v. Elstad,
658 P.2d 552, 554 (1983). The state court wrote that,
because of the brief period separating the two incidents,
"[t]he cat was sufficiently out of the bag to exert a coercive
impact on [the] defendant's later admissions." Id. at 555.

The United States Supreme Court reversed, holding that
the "fruit of the poisonous tree" doctrine does not apply
when the "poisonous tree" consists of a violation of the
prophylactic Miranda rule. The Court noted that if an initial
confession is actually coerced, in violation of the Fifth
Amendment itself, "the time that passes between
confessions, the change in place of interrogations, and the
change in identity of the interrogators all bear on whether
that coercion has carried over into the second confession."
470 U.S. at 310. But when an initial confession must be
suppressed simply because it is obtained in violation of
Miranda, "[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." Id. at 314.

Our court applied the teaching of Elstad in United States
v. Johnson, 816 F.2d 918, 922-23 (3d Cir. 1987). We wrote:
"Absent constitutionally impermissible coercion in eliciting
an initial confession, the administration of adequate
Miranda warnings before a subsequent voluntary
confession validates that confession despite the fact that
the earlier confession is inadmissible because the Miranda
warnings that preceded it were inadequate." Id. at 922. On
that basis, we affirmed the conviction of the defendant, who
had provided an initial oral confession that he claimed was
obtained in violation of Miranda, as well as a subsequent
written confession furnished after adequate Miranda
warnings and a waiver. We held that even if the first, oral
confession had to be suppressed under Miranda, the
second, written confession was nevertheless admissible,
and that any error in admitting the oral statement at trial
was harmless. Id. at 922-23.

In view of Elstad and Johnson, it is apparent that the
defendant's invocation of the Fourth Amendment "fruit of

                               23
the poisonous tree" doctrine is inapposite, and I am fearful
that confusion may result from the majority's reference to
"fruit of the poisonous tree" precedents such as Brown v.
Illinois, 422 U.S. 590 (1975). See Maj. Op. at 12-13. The
majority quotes Brown's statement to the effect that
Miranda warnings by themselves may not be sufficient to
"attenuate the taint of an unconstitutional arrest.' " Maj.
Op. at 13 (quoting Brown 422 U.S. at 602). And the
majority observes that "[t]he same is true of an
unconstitutionally obtained statement." Maj. Op. at 13.
However, while it is true, as Elstad itself pointed out (see
470 U.S. at 310), that the taint of an unconstitutionally
obtained statement may not always be attenuated by
Miranda warnings, this rule is inapplicable when the initial
illegality consists of a violation of the Miranda prophylactic
rule.

It is true that the type of Miranda violation in Elstad
(questioning a suspect in custody without first providing
Miranda warnings) is somewhat different from the type of
Miranda violation that occurred here on July 9 (failing
scrupulously to honor Tyler's invocation of his right to
remain silent by obtaining a Miranda waiver and
questioning him shortly after he initially invoked that right).
But I see no basis for concluding that Elstad is not equally
applicable in this context. The violation that we have held
occurred on July 9 was a type of Miranda violation, not a
violation of any of Tyler's constitutional rights. Indeed,
Tyler's brief did not seek suppression of the July 9
statement on constitutional grounds. See Appellant's Br. at
37-43.

Applying Elstad and Johnson, the question to be
addressed by the district court on remand is whether the
July 20 statement was preceded by a valid Miranda waiver.
If it was, then the Miranda violation on July 9 provides no
ground for suppressing the July 20 statement.

IV.

Although Tyler has not presented this argument in so
many words, the majority seems to interpret his
submissions as raising an additional argument that it is

                               24
related to, but conceptually distinct from the argument just
discussed. This additional argument is that the July 20
statement must be suppressed under Michigan v. Mosley
because, in questioning Tyler on July 20 after he had
previously invoked his Miranda rights on July 9, the
troopers did not "scrupulously honor[ ]" his Miranda rights.
See Maj. Op. at 14-16 & n.11. This argument is
conceptually distinct from the Elstad argument addressed
above because it is not dependent on the existence of a
Miranda violation -- or any other type of violation -- on
July 9: even if the police scrupulously follow Miranda in the
initial questioning of a suspect, a Michigan v. Mosley
violation may ensue if the defendant invokes his right to
remain silent and the police seek to question him shortly
thereafter. See Michigan v. Mosley, 423 U.S. at 102 ("To
permit the continuation of custodial interrogation after a
momentary cessation would clearly frustrate the purposes
of Miranda by allowing repeated rounds of questioning to
undermine the will of the person being questioned.").

In addressing this Michigan v. Mosley issue on remand,
the first question that the district court should address is
whether Tyler or the troopers initiated the July 20
interview. Trooper Fenstermacher testified that it was his
recollection that he and Trooper Graham went to the prison
and spoke to Tyler because they received word from a
prison guard that Tyler wanted to talk with them. App. 298,
321. Tyler contends that Fenstermacher's testimony was
"questionable at best" (Appellant's Reply Br. at 12), but no
contrary evidence in the record has been called to our
attention. Whether Fenstermacher's testimony is to be
believed is a question of fact that the district court should
resolve on remand based on the record of the suppression
hearing and the court's assessment of Fenstermacher's
credibility.

If the district court finds that Tyler initiated the July 20
interview, Michigan v. Mosley does not provide a basis for
suppressing any statements that Tyler made on that day.
On the other hand, if the district court finds that the
troopers initiated the July 20 interview, the admissibility of
the July 20 statement will turn on an application of the
standard set out in Michigan v. Mosley and the subsequent
related cases.

                               25
V.

If the district court concludes that the July 20 statement
was admissible, then the district court must decide in the
first instance whether the admission of the July 9
statement was harmless error. The two statements are
substantively very similar, and while the earlier statement
incriminated Tyler's brother David to a somewhat greater
degree than did the later statement, see Maj. Op. at 16,
Tyler has not yet explained why the earlier statement was
any more incriminating to him. Nevertheless, I agree with
my colleagues that it is best that we not resolve this
question at this time. Until the district court has made the
findings necessary to decide whether the July 20 statement
is itself admissible, we cannot be sure whether the
harmless error issue will ever be reached. In addition, the
trial court, which presumably has greater familiarity with
the entire record of this case, has yet to make an initial
ruling on the harmless error question, and it may be that
further briefing and argumentation by counsel on this
question at the district court level may provide additional
illumination. Accordingly, I agree with my colleagues that
we should remand this case to the district court for the
findings and other determinations that I have mentioned
and, if necessary, for a decision by the district court in the
first instance as to whether the erroneous admission of the
July 20 statement was harmless.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               26
