     11-2201(L)
     United States v. Taylor

 1                       UNITED STATES COURT OF APPEALS
 2
 3                             FOR THE SECOND CIRCUIT
 4
 5                                August Term, 2012
 6
 7
 8    (Argued: February 4, 2013              Decided: December 4, 2013)
 9
10         Docket Nos. 11-2201(L), 11-2426(CON), 11-2639(CON)
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   UNITED STATES OF AMERICA,
15
16                     Appellee,
17
18               - v.-
19
20   CURTIS TAYLOR, ANTONIO ROSARIO, AKA Chickee, SAMUEL VASQUEZ,
21   AKA Rock,
22
23                     Defendants-Appellants.
24
25   - - - - - - - - - - - - - - - - - - - -x
26

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

31   appeal the judgments of the United States District Court for

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

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

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

35   statements were not voluntary, the convictions are VACATED,

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

27   appeal judgments of conviction entered in the United States

28   District Court for the Southern District of New York

29   (Marrero, J.) for conspiracy to commit Hobbs Act robbery and

30   brandishing a firearm during a crime of violence, among

31   other offenses related to the robbery of a pharmacy in

32   midtown Manhattan.   Taylor, who claims to have attempted

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

34   incapacitated when he incriminated himself post-arrest, and

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

                                     2
1    evidence violated his rights under Miranda v. Arizona, 384

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

3    Constitution.   Rosario and Vasquez, who raise separate

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

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

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

7    caused prejudicial spillover and violated the confrontation

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

9    (1968).

10       This is a close case.   Even assuming that Taylor’s

11   initial waiver of his Miranda rights was knowing and

12   voluntary, Taylor was largely stupefied when he made his

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

14   law enforcement agents and the pretrial services officer who

15   interviewed him, and by the evaluations of staff

16   psychologists at the Metropolitan Correctional Center

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

18   asleep repeatedly during questioning and was only

19   intermittently alert.   Although their testimony also

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

21   incriminating statements were made in relatively lucid

22   intervals, Taylor was impaired throughout, and his



                                   3
1    interrogators took undue advantage of that impairment by

2    continuing to question him.    We therefore conclude that

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

4    further conclude that admitting those statements into

5    evidence was not harmless.    His conviction is therefore

6    vacated and remanded for a new trial.   And because the

7    admission of Taylor’s statements, to the extent they could

8    be used against Rosario and Vasquez, was not harmless error

9    as to them, their convictions are also vacated and remanded

10   for a new trial.

11                                  I

12       On Christmas Eve 2008, Vasquez drove Taylor and Rosario

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

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

15   an extensive criminal history.

16       En route, Miller called the pharmacy and asked them to

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

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

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

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

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

22   powerful opioid for pain that is often resold illegally.


                                    4
1    The two took more than $12,000 of controlled substances, as

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

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

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

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

6    Bronx that afternoon, traveled to midtown Manhattan just

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

8    the robbery, and then returned to the Bronx.

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

10   boyfriend in January 2009, police arrested her on

11   outstanding warrants.    Fearing extradition to Mississippi,

12   she offered to cooperate with the government’s investigation

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

14   and Vasquez.

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

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

17   Taylor claims that, amid the ensuing chaos, he attempted

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

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

20   reported the overdose to an officer who dismissed her and

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

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

23   whether officers were told of his overdose.

                                    5
1        Around 9:30 that morning, Taylor was interviewed at FBI

2    headquarters in downtown Manhattan by New York City Police

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

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

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

6    statement confessing his involvement in the robbery.

7        Taylor argues that he was falling asleep and was at

8    times unconscious during the interview.    Detective Burch

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

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

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

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

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

14              Mr. Taylor at times was nodding off during the
15              interview. When we asked Mr. Taylor to listen up,
16              that we were asking him questions, he would
17              respond that he knew what he was being asked and
18              he would repeat the questions back to us to show
19              that he was understanding what was being asked of
20              him and knew what was going on.
21
22   Id. at 45.     Detective Burch clarified that Taylor did not

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

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

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

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

27   then.”   Id.

                                     6
1           Taylor was later taken to a hospital for medical

2    clearance before his transfer into the custody of the

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

4    involved in the interrogation, explained that Taylor was

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

6    him on some medication and possibly an injury he had

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

8    Agent Tomas clarified that the hospital visit was necessary

9    because there was some question as to whether the Marshals

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

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

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

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

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

15   transferred to the MCC later that evening.

16          The next morning, April 10, Taylor met with MCC staff

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

18   Miller, explained that they wanted to evaluate Taylor before

19   his arraignment because they knew of Taylor’s earlier

20   schizophrenia diagnosis and several prior attempts at

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

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

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

                                    7
1    thoughts lacked spontaneity.”       Id. at 110.   Miller testified

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

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

4    Id. at 111.

5        Taylor also told one of the staff psychologists that

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

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

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

9    Miller recounted that, “[a]s a result of taking all those

10   Xanax pills, he said he wasn’t waking up and he went to the

11   hospital.”    Id.

12       He was then taken to the courthouse for arraignment.

13   While awaiting arrival of a pretrial services officer,

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

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

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

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

18   the robbery again.

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

20   Khilkevich, a pretrial services officer.      Khilkevich

21   testified that when he arrived to interview Taylor, Taylor

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

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

                                     8
1    if he was asleep or he was taking a nap.”   Id.   Khilkevich

2    stopped the interview because Taylor “repeatedly fell asleep

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

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

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

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

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

8    eventually finished the interview, explaining that Taylor

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

10       As to the other defendants:

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

12            waived his Miranda rights.    He claimed at first

13            that he was in the hospital the day of the

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

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

16            surveillance video showed a suspect like him,

17            Rosario laughed and ambiguously said “yeah.”

18            Trial Transcript (“Tr.”) 571.

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

20            after surveillance linked him to the car believed

21            to have been used in the pharmacy robbery.    When

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

23            and a piece of paper listing various milligram

                                    9
1                doses of oxycodone and OxyContin, along with the

2                number of pills of each dose.    Vasquez gave no

3                statement to police.

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

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

6    1951(b)(1); (2) Hobbs Act robbery; and (3) use, possession,

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

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

9    additionally charged with (4) fraudulent acquisition of

10   controlled substances by passing forged prescriptions, in

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

12       Taylor moved to suppress his two post-arrest statements

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

14   statements were neither knowing nor voluntary.      The

15   testimony summarized above was given at the suppression

16   hearing (starting April 23, 2010, continuing May 4, 2010,

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

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

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

20   Miranda waivers were “informed and voluntary.”      Supplemental

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

22   enforcement agents was consistent, corroborated, and

23   truthful.    Id. at 386-87.

                                    10
1        The court rejected the argument that Taylor’s

2    incapacitation rendered his post-arrest statements

3    involuntary:

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

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

22   it did “not equate nodding off intermittently with total

23   psychotic episodes of hallucination and other extreme

24   circumstances that might throw greater doubt on the

25   defendant’s ability to voluntarily and knowingly waive his

26   rights.”   Id. at 388.

27       Taylor’s statements, which implicated Rosario and

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

29   jury was instructed that Taylor’s statements should be

30   considered only as to Taylor.


                                     11
1        In December 2010, the jury convicted on all counts.

2    Taylor was sentenced principally to 200 months’

3    imprisonment, Rosario was sentenced principally to 180

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

5    They all filed timely notices of appeal.

6

7                                   II

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

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

10   statements on each of those dates, were knowing and

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

12   regarding the constitutionality of a Miranda waiver de novo

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

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

15   2007).

16       A statement made by the accused “during a custodial

17   interrogation is inadmissible at trial unless the

18   prosecution can establish that the accused in fact knowingly

19   and voluntarily waived [Miranda] rights when making the

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

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

22   knowing and voluntary waiver does not, however, guarantee


                                    12
1    that all subsequent statements were voluntarily made.”    In

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

3    177, 211-12 (2d Cir. 2008); see also Dickerson v. United

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

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

6    the voluntariness inquiry.”).

7        We look at the totality of circumstances surrounding a

8    Miranda waiver and any subsequent statements to determine

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

10   298, 309 (1985).   In that context, “knowing” means with full

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

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

13   deliberate choice free from intimidation, coercion, or

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

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

16   government bears the burden of proof.   Colorado v. Connelly,

17   479 U.S. 157, 168-69 (1986).

18

19       The analysis applicable to April 9 differs somewhat

20   from the analysis applicable to April 10.

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

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


                                     13
1    making a statement has knowingly and voluntarily waived

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

3    making his statement on April 9, Taylor was read Miranda

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

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

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

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

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

9    by the district court, supports the conclusion that Taylor

10   knowingly and voluntarily waived his Miranda rights before

11   speaking with law enforcement on April 9.

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

13   was knowing and voluntary, we must nonetheless determine

14   whether the inculpatory statements themselves were

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

16   not voluntary when obtained under circumstances that

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

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

19   The voluntariness inquiry should examine “the totality of

20   all the surrounding circumstances, including the accused’s

21   characteristics, the conditions of interrogation, and the

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



                                    14
1    mental state should be considered in the voluntariness

2    inquiry to the extent it allowed law enforcement to coerce

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

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

5    (per curiam).

6        The record indicates that Taylor’s statement of April 9

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

8    knowing and voluntary decision; his will was overborne.

9        It is difficult to determine whether a confession is

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

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

12   (1973).   It is clear, however, that when “a person is

13   unconscious or drugged or otherwise lacks capacity for

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

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

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

17   1970) (holding a written confession to be involuntary when

18   given “after over eighteen hours of uninterrupted custodial

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

20   without food, for thirty hours”).

21       Taylor claims he was mentally incapacitated during the

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



                                   15
1    ingested immediately before his arrest.      That claim finds

2    support in the record.    Detective Burch testified that

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

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

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

6    court credited this testimony.       Granted, Burch also

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

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

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

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

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

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

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

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

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

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

17   by a defendant who was hospitalized were ruled involuntary.

18   The Court observed that the defendant was in intensive care

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

20   to think clearly about either the events of that afternoon

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

22   The statements were “the result of virtually continuous


                                     16
1    questioning of a seriously and painfully wounded man on the

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

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

4    police officer] ceased the interrogation only during

5    intervals when [the accused] lost consciousness or received

6    medical treatment, and after each such interruption returned

7    relentlessly to his task.”).

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

9    a statement was involuntary, even though the accused claimed

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

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

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

13   statements were voluntary because he did “not contend that

14   federal agents either mentally or physically coerced his

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

16   648 F.3d at 128 (statements voluntary because defendant “was

17   never threatened physically or psychologically abused in any

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

19   overborne”) (internal quotation marks omitted).

20       One difference between Mincey and Salameh is the

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

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



                                    17
1    overreaching" in assessing voluntariness), and that is no

2    doubt a difficult issue here.        Continued questioning of a

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

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

5    436 F.2d at 1355-56; but the decisive issue is whether the

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

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

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

9    but there is little difference in effect between sleep

10   deprivation as a technique and the relentless questioning of

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

12   some other reason.

13       The district court credited testimony that Taylor was

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

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

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

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

18   Taylor was in and out of consciousness while giving his

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

20   not actually asleep.    Thus, the officers’ persistent

          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    questioning took undue advantage of Taylor’s diminished

2    mental state, and ultimately overbore his will.

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

4    was not voluntary and should have been suppressed.

5

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

7    initiated contact with law enforcement by notifying Agent

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

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

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

11   them, and gave an additional statement, altering some

12   aspects of his April 9 account.     Although Taylor continued

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

14   testified that, when speaking to the agents mid-morning,

15   Taylor was “much more alert” than he had been the day

16   before.2   Id. at 139-42.   But because Taylor’s first

17   confession on April 9 was the product of coercion, we must

18   determine whether his second waiver and confession, fewer

19   than twenty-four hours later, were rendered involuntary

20   based, at least in part, on the "taint clinging to the first

21   confession."    Anderson, 929 F.2d at 102.

          2
            As discussed further below, the question is not free
     of doubt.
                                    19
1        “[T]he use of coercive and improper tactics in

2    obtaining an initial confession may warrant a presumption of

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

4    obtained after properly administered Miranda warnings."

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

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

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

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

9    thereafter free of the psychological and practical

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

11   331 U.S. 532, 540 (1947).

12       “In deciding whether a second confession has been

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

14   passes between confessions, the change in place of

15   interrogations, and the change in identity of interrogators

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

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

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

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

20   Taylor was hospitalized or unconscious most of the time.

21   Although the venue of the interrogations differed, Agent

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



                                   20
1    Taylor addressed his request to “clear up some issues.”       The

2    taint of the prior involuntary confession carried over to

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

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

5           That presumption is reinforced by uncontradicted

6    testimony regarding Taylor’s lingering mental incapacity on

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

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

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

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

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

12   sleeping, Agent Jensen explained that it was “in excess of

13   minutes.”    Id.

14          Although the record does not suggest that Taylor fell

15   asleep during the April 10 interview, there is evidence

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

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

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

19   to questions:

20               When he was seen, he presented with a thought
21               disorder. He was noted to be picking at his
22               nails. He was drooling. He was vague in his
23               responses to questioning. He presented with what
24               we call a flat affect . . . just kind of flat and
25               blank-face stare.

                                      21
1
2             He could not elaborate on questions asked. His
3             thoughts lacked spontaneity. His speech was
4             vague. When we would ask him certain questions
5             about whether he was hearing voices, he couldn’t
6             really elaborate on his responses.
7
8    Id. at 110.   Dr. Miller also reported the observation made

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

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

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

12       Dennis Khilkevich, a pretrial services officer who

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

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

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

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

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

18   continued to fall asleep between short intervals of

19   consciousness, so Khilkevich ended the questioning.

20       The district court did not discredit the testimony of

21   Dr. Miller or Khilkevich.

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

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

24   second waiver and statement involuntary.    Considering the

25   totality of circumstances, we conclude that Taylor’s


                                   22
1    inculpatory statement on April 10 should have been

2    suppressed.3

3

4                                 III

5        Next we consider whether the error in admitting those

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

7    279, 310-11 (1991) (Rehnquist, C.J., writing for a majority

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

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

10   erroneous admission of an involuntary confession, the

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

12   forms of improperly admitted evidence, simply reviews the

13   remainder of the evidence against the defendant to determine

14   whether the admission of the confession was harmless beyond

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

16   added).

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

18   jury would have found the defendant guilty absent the

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

          3
             When it appears that a defendant is malingering, the
     voluntariness 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    “[T]he court conducting a harmless-error inquiry must

2    appreciate the indelible impact a full confession may have

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

4    J., concurring); indeed, “it may be devastating to a

5    defendant,”    Id. at 312 (Rehnquist, C.J., writing for a

6    majority as to harmless error analysis).    We consider the

7    following (nonexclusive) factors in determining whether the

8    erroneous admission of a confession was harmless: “(1) the

9    overall strength of the prosecution’s case; (2) the

10   prosecutor’s conduct with respect to the improperly admitted

11   evidence; (3) the importance of the wrongly admitted

12   testimony; and (4) whether such evidence was cumulative of

13   other properly admitted evidence.”    Zappulla, 391 F.3d at

14   468.

15          The admission of Taylor’s involuntary confessions was

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

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

18   The case against Taylor otherwise rested on the testimony of

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

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

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

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



                                    24
1    corroborate Miller’s account of their movements, no other

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

3    The prosecution emphasized Taylor’s confessions throughout

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

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

6    confessions were important to the case, corroborating

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

8    recognized to have greater impact than the same testimony

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

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

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

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

13   harmless.

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

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

16   they should have been suppressed.   Considering the other

17   evidence against Taylor and the important role that his

18   confessions played at trial, this was not harmless error.

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

20   trial.4

          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
                                    25
1                                   IV

2           To the extent that Taylor’s confessions were used

3    against them, Rosario and Vasquez join Taylor’s challenge

4    based on the voluntariness of Taylor’s confessions.5      The

5    question is whether the admission of those statements was

6    harmless as to Rosario and Vasquez.    We conclude that it was

7    not.

8           It matters that the district court gave limiting

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

10   admitted for a limited purpose only,” and pointed

11   specifically to “certain statements that law enforcement

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

13   Rosario and that were admitted only as to the particular



     (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.
            5
             Vasquez explicitly joins Taylor’s arguments. While
     Rosario failed to explicitly join, we exercise our
     discretion and construe Rosario’s appeal to include those
     arguments made by Taylor that may be applicable to Rosario.
     See Fed. R. App. P. 2 (“On its own or a party’s motion, a
     court of appeals may--to expedite its decision or for other
     good cause--suspend any provision of these rules in a
     particular case . . . .”); United States v. Babwah, 972 F.2d
     30, 35 (2d Cir. 1992) (“Fed. R. App. P. 2 gives a Court of
     Appeals the discretion to overlook [a failure to raise an
     argument on appeal] if manifest injustice otherwise would
     result.”).
                                    26
1    defendant who made the statement.”   Vasquez App. 220.   The

2    court later reinforced that instruction:

 3             As I instructed you previously, evidence of
 4             statements that law enforcement agents testified
 5             were made by a particular defendant was admitted
 6             with respect to that particular defendant alone,
 7             and if you find that the statements were made, may
 8             not be considered or discussed by you in any way
 9             with respect to any other defendant when you begin
10             your deliberations.
11
12   Id. at 227; see also id. at 177 (“The evidence of alleged

13   statements made by Curtis Taylor to law enforcement is

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

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

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

17       We normally assume that jurors follow limiting

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

19   47, 55 (2d Cir. 2009).   But a confession by one co-defendant

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

21   defendants notwithstanding such an instruction.   See Bruton

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

23   the Supreme Court recognized the risks posed by “powerfully

24   incriminating extrajudicial statements of a co-defendant,

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

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

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

                                    27
1    gymnastic which is beyond, not only [the jury’s] powers, but

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

3    (2d Cir. 1932) (L. Hand, J.).        The risk is heightened when

4    the circumstances deprive a defendant of the constitutional

5    right to confront the witnesses against him, which may

6    result in Bruton error.   See Gray v. Maryland, 523 U.S. 185,

7    196 (1998).

8        With this risk in mind, we turn to examine whether the

9    erroneous admission of Taylor’s statements was harmless as

10   to Rosario and Vasquez--that is, whether it is clear beyond

11   a reasonable doubt that a rational jury would have found

12   Rosario and Vasquez guilty absent the error.       Again we

13   consider, among other things: (1) the strength of the

14   prosecution’s case, (2) the prosecutor’s conduct with

15   respect to the statements, (3) the importance of the

16   statements, and (4) whether the statements were cumulative

17   of other evidence.   Zappulla, 391 F.3d at 468.

18       As to Rosario, the prosecution’s case was relatively

19   strong, but relied chiefly on the testimony of Miller, which

20   was subject to credibility attack, and on the cell-site

21   records.   The government also relied on surveillance video

22   footage from inside the pharmacy and the testimony of the



                                     28
1    pharmacist working during the robbery.   However, the record

2    suggests that the face on the videotape was partially

3    covered; the pharmacist was unable to identify Rosario as

4    the assailant; and Rosario’s post-arrest statement mostly

5    denied involvement in the robbery.6   Taylor’s confession was

6    critical to the prosecution because it corroborated Miller’s

7    account and definitively placed Rosario at the scene of the

8    crime, in possession of a firearm.    We cannot conclude

9    beyond a reasonable doubt that a rational jury would have

10   convicted Rosario absent Taylor’s statements.7

11       As to Vasquez, the government’s case was somewhat

12   weaker, again relied heavily on the cell-site records, and

13   drew its strength from Taylor’s statements.   The

14   government’s other evidence was a piece of paper found on

15   Vasquez’s person when he was arrested, with oxycodone and



          6
            After at first claiming he was elsewhere, Rosario
     laughed and said “yeah” when law enforcement told him that
     surveillance video showed a suspect that looked like him in
     the pharmacy.
          7
            Although Rosario’s conviction is vacated on this
     ground, it may matter on remand that his 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 at issue in this case,
     and the district court did not abuse its discretion by
     admitting the evidence as relevant background. See United
     States v. Greer, 631 F.3d 608, 614 (2d Cir. 2011).
                                  29
1    OxyContin listed and annotated with numbers; and the

2    testimony of an officer who saw Taylor, Rosario, and Vasquez

3    together in Vasquez’s car, which was allegedly used during

4    the robbery.   The piece of paper is likely a drug ledger,

5    but no evidence tied it to the pharmacy robbery, and the

6    only evidence putting Vasquez’s car at the scene of the

7    crime was testimony by Miller and the statements of Taylor.

8    For the same reasons reviewed above, we cannot conclude

9    beyond a reasonable doubt that a rational jury would have

10   convicted Vasquez had Taylor’s statements been properly

11   excluded.8

12       We therefore hold that the admission of Taylor’s

13   involuntary confessions was not harmless error as to Rosario

14   and Vasquez, and vacate their convictions and remand for a

15   new trial.9

          8
            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.
          9
             The Supreme Court recently decided that any fact
     that increases the mandatory minimum sentence--including
     whether a defendant “brandished” a firearm in connection
     with a crime of violence--is an element of the offense that
     must be found by a jury beyond a reasonable doubt. Alleyne
                                   30
1                                  V

2        Rosario and Vasquez also argue that the admission of

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

4    the Confrontation Clause because they had no opportunity to

5    cross-examine Taylor and because his statements adverted to

6    them.   See Bruton v. United States, 391 U.S. 123 (1968).

7    Because we have vacated the convictions of Rosario and

8    Vasquez on separate grounds, we need not reach their claim

9    of Bruton error.

10

11                             CONCLUSION

12       For the foregoing reasons, we vacate the convictions

13   and remand for a new trial.




     v. United States, 133 S. Ct. 2151 (June 17, 2013). After
     briefing and oral argument were complete, Taylor and Vasquez
     sought to raise this issue on appeal, but because we are
     vacating their convictions on other grounds, we need not
     reach it. In any event, the jury did find brandishing
     beyond a reasonable doubt. See, e.g., Verdict Form 5; Tr.
     1194.
                                   31
