     11-2201(L)
     United States v. Taylor

 1                       UNITED STATES COURT OF APPEALS
 2
 3                             FOR THE SECOND CIRCUIT
 4
 5                                August Term, 2013
 6
 7
 8      Argued: February 4, 2013      Decided: December 4, 2013
 9           Petition for Rehearing Filed: January 17, 2014
10                       Decided: March 4, 2014
11
12         Docket Nos. 11-2201(L), 11-2426(CON), 11-2639(CON)
13
14   - - - - - - - - - - - - - - - - - - - -x
15
16   UNITED STATES OF AMERICA,
17
18                     Appellee,
19
20               - v.-
21
22   CURTIS TAYLOR, ANTONIO ROSARIO, AKA Chickee, SAMUEL VASQUEZ,
23   AKA Rock,
24
25                     Defendants-Appellants.
26
27   - - - - - - - - - - - - - - - - - - - -x
28

29         Before:             KEARSE, JACOBS and CARNEY,
30                             Circuit Judges.
31
32         Curtis Taylor, Antonio Rosario, and Samuel Vasquez

33   appeal the judgments of the United States District Court for

34   the Southern District of New York (Marrero, J.), convicting

35   them of various charges related to a robbery of a pharmacy

36   in midtown Manhattan.         Because Taylor’s post-arrest

37   statements were not voluntary, and were not properly
1    redacted, the convictions are VACATED, and the case is

2    REMANDED for a new trial.

 3                               KELLEY J. SHARKEY, Brooklyn, New
 4                               York, for Defendant-Appellant
 5                               Curtis Taylor.
 6
 7                               JILLIAN S. HARRINGTON, Monroe
 8                               Township, New Jersey, for
 9                               Defendant-Appellant Antonio
10                               Rosario.
11
12                               COLLEEN P. CASSIDY, Federal
13                               Defenders of New York, Inc., New
14                               York, New York, for Defendant-
15                               Appellant Samuel Vasquez.
16
17                               CHRISTOPHER D. FREY (Michael
18                               Bosworth, on the brief),
19                               Assistant United States
20                               Attorneys, for Preet Bharara,
21                               United States Attorney for the
22                               Southern District of New York,
23                               New York, New York, for
24                               Appellee.
25
26   DENNIS JACOBS, Circuit Judge:
27
28       The United States petitions for rehearing following our

29   decision in United States v. Taylor, 736 F.3d 661 (2d Cir.

30   2013).   The petition is granted, and the opinion filed

31   December 4, 2013 is withdrawn.      For the reasons that follow

32   in our revised opinion, we vacate the convictions of the

33   three defendants and remand for a new trial.

34       Curtis Taylor, Antonio Rosario, and Samuel Vasquez

35   appeal judgments of conviction entered in the United States

                                     2
1    District Court for the Southern District of New York

2    (Marrero, J.) for conspiring to commit Hobbs Act robbery and

3    brandishing a firearm during a crime of violence, among

4    other offenses related to the robbery of a pharmacy in

5    midtown Manhattan.   Taylor, who claims to have attempted

6    suicide by pills as he was arrested, argues that he was

7    incapacitated when he incriminated himself post-arrest, and

8    that the court’s decision to admit those statements into

9    evidence violated his rights under Miranda v. Arizona, 384

10   U.S. 436 (1966), and the Due Process Clause of the

11   Constitution.   Rosario and Vasquez, who raise separate

12   issues, join Taylor’s challenge to the extent that Taylor’s

13   confession was used against them, and appeal the denial of

14   their motion to sever on the ground that Taylor’s statements

15   caused prejudicial spillover and violated the confrontation

16   right protected under Bruton v. United States, 391 U.S. 123

17   (1968).

18       This is a close case.   But even assuming that Taylor’s

19   initial waiver of his Miranda rights was knowing and

20   voluntary, Taylor was largely stupefied when he made his

21   post-arrest statements, as confirmed by the testimony of the

22   law enforcement agents and the pretrial services officer who


                                   3
1    interviewed him, and by the evaluations of staff

2    psychologists at the Metropolitan Correctional Center

3    (“MCC”).   The agents and officer testified that Taylor fell

4    asleep repeatedly during questioning and was only

5    intermittently alert.   Although their testimony also

6    suggests--and the district court found--that Taylor’s

7    incriminating statements were made in relatively lucid

8    intervals, Taylor was impaired throughout, and his

9    interrogators took undue advantage of that impairment by

10   continuing to question him.   We therefore conclude that

11   Taylor’s post-arrest statements were not voluntary.     We

12   further conclude that admitting those statements into

13   evidence was not harmless.    His conviction is therefore

14   vacated and remanded for a new trial.   And because Taylor’s

15   statements were redacted in a manner that left obvious

16   indicia that the co-defendants’ names had been deleted,

17   their convictions are also vacated and remanded for a new

18   trial.

19                                  I

20       On Christmas Eve 2008, Vasquez drove Taylor and Rosario

21   from the Bronx to midtown Manhattan to rob a pharmacy.       With

22   them was Luana Miller, a drug addict from Mississippi with

23   an extensive criminal history.

                                    4
1        En route, Miller called the pharmacy and asked them to

2    stay open for a few minutes past 5:00 PM, so that she could

3    pick up a prescription.   At the pharmacy, Miller went in

4    first, posing as a customer.   As she spoke with the

5    pharmacist, Rosario burst in the door brandishing a gun,

6    screaming that it was a robbery, and demanding OxyContin: a

7    powerful opioid for pain that is often resold illegally.

8    The two took more than $12,000 of controlled substances, as

9    well as cash and subway cards, while Taylor stood lookout at

10   the front door and Vasquez waited in the getaway car.   The

11   crew then drove back to the Bronx.   Cell phone records for

12   Taylor, Rosario, and Vasquez show that they were in the

13   Bronx that afternoon, traveled to midtown Manhattan just

14   before 5:00 PM, stayed near the pharmacy until just after

15   the robbery, and then returned to the Bronx.

16       While executing a warrant at the home of Miller’s

17   boyfriend in January 2009, police arrested her on

18   outstanding warrants.   Fearing extradition to Mississippi,

19   she offered to cooperate with the government’s investigation

20   of the pharmacy robbery, and led police to Taylor, Rosario,

21   and Vasquez.

22       Around 6:00 AM on April 9, 2009, over 25 NYPD and FBI

23   agents came to Taylor’s apartment to effect his arrest.

                                    5
1    Taylor claims that, amid the ensuing chaos, he attempted

2    suicide by taking a bottle-full of Xanax pills.   Taylor’s

3    daughter testified that her mother (who died before trial)

4    reported the overdose to an officer who dismissed her and

5    told her to “shut up.”   Still, the record is less than clear

6    as to whether Taylor actually took the pills, and as to

7    whether officers were told of his overdose.

8        Around 9:30 that morning, Taylor was interviewed at FBI

9    headquarters in downtown Manhattan by New York City Police

10   Department Detective Ralph Burch, a member of an FBI/New

11   York health care fraud task force.   Taylor signed a form

12   waiving his Miranda rights, and went on to give a lengthy

13   statement confessing his involvement in the robbery.

14       Taylor argues that he was falling asleep and was at

15   times unconscious during the interview.   Detective Burch

16   said that it seemed like Taylor’s body was “somewhat

17   shutting down” during the two- to three-hour interview.

18   Supplemental App. 51.    On the other hand, Burch testified

19   that, though Taylor nodded off at times, he was “coherent”

20   and “fluid” when he was awake and speaking:

21            Mr. Taylor at times was nodding off during the
22            interview. When we asked Mr. Taylor to listen up,
23            that we were asking him questions, he would
24            respond that he knew what he was being asked and
25            he would repeat the questions back to us to show

                                    6
1               that he was understanding what was being asked of
2               him and knew what was going on.
3
4    Id. at 45.      Detective Burch clarified that Taylor did not

5    need to be awakened during the interview; he just had to be

6    “refocused.”     Id. at 46.   “He seemed like he was dozing off,

7    and we had to stress did he understand what was going on.

8    . . .    [I]t was my impression that he knew what was going on

9    then.”    Id.

10          Taylor was later taken to a hospital for medical

11   clearance before his transfer into the custody of the

12   Marshals Service.     FBI Special Agent Ian Tomas, who was also

13   involved in the interrogation, explained that Taylor was

14   taken to the hospital because “[t]here was some talk about

15   him on some medication and possibly an injury he had

16   sustained previous at a construction site.”     Id. at 137.

17   Agent Tomas clarified that the hospital visit was necessary

18   because there was some question as to whether the Marshals

19   Service would take custody of someone who “might be off”:

20   “We felt that his do[z]ing off might be a reason the

21   marshals wouldn’t accept the custody of Mr. Taylor.”      Id. at

22   160.    Taylor spent the rest of the day at the hospital

23   sleeping, but he did not receive medical attention.       He was

24   transferred to the MCC later that evening.


                                      7
1        The next morning, April 10, Taylor met with MCC staff

2    psychologists.      The MCC’s chief psychologist, Dr. Elissa

3    Miller, explained that they wanted to evaluate Taylor before

4    his arraignment because they knew of Taylor’s earlier

5    schizophrenia diagnosis and several prior attempts at

6    suicide.   According to Dr. Miller (who reported on findings

7    by staff psychologists), Taylor “presented with a thought

8    disorder,” drooled, was vague, stared blankly, and “[h]is

9    thoughts lacked spontaneity.”        Id. at 110.   Miller testified

10   that “if you asked him questions, he really couldn’t

11   elaborate on them because his thought process was impaired.”

12   Id. at 111.

13       Taylor also told one of the staff psychologists that

14   “the day he was arrested by the FBI, he took multiple Xanax

15   pills in an attempt to kill himself because he had promised

16   himself that he would never go back to jail.”        Id. at 113.

17   Taylor told Miller that, “[a]s a result of taking all those

18   Xanax pills, he . . . wasn’t waking up and he went to the

19   hospital.”    Id.

20       He was then taken to the courthouse for arraignment.

21   While awaiting arrival of a pretrial services officer,

22   Taylor told Agent Tomas that “he wanted to clear up some

23   issues about the charges that he was presented with.”        Id.

                                      8
1    at 139.   Agent Tomas took Taylor to an interview room and

2    again advised him of his Miranda rights; Taylor confessed to

3    the robbery again.

4        Around 12:30 PM that day, Taylor met with Dennis

5    Khilkevich, a pretrial services officer.    Khilkevich

6    testified that when he arrived for the interview, Taylor

7    “appeared sleepy and had to be awakened to be interviewed.”

8    Id. at 319.   “He was sitting in a chair and he appeared as

9    if he was asleep or he was taking a nap.”    Id.   Khilkevich

10   stopped the interview because Taylor “repeatedly fell asleep

11   in the chair.”   Id. at 320.   When the interview resumed,

12   Taylor “was initially responsive maybe for several minutes,”

13   but “[t]hen he continued to fall asleep.”    Id.   “He had to

14   be woken up and he would be responsive for a few minutes and

15   then he would go to sleep again.”   Id.    Khilkevich

16   eventually finished the interview, explaining that Taylor

17   was awake and coherent “[a]t times.”   Id. at 323.

18       As to the other defendants:

19       •     Rosario was also arrested on April 9, 2009, and

20             waived his Miranda rights.   He claimed at first

21             that he was in the hospital the day of the

22             robbery, but then said he had actually been at his

23             girlfriend’s house in Queens.    When told that a

                                    9
1             surveillance video showed a suspect like him,

2             Rosario laughed and ambiguously said “yeah.”

3             Trial Transcript (“Tr.”) 571.

4        •    Vasquez was arrested a day earlier, on April 8,

5             after surveillance linked him to the car believed

6             to have been used in the pharmacy robbery.     When

7             arrested, he was carrying car keys, a cell phone,

8             and a piece of paper listing various milligram

9             doses of oxycodone and OxyContin, along with the

10            number of pills of each dose.   Vasquez gave no

11            statement to police.

12       The indictment charged the three with (1) conspiracy to

13   commit Hobbs Act robbery, in violation of 18 U.S.C. §

14   1951(b)(1); (2) Hobbs Act robbery; and (3) use, possession,

15   and brandishing of a firearm during a crime of violence, in

16   violation of 18 U.S.C. § 924(c)(1)(A)(ii).   Taylor was

17   additionally charged with (4) fraudulent acquisition of

18   controlled substances by passing forged prescriptions, in

19   violation of 21 U.S.C. § 843(a)(3).

20       Taylor moved to suppress his two post-arrest statements

21   on the ground that his Miranda waivers and his post-arrest

22   statements were neither knowing nor voluntary.   The

23   testimony summarized above was given at the suppression

                                  10
1    hearing (starting April 23, 2010, continuing May 4, 2010,

2    and concluding May 6, 2010).    The district court denied

3    suppression of Taylor’s post-arrest statements, finding that

4    the government sustained its burden of proving that Taylor’s

5    Miranda waivers were “informed and voluntary.”    Supplemental

6    App. 385.    The court found that the testimony of the law

7    enforcement agents was consistent, corroborated, and

8    truthful.    Id. at 386-87.

9        The court rejected the argument that Taylor’s

10   incapacitation rendered his post-arrest statements

11   involuntary:

12               [T]he defense does not allege that the government
13               failed to read Mr. Taylor [his] rights before
14               questioning began or any other coercion. Even
15               were the Court to assume that Mr. Taylor ingested
16               a large quantity of Xanax shortly before his
17               arrest, the Court credits the testimony from the
18               government’s witnesses that Mr. Taylor was
19               sufficiently lucid during the questioning that his
20               waiver of Miranda rights was knowing and
21               voluntary.
22
23               The fact that there is evidence that Mr. Taylor
24               nodded off from time to time during the
25               questioning does not persuade the Court that
26               during those portions of the testimony when he was
27               awake and lucid he could not have voluntarily and
28               knowingly waived his Miranda rights.

29   Id. at 387-88.    The district court went on to explain that

30   it did “not equate nodding off intermittently with total

31   psychotic episodes of hallucination and other extreme

                                    11
1    circumstances that might throw greater doubt on the

2    defendant’s ability to voluntarily and knowingly waive his

3    rights.”   Id. at 388.

4        Taylor’s statements, which implicated Rosario and

5    Vasquez, were redacted at trial to remove their names.     The

6    jury was instructed that Taylor’s statements should be

7    considered only as to Taylor.

8        In December 2010, the jury convicted on all counts.

9    Taylor was sentenced principally to 200 months’

10   imprisonment, Rosario was sentenced principally to 180

11   months, and Vasquez was sentenced principally to 170 months.

12   They all filed timely notices of appeal.

13

14                                   II

15       The main issue on appeal is whether Taylor’s Miranda

16   waivers on April 9 and April 10, and his post-arrest

17   statements on each of those dates, were knowing and

18   voluntary.   “We review a district court’s determination

19   regarding the constitutionality of a Miranda waiver de novo

20   and a district court’s underlying factual findings for clear

21   error.”    United States v. Carter, 489 F.3d 528, 534 (2d Cir.

22   2007).


                                     12
1        A statement made by the accused “during a custodial

2    interrogation is inadmissible at trial unless the

3    prosecution can establish that the accused in fact knowingly

4    and voluntarily waived [Miranda] rights when making the

5    statement.”    Berghuis v. Thompkins, 560 U.S. 370, 382 (2010)

6    (internal quotation marks omitted).   “The existence of a

7    knowing and voluntary waiver does not, however, guarantee

8    that all subsequent statements were voluntarily made.”    In

9    re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d

10   177, 211-12 (2d Cir. 2008); see also Dickerson v. United

11   States, 530 U.S. 428, 444 (2000) (“The requirement that

12   Miranda warnings be given does not, of course, dispense with

13   the voluntariness inquiry.”).

14       We look at the totality of circumstances surrounding a

15   Miranda waiver and any subsequent statements to determine

16   knowledge and voluntariness.    See Oregon v. Elstad, 470 U.S.

17   298, 309 (1985).   In that context, “knowing” means with full

18   awareness of the nature of the right being abandoned and the

19   consequences of abandoning it, and “voluntary” means by

20   deliberate choice free from intimidation, coercion, or

21   deception.    United States v. Plugh, 648 F.3d 118, 127 (2d

22   Cir. 2011), cert. denied, 132 S. Ct. 1610 (2012).   The



                                     13
1    government bears the burden of proof.    Colorado v. Connelly,

2    479 U.S. 157, 168-69 (1986).

3

4        The analysis applicable to April 9 differs somewhat

5    from the analysis applicable to April 10.

6        April 9.    In general, a suspect who reads,

7    acknowledges, and signs an “advice of rights” form before

8    making a statement has knowingly and voluntarily waived

9    Miranda rights.    See Plugh, 648 F.3d at 127-28.   Before

10   making his April 9 statement, Taylor was given Miranda

11   rights using an “advice of rights” form.    He was read every

12   right, voiced his understanding, and signed the form.    At

13   the time, according to Detective Burch, Taylor had a “fluid”

14   demeanor, “knew what was going on,” and “understood what was

15   happening.”    Supplemental App. 15.   This evidence, credited

16   by the district court, supports the conclusion that Taylor

17   knowingly and voluntarily waived his Miranda rights before

18   speaking with law enforcement on April 9.

19       But even accepting that Taylor’s April 9 Miranda waiver

20   was knowing and voluntary, we must nonetheless determine

21   whether the inculpatory statements themselves were

22   voluntary.    Dickerson, 530 U.S. at 444.   “A confession is


                                    14
1    not voluntary when obtained under circumstances that

2    overbear the defendant’s will at the time it is given.”

3    United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991).

4    The voluntariness inquiry should examine “the totality of

5    all the surrounding circumstances, including the accused’s

6    characteristics, the conditions of interrogation, and the

7    conduct of law enforcement officials.”   Id.   An individual’s

8    mental state should be considered in the voluntariness

9    inquiry to the extent it allowed law enforcement to coerce

10   the individual.   Connelly, 479 U.S. at 164-65; see also

11   United States v. Salameh, 152 F.3d 88, 117 (2d Cir. 1998)

12   (per curiam).

13       The record indicates that Taylor’s April 9 statement

14   was made when he was unable to summon the will to make a

15   knowing and voluntary decision; his will was overborne.

16       It is difficult to determine whether a confession is

17   voluntary; case law “yield[s] no talismanic definition” for

18   the term.   Schneckloth v. Bustamonte, 412 U.S. 218, 224

19   (1973).   It is clear, however, that when “a person is

20   unconscious or drugged or otherwise lacks capacity for

21   conscious choice,” a confession cannot be voluntary.     Id.

22   (internal quotation marks omitted); see also United States



                                   15
1    ex rel. Burns v. LaVallee, 436 F.2d 1352, 1355-56 (2d Cir.

2    1970) (holding a written confession to be involuntary when

3    given “after over eighteen hours of uninterrupted custodial

4    interrogation, after he had been without sleep, and almost

5    without food, for thirty hours”).

6           Taylor claims he was mentally incapacitated during the

7    April 9 interview because of the quantity of Xanax pills he

8    ingested immediately before his arrest.      That claim finds

9    support in the record.    Detective Burch testified that

10   Taylor’s body “was somewhat shutting down,” and that “at

11   that time that he was answering questions . . . his body was

12   giving up on him.”    Supplemental App. 51.    The district

13   court credited this testimony.       Granted, Burch also

14   testified that, when Taylor was speaking, he was “coherent”

15   and understood what was going on when he was not nodding

16   off.    Id.   But it nonetheless appears that Taylor fell

17   asleep at least two or three times during the interview, and

18   the officers repeatedly had to awaken him, or (to use the

19   nicer term) “refocus” him--at one point coaxing him, “Mr.

20   Taylor, you have to answer our questions and focus with us.”

21   Id. at 47.    Agent Tomas corroborated that Taylor was “a

22   little bit out of it” and dozing off.      Id. at 158-61.


                                     16
1        In Mincey v. Arizona, 437 U.S. 385 (1978), statements

2    by a defendant who was hospitalized were ruled involuntary.

3    The Court observed that the defendant was in intensive care

4    for a serious wound and was “evidently confused and unable

5    to think clearly about either the events of that afternoon

6    or the circumstances of his interrogation.”   Id. at 398.

7    The statements were “the result of virtually continuous

8    questioning of a seriously and painfully wounded man on the

9    edge of consciousness.”   Id. at 401; see also id. (“But

10   despite [the accused’s] entreaties to be let alone, [the

11   police officer] ceased the interrogation only during

12   intervals when [the accused] lost consciousness or received

13   medical treatment, and after each such interruption returned

14   relentlessly to his task.”).

15       On the other hand, in Salameh, we rejected a claim that

16   a statement was involuntary, even though the accused claimed

17   that prior to being taken into U.S. custody, he had been

18   incarcerated in Egypt and tortured for ten days.   152 F.3d

19   at 117.   Despite the accused’s weakened mental state, his

20   statements were voluntary because he did “not contend that

21   federal agents either mentally or physically coerced his

22   remarks during that interrogation.”   Id.; see also Plugh,



                                    17
1    648 F.3d at 128 (statements voluntary because defendant “was

2    never threatened physically or psychologically abused in any

3    manner, or made any type of promises such that his will was

4    overborne”) (internal quotation marks omitted).

5        One difference between Mincey and Salameh is the

6    presence in Mincey of police overreaching, see Connelly, 479

7    U.S. at 157 (stressing the "crucial element of police

8    overreaching" in assessing voluntariness), and that is no

9    doubt a difficult issue here.        Continued questioning of a

10   sleep-deprived suspect can be coercive, depending on the

11   circumstances, see, e.g., Mincey, 437 U.S. at 401; LaVallee,

12   436 F.2d at 1355-56; but the decisive issue is whether the

13   will was “overborne” by the police, so that the defendant is

14   not using such faculties as he has.       The conditions in which

15   Taylor was questioned do not appear to have been abusive;1

16   but there is little difference in effect between sleep

17   deprivation as a technique and the relentless questioning of

18   a person who is obviously unable to focus or stay awake for

19   some other reason.

20

          1
            The law enforcement agents, though persistent in
     interrogating Taylor and summoning him to alertness as he
     continued to fall asleep, do not appear to have acted
     maliciously or abusively during the interrogation.
                                     18
1        The district court credited testimony that Taylor was

2    coherent at times.     One such interval is when Taylor signed

3    the “advice of rights” form on April 9, a finding that we do

4    not disturb.    But as that interview progressed, it became

5    clear to the officers (as their testimony confirms) that

6    Taylor was in and out of consciousness while giving his

7    statement, and in a trance or a stupor most of the time when

8    not actually asleep.    Thus, the officers’ persistent

9    questioning took undue advantage of Taylor’s diminished

10   mental state, and ultimately overbore his will.

11   Accordingly, we conclude that Taylor’s statement on April 9

12   was not voluntary and should have been suppressed.

13

14       April 10.    On the morning of April 10, Taylor himself

15   initiated contact with law enforcement by notifying Agent

16   Tomas that “he wanted to clear up some issues about the

17   charges that he was presented with.”     Supplemental App. 139.

18   He was then orally re-advised of his rights, orally waived

19   them, and gave an additional statement, altering some

20   aspects of his April 9 account.      Although Taylor continued

21   to slip in and out of consciousness that day, Agent Tomas

22   testified that, when Taylor spoke to the agents mid-morning,


                                     19
1    he was “much more alert” than he had been the day before.2

2    Id. at 139-42.   But because Taylor’s first confession on

3    April 9 was the product of coercion, we must determine

4    whether his second waiver and confession, less than twenty-

5    four hours later, were rendered involuntary based, at least

6    in part, on the "taint clinging to the first confession."

7    Anderson, 929 F.2d at 102.

8        “[T]he use of coercive and improper tactics in

9    obtaining an initial confession may warrant a presumption of

10   compulsion as to a second one, even if the latter was

11   obtained after properly administered Miranda warnings."

12   Tankleff v. Senkowski, 135 F.3d 235, 245 (2d Cir. 1998)

13   (internal quotation marks omitted).   That is so because,

14   “after an accused has once let the cat out of the bag by

15   confessing, no matter what the inducement, he is never

16   thereafter free of the psychological and practical

17   disadvantages of having confessed.”   United States v. Bayer,

18   331 U.S. 532, 540 (1947).

19       “In deciding whether a second confession has been

20   tainted by the prior coerced statement, ‘the time that

21   passes between confessions, the change in place of

          2
            As discussed further below, it is not at all clear
     that Taylor was appreciably more alert.
                                   20
1    interrogations, and the change in identity of interrogators

2    all bear on whether that coercion has carried over into the

3    second confession.’”   Anderson, 929 F.2d at 102 (quoting

4    Elstad, 470 U.S. at 310).     Less than a day passed between

5    Taylor’s first and second confessions, and in that interval,

6    Taylor was hospitalized or unconscious most of the time.

7    Although the venue of the interrogations differed, Agent

8    Tomas was present at both--and it was to Agent Tomas that

9    Taylor addressed his request to “clear up some issues.”       The

10   taint of the prior involuntary confession carried over to

11   Taylor’s second waiver and statement, burdening both with a

12   “presumption of compulsion.”     Tankleff, 135 F.3d at 245.

13       That presumption is reinforced by uncontradicted

14   testimony regarding Taylor’s lingering mental incapacity on

15   April 10.    Taylor continued to doze off that morning and was

16   alert only “at times.”     Supplemental App. 162.   Just before

17   the April 10 interview, FBI Special Agent Steven Jensen saw

18   Taylor “slouched in his chair, and he appeared to be

19   sleeping.”   Id. at 247.     When asked for how long Taylor was

20   asleep, Agent Jensen explained (ambiguously) that it was “in

21   excess of minutes.”    Id.

22


                                      21
1           Although the record does not suggest that Taylor fell

2    asleep during the April 10 interview, there is evidence

3    that, throughout the day on April 10, Taylor remained in a

4    fog.    Dr. Miller reported that Taylor was mentally impaired

5    on the morning of April 10 and could not adequately respond

6    to questions:

 7              When he was seen, he presented with a thought
 8              disorder. He was noted to be picking at his
 9              nails. He was drooling. He was vague in his
10              responses to questioning. He presented with what
11              we call a flat affect . . . just kind of flat and
12              blank-face stare.
13
14              He could not elaborate on questions asked. His
15              thoughts lacked spontaneity. His speech was
16              vague. When we would ask him certain questions
17              about whether he was hearing voices, he couldn’t
18              really elaborate on his responses.
19
20   Id. at 110.    Dr. Miller also reported the observation made

21   by psychologists in her division: “[I]f you asked him

22   questions, he really couldn’t elaborate on them because his

23   thought process was impaired.”      Id. at 111.

24          Dennis Khilkevich, a pretrial services officer who

25   interviewed Taylor at around 12:30 PM on April 10, found

26   Taylor drowsy and in need of rousing.     See id. at 319 (“He

27   was sitting in a chair and he appeared as if he was asleep

28   or taking a nap.”).    When Khilkevich tired of waking him up,

29   he suspended the interview; and when he resumed, Taylor

                                    22
1    continued to fall asleep between short intervals of

2    consciousness, so Khilkevich ended the questioning.

3        The district court did not discredit the testimony of

4    Dr. Miller or Khilkevich.

5        Evidence of Taylor’s continued incapacity on April 10,

6    coupled with the taint of his prior confession, renders his

7    second waiver and statement involuntary.   Considering the

8    totality of circumstances, we conclude that Taylor’s

9    inculpatory statement on April 10 should have been

10   suppressed.3

11

12                                 III

13       Next we consider whether the error in admitting those

14   statements was harmless.    Arizona v. Fulminante, 499 U.S.

15   279, 310-11 (1991) (Rehnquist, C.J., writing for a majority

16   as to harmless error analysis); see also Zappulla v. New

17   York, 391 F.3d 462, 466 (2d Cir. 2004).    “When reviewing the

18   erroneous admission of an involuntary confession, the

19   appellate court, as it does with the admission of other

          3
             When it appears that a defendant is malingering, the
     calculus should be vastly different. Here, all the
     witnesses support the account that Taylor was actually
     slipping in and out of consciousness during the April 9
     interview, and immediately before and after the April 10
     interview.
                                    23
1    forms of improperly admitted evidence, simply reviews the

2    remainder of the evidence against the defendant to determine

3    whether the admission of the confession was harmless beyond

4    a reasonable doubt.”    Fulminante, 499 U.S. at 310 (emphasis

5    added).

6        “Is it clear beyond a reasonable doubt that a rational

7    jury would have found the defendant guilty absent the

8    error?”   Neder v. United States, 527 U.S. 1, 18 (1999).

9    “[T]he court conducting a harmless-error inquiry must

10   appreciate the indelible impact a full confession may have

11   on the trier of fact,” Fulminante, 499 U.S. at 313 (Kennedy,

12   J., concurring); “it may be devastating to a defendant,”

13   Id. at 312 (Rehnquist, C.J., writing for a majority as to

14   harmless error analysis).   The following (nonexclusive)

15   factors bear on whether the erroneous admission of a

16   confession was harmless: “(1) the overall strength of the

17   prosecution’s case; (2) the prosecutor’s conduct with

18   respect to the improperly admitted evidence; (3) the

19   importance of the wrongly admitted testimony; and (4)

20   whether such evidence was cumulative of other properly

21   admitted evidence.”    Zappulla, 391 F.3d at 468.

22       The admission of Taylor’s involuntary confessions was

23   not harmless error beyond a reasonable doubt.   (1)   Taylor’s

                                    24
1    confessions were a critical part of the prosecution’s case.

2    The case against Taylor otherwise rested on the testimony of

3    Luana Miller and cell-site records.    Miller’s testimony was

4    subject to attack, as Taylor claims, because of her criminal

5    past and because she had much to gain from cooperating with

6    the government.   Further, while the cell-site records

7    corroborate Miller’s account of their movements, no other

8    witness or physical evidence links Taylor to the crime.     (2)

9    The prosecution emphasized Taylor’s confessions throughout

10   trial, including at opening and closing, and had both

11   statements read to the jury in full.   (3) & (4)   Taylor’s

12   confessions were important to the case, corroborating

13   Miller’s critical testimony.   Further, a confession is

14   recognized to have greater impact than the same testimony

15   given by another witness.   See, e.g., Fulminante, 499 U.S.

16   at 312-13.   Given the weight that a jury may accord a

17   confession, as well as the other relevant factors, the

18   admission of Taylor’s post-arrest statements was not

19   harmless.

20       In sum, Taylor confessed while in a stupor, his will

21   was overborne, his statements were not voluntarily made, and

22   they should have been suppressed.   Considering the other

23   evidence against Taylor and the important role that his

                                    25
1    confessions played at trial, this was not harmless error.

2    We therefore vacate Taylor’s conviction and remand for a new

3    trial.4

4

5                                  IV

6        Rosario and Vasquez argue that the admission of

7    Taylor’s post-arrest statements violated their rights under

8    the Confrontation Clause because they had no opportunity to

9    cross-examine Taylor and because his statements pointed to

10   them.

11       It matters that the district court gave limiting

12   instructions.   The court instructed that “[s]ome evidence is

13   admitted for a limited purpose only,” and pointed

14   specifically to “certain statements that law enforcement

15   agents testified were made to them by Mr. Taylor and Mr.

16   Rosario and that were admitted only as to the particular

17   defendant who made the statement.”   Vasquez App. 220.   The

18   court later reinforced that instruction:

          4
             Aside from Counts One, Two, and Three of the
     indictment, which stemmed from the pharmacy robbery (of
     which all three defendants were convicted), Taylor was also
     convicted of making a misrepresentation to obtain OxyContin
     (Count Four). The government relied heavily on Taylor’s
     confession in proving this offense. Accordingly, we vacate
     all of Taylor’s counts of conviction, under the same
     harmless error analysis.
                                   26
 1             As I instructed you previously, evidence of
 2             statements that law enforcement agents testified
 3             were made by a particular defendant was admitted
 4             with respect to that particular defendant alone,
 5             and if you find that the statements were made, may
 6             not be considered or discussed by you in any way
 7             with respect to any other defendant when you begin
 8             your deliberations.
 9
10   Id. at 227; see also id. at 177 (“The evidence of alleged

11   statements made by Curtis Taylor to law enforcement is

12   admitted with respect to Curtis Taylor alone and may not be

13   considered or discussed by you in any way with respect to

14   either of the other defendants . . . .”).

15       We normally assume that jurors follow limiting

16   instructions.   See, e.g., United States v. Jass, 569 F.3d

17   47, 55 (2d Cir. 2009).   But a confession by one co-defendant

18   in a joint trial poses substantial risk for the other co-

19   defendants notwithstanding such an instruction.   See Bruton

20   v. United States, 391 U.S. 123, 135-36 (1968).    In Bruton,

21   the Supreme Court recognized the risks posed by “powerfully

22   incriminating extrajudicial statements of a co-defendant,

23   who stands accused side-by-side with the defendant,” which

24   are then “deliberately spread before the jury in a joint

25   trial.”   Id.   Such limiting instructions call for “a mental

26   gymnastic which is beyond, not only [the jury’s] powers, but

27   anybody’s else.”   Nash v. United States, 54 F.2d 1006, 1007


                                    27
1    (2d Cir. 1932) (L. Hand, J.).        The risk is heightened when

2    the circumstances deprive a defendant of the constitutional

3    right to confront the witnesses against him.       See Gray v.

4    Maryland, 523 U.S. 185, 196 (1998).

5        “The crux of [the Confrontation Clause] is that the

6    government cannot introduce at trial statements containing

7    accusations against the defendant unless the accuser takes

8    the stand against the defendant and is available for cross

9    examination.”   Jass, 569 F.3d at 55 (internal quotation

10   marks omitted).   When the confession of one defendant

11   implicates his co-defendants, Bruton demands “a redaction

12   and substitution adequate to remove the ‘overwhelming

13   probability’ that a jury will not follow a limiting

14   instruction that precludes its consideration of a redacted

15   confession against a defendant other than the declarant.”

16   Id. at 60.   Accordingly, “redacted confessions ‘that simply

17   replace a name with . . . obvious indications of alteration’

18   fall within Bruton because they ‘refer[ ] directly to the

19   “existence” of the nonconfessing defendant.’”       Id. at 58

20   (quoting Gray, 523 U.S. at 192) (emphasis in original).

21       Redactions and substitutions can avoid Bruton error if

22   the altered statement uses words “that might actually have

23   been said by a person admitting his own culpability in the

                                     28
1    charged conspiracy while shielding the specific identity of

2    his confederate.”   Id. at 62.        Along these lines, we have

3    previously allowed proper names to be replaced with the

4    following terms (among others): “another person,” id. at 59;

5    “others,” “other people,” and “another person,” United

6    States v. Tutino, 883 F.2d 1125, 1135 (2d Cir. 1989); the

7    pronoun “he,” United States v. Kyles, 40 F.3d 519, 526 (2d

8    Cir. 1994); “this guy,” “another guy,” and “similar

9    language,” United States v. Williams, 936 F.2d 698, 699, 701

10   (2d Cir. 1991); and “friend,” United States v. Benitez, 920

11   F.2d 1080, 1087 (2d Cir. 1990).        We explicitly left open,

12   however, “the possibility of a neutral-word substitution

13   being so conspicuously awkward” that the alteration becomes

14   obvious.   Jass, 569 F.3d at 61; see also Tutino, 883 F.2d at

15   1135 (upholding redacted statement where “the jury never

16   knew that [the declarant’s] original statement named

17   names”).

18       The redactions here suggest that Taylor’s original

19   statements contained actual names.        Throughout, Luana

20   Miller’s name is used--without redaction--conjoined with

21   reference to persons who are unnamed: “LUANA MILLER and two

22   other individuals”; “The person waiting with LUANA MILLER

23   and TAYLOR”; and “TAYLOR, LUANA MILLER, and the driver.”           If

                                      29
1    Taylor had been trying to avoid naming his confederates, he

2    would not have identified one of them--Miller--in the very

3    phrase in which the names of the other confederates are

4    omitted.5   The jurors would notice that Miller is the one

5    person involved who was cooperating, and would infer that

6    the obvious purpose of the meticulously crafted partial

7    redaction was to corroborate Miller’s testimony against the

8    rest of the group, not to shield confederates.

9        Moreover, the wording of the statement suffers from

10   stilted circumlocutions: “The robbery was the idea of the

11   person who waited with Luana Miller and Taylor at the gas

12   station”; “Luana Miller and the other person who had waited

13   with Taylor at the gas station came up with the plan”;

14   “[A]ll four of them went to the house of the mother of one

15   of the other individuals.”   And reference to “two other

16   individuals” is suspiciously closer to the speech of a

17   prosecutor than that of a perpetrator.

18       In Jass, we suggested that the following redaction

19   would be inadequate: “When I realized the guard had pulled

20   the alarm, I turned and said to another person, ‘Look, other


          5
            There was no evidence Taylor knew of Miller’s
     cooperation at the time of his arrest; Miller did not sign a
     formal cooperation agreement with the government until
     months later.
                                   30
1    person, we have to get out of here.’”       569 F.3d at 62.

2    Taylor’s redacted statement betrays a similar flaw in

3    referencing Vasquez, who drove the car: “the driver was

4    running late.    When the driver got there, he drove the three

5    of them”; “The driver then drove the car back to the Bronx.”

6    These sentences reflect a mechanical substitution of the

7    driver’s role for the driver’s name.

8        Once it becomes obvious that names have been pruned

9    from the text, the choice of implied identity is narrow.

10   The unnamed persons correspond by number (two) and by role

11   to the pair of co-defendants.        This “obviously redacted

12   confession . . . points directly to the defendant[s], and it

13   accuses the defendant[s] in a manner similar to . . . a

14   testifying codefendant’s accusatory finger.”       Gray, 523 U.S.

15   at 194.   The jury could immediately infer, on the evidence

16   of the redacted confession alone, that Taylor had likely

17   named the co-defendants.   See Jass, 569 F.3d at 57 (“The

18   inferences . . . involve statements that, despite redaction,

19   obviously refer directly to someone, often obviously the

20   defendant, and which involve inferences that a jury

21   ordinarily could make immediately, even were the confession

22   the very first item introduced at trial.” (quoting Gray, 523

23   U.S. at 196)).

                                     31
1        Jass does not require the most natural and colloquial

2    rendering of how a drug thief would have shielded the

3    identity of his confederates.         But the awkward

4    circumlocution used to reference other participants, coupled

5    with the overt naming of Luana Miller (only), is so

6    unnatural, suggestive, and conspicuous as to offend Bruton,

7    Gray, and Jass.6

8

9                                 V

10       Rosario and Vasquez also argue that the admission of

11   Taylor’s post-arrest statements caused prejudicial

12   spillover.7   Because we vacate the convictions of Rosario

          6
            After briefing and oral argument in this appeal,
     Taylor and Vasquez sought to raise an issue recently
     addressed by the Supreme Court in Alleyne v. United States,
     133 S. Ct. 2151 (June 17, 2013): whether their
     “brandish[ing]” of a firearm in connection with a crime of
     violence--an element of the offense increasing the mandatory
     minimum sentence--was found by the jury beyond a reasonable
     doubt. Although we need not reach this issue (because we
     vacate their convictions on other grounds), the challenge
     has no merit; the jury did make the necessary finding. See,
     e.g., Verdict Form 5; Tr. 1194.
          7
            Vasquez raises two other arguments on appeal that may
     have some bearing on the proceedings upon remand. First,
     Vasquez argues that the district court erred by limiting his
     cross-examination of Miller on the circumstances surrounding
     Rosario’s possession of a gun. Second, Vasquez argues that
     the district court delivered an unbalanced jury instruction
     on the significance of the ledger found in his pocket after
     his arrest. We see no abuse of discretion on either score.
                                      32
1   and Vasquez on other grounds, we need not reach this claim.8

2

3                            CONCLUSION

4       For the foregoing reasons, we vacate the convictions

5   and remand for a new trial.




         8
            It may matter on remand that Rosario’s challenge to
    the admissibility of Miller’s testimony under Rule 404(b) is
    without merit. Miller’s testimony about plans to commit a
    pharmacy robbery related to the crime charged in this case,
    and the district court did not abuse its discretion by
    admitting that evidence as relevant background. See United
    States v. Greer, 631 F.3d 608, 614 (2d Cir. 2011).
                                  33
