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

No. 03-2377
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,
                                 v.
TIMOTHY STEWART,
                                            Defendant-Appellant.

                          ____________
            Appeal from the United States District Court
      for the Southern District of Indiana, Evansville Division.
       No. EV 01-32-CR-01-Y/H—Richard L. Young, Judge.
                          ____________
  ARGUED SEPTEMBER 15, 2004—DECIDED NOVEMBER 9, 2004
                          ____________




  Before EVANS, WILLIAMS, and SYKES, Circuit Judges.
  SYKES, Circuit Judge. Timothy Stewart was convicted by
a jury of armed bank robbery and use of a firearm during a
crime of violence. He confessed to these crimes, but argues
that his confession should not have been admitted at trial
because the police used a two-step interrogation process in
which Miranda warnings were initially withheld, in
violation of Miranda as applied in the Supreme Court’s
recent decision in Missouri v. Seibert, ___ U.S. ___, 124
S.Ct. 2601, 159 L.Ed.2d 643 (2004). He also claims the
confession was involuntary in light of a promise of leniency
made by the interrogating officer, and that his trial counsel
2                                                  No. 03-2377

was ineffective in not moving to suppress the confession as
the fruit of an unlawful arrest. Finally, Stewart argues that
his trial counsel was ineffective because she did not assert
a Brady violation or seek a missing evidence instruction
regarding the partial erasure of a surveillance videotape of
the robbery.
  We reject Stewart’s various ineffective assistance of coun-
sel claims and also affirm the district court’s conclusion that
Stewart’s confession was not involuntary because of an
improper police promise. On the present record, however,
we cannot determine whether the admission of Stewart’s con-
fession requires reversal under Seibert. We therefore remand
for further proceedings consistent with this opinion.


                       I. Background
  Ten days before Halloween 2001, the Old National Bank
in Evansville, Indiana was robbed by a man dressed in
black and wearing a skeleton mask. The robber entered the
bank at about 9:30 a.m. carrying an SKS rifle and a duffel
bag. He ordered everyone to the ground, leaped over the
teller counter, pointed the rifle at one of the tellers, and told
her to fill the duffel bag with money. As she did so, another
teller activated the bank’s alarm. The robber escaped
through the rear door of the bank, where he was seen by an
emergency medical technician who had just parked her
ambulance and was preparing to go into the bank. The
technician saw the robber get into a white car and noticed
a red mist billowing inside the car as it headed west away
from the bank.
  The robber did not stay in the car very long. Evansville
Police Officer Michael Sitzman, responding to a dispatch
about the robbery, was in his squad car about a block from
the bank when he observed a black man carrying a duffel
bag and a rifle running from the bank. The man hid briefly
behind a parked pickup truck before resuming his flight,
No. 03-2377                                                  3

scaling a fence, and disappearing from view. Sitzman did
not get a look at the man’s face, but provided a general
physical description to his dispatcher.
   About a half-hour after the robbery and roughly a mile
south of the bank, Timothy Stewart unexpectedly appeared
at a Subway sandwich shop where his sister-in-law Mary
Kay Petitjean worked. Stewart asked Petitjean for a ride
but did not tell her where he was going. Stewart told Petitjean
to drive north in the direction of the bank. In the meantime,
Evansville Police Corporal Timothy Nussmeier had estab-
lished a perimeter a few blocks from the bank and was
checking vehicles for a person matching Sitzman’s descrip-
tion of the robbery suspect: a black male, about 5'7" tall, 145
pounds, with short hair, and wearing blue coveralls. When
Petitjean arrived at the perimeter checkpoint, Nussmeier
directed her to pull over.
  Nussmeier observed that Stewart, seated in the front pas-
senger seat, generally matched Sitzman’s description of the
robbery suspect but was wearing a white shirt and blue
pants. Nussmeier asked Stewart who he was, where he was
coming from, and where he was headed. Stewart identified
himself and told Nussmeier that he and Petitjean had driven
from the Subway store and that he had walked to the Subway
from 4000 Kathleen Avenue in order to get a ride from
Petitjean. Nussmeier was familiar with both locations and
knew that the Subway was some twenty-five to thirty
blocks from 4000 Kathleen Avenue. Stewart could not give
Nussmeier a specific destination, saying only that they were
going “up here” or “up this road.”
  Nussmeier radioed for an eyewitness identification, and
Officer Sitzman arrived at the perimeter checkpoint soon
after. Because he had not seen the suspect’s face, Sitzman
could not make a definite positive identification; but as to
hairstyle and physical build, he said Stewart was “about a
perfect match” with the suspect. Nussmeier radioed for the
4                                                No. 03-2377

assistance of Evansville detectives. He handcuffed Stewart
and placed him in the back seat of his squad car where
Stewart remained for five or ten minutes.
  At approximately 10:30 a.m, one hour after the robbery
and some twenty minutes after Petitjean’s car had been
stopped, Evansville Detectives Dan Winters and Larry Nelson
arrived at the checkpoint. Winters removed Stewart from
Nussmeier’s car and uncuffed him. Unprompted, Stewart
said, “Let’s get in your car.” Stewart got into the back seat
of Winters’ car and Winters got in the front seat. Stewart
then told Winters to “drive” and to “take me downtown.”
Winters asked him why; Stewart responded, “Well, you’re
going to arrest me anyway.” Winters asked, “Why, are you
the bank robber?” Stewart answered “no.”
   Meanwhile, back at the bank, the white getaway car was
found in an alley just west of the bank, driver’s door open,
keys in the ignition, and a red dye stain in the front pas-
senger side. A cell phone was found on the ground about
fifteen to twenty feet from the car. About five or ten minutes
after Stewart entered Winters’ car, information was relayed
to the officers at the perimeter checkpoint that the cell phone
recovered near the scene of the crime belonged to one
Timothy Stewart of 4000 Kathleen Avenue. Winters then
removed Stewart from the car, handcuffed him, and re-
turned him to the back seat. Stewart was not told he was
under arrest and no Miranda warnings were given, although
the parties now agree that at this point Stewart was under
arrest.
  Detectives Nelson and Winters left the checkpoint with
Stewart at about 10:40 a.m. During the five-minute drive to
the police station, the detectives questioned Stewart about
the robbery. Stewart denied any involvement. When they
arrived at the station, Stewart was placed in an interview
room and the handcuffs were removed. Nelson and Winters
No. 03-2377                                                    5

again asked Stewart if he was involved in the robbery.
Stewart continued to deny involvement, but asked the de-
tectives if he would be charged if he told them who had
committed the robbery. Nelson told Stewart that he would
be “all right” as long as he had no direct involvement in the
robbery himself. Stewart then told the detectives that a
man named Duel Felders committed the robbery and that
he had provided Felders with the gun and the getaway car.
The detectives advised Stewart that his cell phone had been
recovered; Stewart said Felders had used his phone and
must have left it in the car.
  About five or ten minutes into the station-house inter-
view, Winters left the room and Nelson and Stewart were
joined by FBI Special Agents Martin Williams and James
Beck. Shortly thereafter, Stewart broke down in tears and
admitted to committing the robbery alone. At that point
Nelson advised Stewart of his rights under Miranda.1 At
11:05 a.m. Stewart signed a waiver of rights form. The ques-
tioning then continued for over an hour, and Stewart ulti-
mately agreed to make a tape-recorded statement.
  Stewart’s tape-recorded statement began at 12:10 p.m.
and ended at 12:38 p.m. During this statement, Stewart was
occasionally asked about admissions made and information
provided earlier in the interrogation. For example, early on
in the recorded statement, Nelson asked Stewart, “You have
admitted to committing that robbery, is that correct,” and
Stewart answered “yes.” Also, referring to Stewart’s admis-
sion that he stole the getaway car from a car dealership,
Nelson asked Stewart, “You had told us that you had test
drove that car,” and Stewart answered “yes.” It is not clear
from the record whether these references to earlier admissions


1
  Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966).
6                                                No. 03-2377

pertain to Stewart’s pre-Miranda or post-Miranda state-
ments to police.
  Stewart’s trial counsel moved to suppress Stewart’s con-
fession, arguing that it was involuntary because he was
intoxicated and because the police promised him leniency if
he cooperated in the investigation. Although Stewart
testified at the suppression hearing that “the FBI guy” told
him that he “wouldn’t be charged with the gun [offense]” if
he cooperated, Agent Williams testified that no such rep-
resentations or promises of any sort were made. Stewart
also testified that he had consumed twelve ounces of Crown
Royal that morning, but the officers said he showed no signs
of intoxication. The district court found that there was no
credible evidence of intoxication or promises of leniency and
concluded that Stewart’s statements to police following his
Miranda waiver were voluntary and admissible.
  Stewart’s taped confession was admitted in evidence and
played for the jury during trial. Near the close of the govern-
ment’s case in chief, Stewart’s attorney advised the district
court that a bank surveillance videotape of the robbery had
been partially erased by the prosecutor. Although the vid-
eotape was listed on the government’s exhibit list, the
prosecutor announced his intention not to offer it in evidence,
and rested his case. Stewart’s attorney said she wanted the
videotape admitted, but would like an opportunity to confer
with Stewart first. A recess was taken, and when court
reconvened, Stewart’s attorney announced that the defense
would rest without introducing any evidence. She did not
request an evidentiary hearing to determine how the
videotape was partially erased, nor did she request a mis-
sing evidence jury instruction. The jury returned a guilty
verdict on both counts, and Stewart was sentenced to 159
months in prison.
No. 03-2377                                                 7

                      II. Discussion
A. Ineffective Assistance of Counsel
  Stewart argues that he was arrested without probable
cause and that his trial attorney was ineffective in not
moving to suppress his confession as the poisonous fruit of
his unlawful seizure. He also argues that counsel was inef-
fective in failing to move for a Brady hearing or request a
missing evidence instruction regarding the partially erased
videotape.
  Sixth Amendment ineffective assistance of counsel claims
are often raised collaterally in a petition under 28 U.S.C. §
2255 to allow for supplementation of the record with evi-
dence pertinent to the asserted attorney error. Galbraith v.
United States, 313 F.3d 1001, 1007-08 (7th Cir. 2002);
McCleese v. United States, 75 F.3d 1174, 1178 (7th Cir. 1996).
However, where a defendant confines his claim to the exist-
ing record and is represented by different counsel on appeal,
an ineffective assistance of counsel argument is proper on
direct appeal. McCleese, 75 F.3d at 1178. That is the case
here.
   A defendant claiming that his counsel was constitutionally
ineffective is up against a strong presumption that counsel
provided adequate assistance and exercised reasonable
professional judgment. Strickland v. Washington, 466 U.S.
668, 690, 104 S.Ct. 2052, 2065-66, 80 L.Ed.2d 674 (1984);
United States v. Pergler, 233 F.3d 1005, 1009 (7th Cir. 2000).
The familiar Strickland test requires Stewart to show that
his attorney’s performance was deficient and that the de-
ficient performance was prejudicial. Strickland, 466 U.S. at
690-91; Floyd v. Hanks, 364 F.3d 847, 850 (7th Cir. 2004).


  1. Fourth Amendment violation
  To satisfy the Strickland test where the asserted attorney
error is a defaulted Fourth Amendment claim, a defendant
must first prove that the Fourth Amendment claim is mer-
8                                                No. 03-2377

itorious. United States v. Jackson, 103 F.3d 561, 573 (7th Cir.
1996). Stewart concedes that his initial stop was justified by
reasonable suspicion under Terry v. Ohio, 392 U.S. 1, 21, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968), and also does not chal-
lenge his brief detention while Corporal Nussmeier waited
for an eyewitness identification. He argues that once Officer
Sitzman arrived and failed to positively identify him, the
basis for his continued detention was eliminated.
  We disagree. The initial suspicion did not dissipate upon
Sitzman’s arrival at the checkpoint. Stewart matched the
suspect’s general description, was stopped within a few
blocks of the crime scene, and had only a vague explanation
for where he was going. It is true that Sitzman could not
make a completely positive identification because he had not
seen the suspect’s face. But Sitzman declared that Stewart
was “about a perfect match” with the suspect’s hairstyle
and physical build. This heightened rather than eliminated
the initial suspicion, justifying Stewart’s continued brief de-
tention while detectives were summoned.
   Stewart also argues that the level of suspicion did not jus-
tify the amount of restraint used when Nussmeier hand-
cuffed him and placed him in the back seat of his squad, an
act which Stewart claims transformed the Terry stop into a
formal arrest. By the time Detective Winters arrived and
removed the handcuffs, Stewart had been detained in
Nussmeier’s squad for about ten minutes.
   The fault line between an investigative detention and an
arrest is flexible and highly fact-intensive: “Given the ‘end-
less variations in the facts and circumstances,’ there is no
‘litmus-paper test for determining when a seizure exceeds
the bounds of an investigative stop’ and becomes an arrest.”
United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994)
(quoting Florida v. Royer, 460 U.S. 491, 506, 103 S.Ct. 1319,
1329, 75 L.Ed.2d 229 (1983)). “[T]he crux of our inquiry is
whether the nature of the restraint imposed meets the Fourth
No. 03-2377                                                9

Amendment’s standard of objective reasonableness.” United
States v. Vega, 72 F.3d 507, 515 (7th Cir. 1995). The permis-
sible scope of a Terry stop has expanded in recent years to
include the use of handcuffs and temporary detentions in
squad cars. Id.; Tilmon, 19 F.3d at 1224-25.
  In Vega we held that a Terry stop did not become an arrest
when officers drew their weapons and detained a suspect in
a squad car for over an hour. Vega, 72 F.3d at 515. We
noted that the officers believed the suspect was dangerous
and that the circumstances of the case—which involved
a “massive” cocaine conspiracy—made the duration and
manner of the stop reasonable. Id. Similarly, in Tilmon we
affirmed the reasonableness of a stop of an armed bank
robbery suspect in which officers completely surrounded the
suspect’s car and drew their guns. Tilmon, 19 F.3d at 1226.
  Common to both Vega and Tilmon was our recognition of
the officers’ reasonable belief that the suspect was poten-
tially dangerous. “To require an officer to risk his life in
order to make an investigatory stop would run contrary to
the intent of Terry v. Ohio.” Id. at 1226 (quoting United
States v. Maslanka, 501 F.2d 208, 213 n.10 (5th Cir. 1974)).
Similar considerations are at work here. The bank robbery
was less than an hour old, and Stewart matched the best
description of the suspect that the officers possessed. The
robbery suspect wielded a semiautomatic rifle and commit-
ted a crime of violence. Stewart behaved suspiciously,
giving a vague and implausible story about where he had
come from and where he was going.
  Under these circumstances, it was not unreasonable for
the officers to handcuff and detain Stewart in the squad car
for ten minutes pending the arrival of detectives; their
action in this regard did not transform Stewart’s temporary
10                                                   No. 03-2377

detention into an arrest.2 A motion to suppress Stewart’s
confession as the fruit of an illegal arrest would have failed
on the merits. Stewart’s counsel cannot have been ineffec-
tive for failing to pursue what we have concluded would
have been a meritless suppression motion. Jackson, 103 F.
3d at 573.


    2. Brady claim and “missing evidence” instruction
  Stewart also argues that his attorney’s performance was
deficient because she failed to assert a Brady violation or
request a “missing evidence” jury instruction regarding the
partial erasure of the surveillance videotape. A claim that
the government failed to preserve evidence is not governed
by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963) but, rather, by the more rigorous standard es-
tablished in Arizona v. Youngblood, 488 U.S. 51, 56-58, 109
S.Ct. 333, 102 L.Ed.2d (1988). This requires the defendant
to demonstrate: “(1) bad faith on the part of the government;
(2) that the exculpatory value of the evidence was apparent
before the evidence was destroyed; and (3) that the evidence
was of such a nature that the defendant would be unable to
obtain comparable evidence by other reasonably available
means.” United States v. Aldaco, 201 F.3d 979, 982-83 (7th



2
  Stewart also briefly suggests that his detention became illegal
once the detectives arrived because they had information from
certain witnesses at the bank that the robber was six-feet tall.
Stewart claims he should have been released because he is only
5'7". But when the detectives arrived, they removed Stewart from
the squad car and also removed the handcuffs; it was Stewart
himself who then asked to get in Detective Winters’ car and be
taken downtown. He was not handcuffed again until a few
moments later when the detectives learned that his cell phone had
been found at the scene. At this point (the parties agree), Stewart
was under arrest based on adequate probable cause.
No. 03-2377                                                 11

Cir. 2000) (quoting United States v. Watts, 29 F.3d 287, 289-
90 (7th Cir. 1994)).
   On this aspect of his ineffective assistance of counsel
claim Stewart is boxed in by his election to assert the claim
on direct review rather than in a § 2255 collateral proceeding.
There is no evidence in the record about the circumstances
surrounding the partial erasure of the videotape, the con-
tent of what was erased, and the nature and quality of the
images that remained on the tape. We have no record upon
which to evaluate the defense attorney’s decision to abandon
the issue of the partially erased videotape. The record re-
flects only that she raised the subject of the videotape with
the district court when the government rested its case, and
then asked for a recess to confer with Stewart. When court
resumed, Stewart’s attorney rested the defense case without
introducing any evidence. Without a supplementary eviden-
tiary record, Stewart cannot carry his burden of demon-
strating that his attorney mishandled the issue of the
videotape.


B. Miranda Violation            and     Voluntariness       of
   Confession
  Stewart argues that his confession should have been
suppressed for two additional reasons: (1) the police used a
two-step interrogation process in which Miranda warnings
were initially withheld, in violation of Miranda and the
Supreme Court’s recent decision in Missouri v. Seibert; and
(2) the confession was involuntary because it was induced
by a promise of leniency. The latter argument is perfunctory
and meritless. Stewart claims he was duped into initially
confessing “indirect” and then “direct” involvement in the
robbery by Detective Nelson’s representation that he would
not be charged if he had no direct involvement in the crime.
The detective’s offhand remark that Stewart would be “all
right” if he had no direct involvement in the robbery cannot
12                                              No. 03-2377

reasonably be construed as a promise of leniency and was
not otherwise coercive.
  Stewart’s challenge to the two-step interrogation is not so
easily resolved. The parties agree that Stewart was in
custody when he was handcuffed and returned to the back
seat of Detective Winters’ car after the detectives learned
that the cell phone recovered at the crime scene belonged to
him. Miranda warnings were not given, but Stewart was
questioned by police during the five-minute ride to the
police station, and the questioning continued in an inter-
view room at the station for another ten minutes or so.
During this unwarned phase of the interrogation, Stewart
initially denied involvement, then admitted to assisting the
perpetrator (to the extent of providing the gun and the
getaway car), and then confessed to robbing the bank alone.
At this point the police provided Miranda warnings, obtained
a waiver of rights, and elicited a detailed confession which
was subsequently tape-recorded.
  Although he did not raise the issue in the district court,
Stewart argued in his opening brief on appeal that the police
violated Miranda when they elicited an unwarned confes-
sion and then, mid-interrogation, interjected Miranda warn-
ings and secured a postwarning repetition of his confession.
His position on this issue was considerably strengthened
when the Supreme Court decided Missouri v. Seibert while
this appeal was being briefed. At issue in Seibert was the
admissibility of a confession obtained by the use of a two-
step interrogation strategy that called for the deliberate
withholding of Miranda warnings until the suspect con-
fessed, followed by a Miranda warning and a repetition of
the confession already given.
  The interrogating officer in Seibert testified that he made
a “conscious decision” to use “an interrogation technique he
had been taught: question first, then give the warnings, and
then repeat the question ‘until I get the answer that she’s
No. 03-2377                                                 13

already provided once.’ ” Seibert, 124 S.Ct. at 2606. Al-
though five members of the Court held the postwarning
confession inadmissible under these circumstances, the case
did not produce a majority opinion. “When a fragmented
Court decides a case and no single rationale explaining the
result enjoys the assent of five Justices, ‘the holding of the
Court may be viewed as that position taken by those Members
who concurred in the judgments on the narrowest grounds.’ ”
Marks v. United States, 430 U.S. 188, 193 (1977) (quoting
Gregg v. Georgia, 428 U.S. 153, 169 n.15, 96 S.Ct. 2909, 49
L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens,
JJ.)); see also Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d
702, 715 n.20 (7th Cir. 2003). A close reading of the sepa-
rate opinions in Seibert reveals at least some common legal
ground.
  A plurality of the Court held that Miranda warnings given
mid-interrogation, after a suspect has already confessed,
are generally ineffective as to any subsequent, postwarning
incriminating statements.3 Seibert, 124 S.Ct. at 2605. The
plurality held that the police interrogation technique known
as “question first” did not serve Miranda’s purpose of
informing suspects about their constitutional rights: “[t]he
object of question-first is to render Miranda warnings
ineffective by waiting for a particularly opportune time to
give them, after the suspect has already confessed.” Seibert,
124 S.Ct. at 2610. When police question first and warn
later, the threshold inquiry, according to the plurality, is
“whether it would be reasonable to find that in these
circumstances the warnings could function ‘effectively’ as
Miranda requires.” Id. The plurality was skeptical: “[I]t is
likely that if the interrogators employ the technique of
withholding warnings until after interrogation succeeds in
eliciting a confession, the warnings will be ineffective in


3
  Justice Souter wrote the plurality opinion and was joined by
Justices Stevens, Ginsburg, and Breyer.
14                                               No. 03-2377

preparing the suspect for successive interrogation, close in
time and similar in content.” Id. This is because a suspect
who had just admitted guilt “would hardly think he had a
genuine right to remain silent.” Id. at 2611.
  The plurality distinguished Oregon v. Elstad, 470 U.S.
298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), essentially
limiting it to its facts. Id. at 2611-12. Elstad addressed the
admissibility of a Mirandized station-house confession that
was preceded by an earlier, unwarned inculpatory remark
by the defendant at the scene of his arrest. The defendant
in Elstad was arrested at his home in connection with a
recent neighborhood burglary. As police were executing the
arrest warrant, and while still in the defendant’s living
room, one of the officers explained to the defendant that he
was suspected of being involved in burglarizing his neigh-
bor’s home. Elstad, 470 U.S. at 301. The defendant told the
officer, “Yes, I was there.” Id. He had not yet received
Miranda warnings. Later, at the sheriff’s headquarters, the
defendant was fully Mirandized, waived his rights, and
gave an incriminating statement. Id.
  The Supreme Court held in Elstad that the failure to ad-
minister Miranda warnings prior to the defendant’s initial
inculpatory statement did not require suppression of his
subsequent Mirandized confession. Elstad, 470 U.S. at 300.
Because the Fourth Amendment exclusionary rule is differ-
ent in purpose and effect from the Miranda suppression
rule, the Court refused to extend the Fourth Amendment
“fruits” doctrine to the Fifth Amendment Miranda context:
     It is an unwarranted extension of Miranda to hold that
     a simple failure to administer the warnings, unaccom-
     panied by any actual coercion or other circumstances
     calculated to undermine the suspect’s ability to exercise
     his free will, so taints the investigatory process that a
     subsequent voluntary and informed waiver is ineffective
     for some indeterminate period. Though Miranda
No. 03-2377                                                     15

    requires that the unwarned admission must be sup-
    pressed, the admissibility of any subsequent statement
    should turn in these circumstances solely on whether it
    is knowingly and voluntarily made.
Id. at 310.
  The Court also refused to attribute constitutional signifi-
cance to the “psychological effects” of a voluntary unwarned
admission, reiterating that “[t]he failure of police to admin-
ister Miranda warnings does not mean that the statements
received have actually been coerced, but only that courts
will presume the privilege against compulsory self-incrimi-
nation has not been intelligently exercised.” Id. at 310-11.
If a prior statement has actually been coerced, “the time
that passes between confessions, the change in place of in-
terrogations, and the change in identity of the interrogators
all bear on whether that coercion has carried over to the
second confession.” Id. at 310. However, “absent deliberately
coercive or improper tactics in obtaining the initial state-
ment, the mere fact that a suspect has made an unwarned
admission does not warrant a presumption of compulsion”
as to the second statement. Id. at 314. Where the initial
unwarned statement was voluntary, the admissibility of the
second statement depends only on whether it, too, was
voluntary, and obtained in compliance with Miranda. Id. at
318. Thus, “a suspect who has once responded to unwarned
yet uncoercive questioning is not thereby disabled from
waiving his rights and confessing after he has been given
the requisite Miranda warnings.” Id.
  The Seibert plurality followed Elstad to the extent that it
rejected application of the Fourth Amendment “fruits”
doctrine to the testimonial fruits of a Miranda violation.4


4
  In United States v. Patane, ___ U.S. ___, 124 S.Ct. 2620, 159
L.Ed.2d 667 (2004), released with Missouri v. Seibert, the Supreme
                                                     (continued...)
16                                                   No. 03-2377

Seibert, 124 S.Ct. at 2610 n.4. However, the plurality dis-
tinguished the police conduct at issue in Elstad from the
deliberate use of a question-first interrogation strategy: “Al-
though the Elstad Court expressed no explicit conclusion
about either officer’s state of mind, it is fair to read Elstad
as treating the living room conversation as a good-faith
Miranda mistake, not only open to correction by careful
warnings before systematic questioning in that particular
case, but posing no threat to warn-first practice generally.”
Id. at 2612. The plurality characterized the facts in Seibert
as presenting “the opposite extreme . . . which by any ob-
jective measure reveal a police strategy adapted to under-
mine the Miranda warnings.”5 Id. The plurality distilled
from these extremes a list of factors that may inform a
court’s judgment on whether mid-interrogation Miranda
warnings are effective in individual cases:
      The contrast between Elstad and this case reveals a
     series of relevant facts that bear on whether Miranda
     warnings delivered midstream could be effective enough
     to accomplish their object: the completeness and detail
     of the questions and answers in the first round of inter-
     rogation, the overlapping content of the two statements,
     the timing and setting of the first and the second, the
     continuity of police personnel, and the degree to which
     the interrogator’s questions treated the second round as
     continuous with the first.


4
  (...continued)
Court held that the failure to give Miranda warnings does not
require suppression of the physical fruits of the suspect’s
unwarned but voluntary statements.
5
  The plurality emphasized that its conclusion in this regard did
not turn on the subjective intent of the officer: “[b]ecause the in-
tent of the officer will rarely be as candidly admitted as it was
here . . . the focus is on facts apart from intent that show the
question-first tactic at work.” Seibert, 124 S.Ct. at 2612 n.6.
No. 03-2377                                                  17

Id. at 2612. Applying these factors to the case before the
Court, the plurality concluded that the delayed Miranda
warnings were ineffective and the statements made after
they were delivered were inadmissible. Id. at 2613.
   Justice Breyer wrote separately to state his preference for
a “fruits” rule and a good-faith exception to two-stage
interrogations: “Courts should exclude the ‘fruits’ of the
initial unwarned questioning unless the failure to warn was
in good faith.” Seibert, 124 S.Ct. at 2613 (Breyer, J., concur-
ring). He joined the plurality in full, however, predicting
that “the plurality’s approach in practice will function as a
‘fruits’ test,” in that the “truly ‘effective’ Miranda warnings
on which the plurality insists . . . will occur only when
certain circumstances—a lapse in time, a change in location
or interrogating officer, or a shift in the focus of the
questioning—intervene between the unwarned questioning
and any postwarning statement.” Id.
  Justice Kennedy also concurred, but took a different ap-
proach to the analysis of Mirandized confessions that follow
unwarned incriminating statements. Justice Kennedy viewed
the plurality’s test for admissibility as too broad, calling for
a multifactor objective inquiry into the “effectiveness” of
midstream Miranda warnings in all cases involving two-
stage interrogations. Seibert, 124 S.Ct. at 2614 (Kennedy,
J., concurring). He rejected the general proposition that a
Miranda violation in connection with one statement nec-
essarily threatens the admissibility of other statements taken
in full compliance with Miranda: “[I]t would be extravagant
to treat the presence of one statement that cannot be
admitted under Miranda as sufficient reason to prohibit
subsequent statements preceded by a proper warning.” Id.
at 2615.
  Justice Kennedy narrowed the focus to the deliberate cir-
cumvention of Miranda. “The Miranda warning was with-
held [from Seibert] to obscure both the practical and legal
18                                              No. 03-2377

significance of the admonition when finally given.” Id. He
favored the following rule: “When an interrogator uses this
deliberate, two-step strategy, predicated upon violating
Miranda during an extended interview, postwarning state-
ments that are related to the substance of prewarning state-
ments must be excluded absent specific, curative steps.” Id.
The sufficiency of the curative measures would depend upon
their capacity to “ensure that a reasonable person in the
suspect’s situation would understand the import and effect
of the Miranda warning.” Id. at 2616. Justice Kennedy
suggested that “a substantial break in time and circumstances
between the prewarning statement and the Miranda warn-
ing may suffice in most circumstances, as it allows the
accused to distinguish the two contexts and appreciate that
the interrogation has taken a new turn.” Id. He added that
providing the suspect with an explanation of the likely
inadmissibility of the unwarned statement “may be suffi-
cient” as a curative measure. Id.
  Justice Kennedy made it clear, however, that he would
apply this test “only in the infrequent case, such as we have
here, in which the two-step interrogation technique was used
in a calculated way to undermine the Miranda warning.”
Id. That is, “[t]he admissibility of postwarning statements
should continue to be governed by the principles of Elstad
unless the deliberate two-step strategy was employed.” Id.
On the facts before the Court, he concluded that the ques-
tion-first tactic represented an “intentional misrepresenta-
tion of the protection that Miranda offers and does not serve
any legitimate objectives that might otherwise justify its
use.” Id. at 2615. Because no curative steps were taken,
Justice Kennedy joined the plurality in concluding that the
defendant’s postwarning statement was inadmissible. Id. at
2615-16.
  Justice O’Connor dissented in Seibert, joined by Chief
Justice Rehnquist and Justices Scalia and Thomas. The
dissenting justices would have evaluated the two-step inter-
No. 03-2377                                                19

rogation under the voluntariness standard established in
Elstad. “Elstad commands that if Seibert’s first statement
is shown to have been involuntary, the court must examine
whether the taint dissipated through the passing of time or
a change in circumstances.” Seibert, 124 S.Ct. at 2619
(O’Connor, J., dissenting). Under Elstad, if the first state-
ment was voluntary (or if involuntary, the change in time
and circumstances removed the taint), then the second
statement is admissible unless it was involuntary despite
the Miranda warning. Id.
  What emerges from the split opinions in Seibert is this: at
least as to deliberate two-step interrogations in which
Miranda warnings are intentionally withheld until after the
suspect confesses, the central voluntariness inquiry of
Elstad has been replaced by a presumptive rule of exclu-
sion, subject to a multifactor test for change in time, place,
and circumstances from the first statement to the second.
According to the plurality, the multifactor test—timing and
location of interrogations, continuity of police personnel,
overlapping content of statements, etc.—measures the “ef-
fectiveness” of midstream Miranda warnings and applies in
all cases involving sequential unwarned and warned admis-
sions. In Justice Kennedy’s view, however, an inquiry into
change in time and circumstances between the prewarning
and postwarning statements—what he called “curative
steps”—is necessary only in cases involving the deliberate
use of a two-step interrogation strategy calculated to evade
the requirements of Miranda. Justice Kennedy thus provided
a fifth vote to depart from Elstad, but only where the police
set out deliberately to withhold Miranda warnings until
after a confession has been secured. Where the initial vio-
lation of Miranda was not part of a deliberate strategy to
undermine the warnings, Elstad appears to have survived
Seibert.
  As we have noted, Stewart did not raise the two-step
interrogation argument in the district court. This forfeiture
means we review the district court’s admission of the
20                                                  No. 03-2377

postwarning confession for plain error. United States v.
Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d
508 (1993); United States v. Westmoreland, 240 F.3d 618,
635 (7th Cir. 2003). We will not correct a forfeited error un-
less it is “plain” (that is, clear under current law) and affects
substantial rights, which usually equates to a finding of
prejudice. Olano, 507 U.S. at 732-34. Satisfaction of this
standard permits but does not require reversal. We will ex-
ercise remedial discretion to correct a plain forfeited error
affecting substantial rights only when “the error ‘seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.’ ” Olano, 507 U.S. at 736. An error may be “plain”
for purposes of the Olano test if it is clear at the time of
appellate review: “[W]here the law at the time of trial was
settled and clearly contrary to the law at the time of ap-
peal—it is enough that the error be ‘plain’ at the time of
appellate consideration.” Johnson v. United States, 520 U.S.
461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).
  Seibert was decided while this appeal was being briefed.
Both parties cited and analyzed the case—Stewart in his
reply brief, the government by supplemental submission—
and discussed it during oral argument. If Stewart’s post-
warning confession was inadmissible under either Seibert
or what remains of Elstad (more on this in a moment), then
its use against him at trial was plain error under Johnson,
520 U.S. at 468 (“it is enough that the error be ‘plain’ at the
time of appellate consideration”).
  We also conclude that the error—if there was one—af-
fected Stewart’s substantial rights. A confession is powerful
evidence in any case; in the circumstances of this case, the
admission of the confession was clearly prejudicial. Stewart
confessed in considerable detail, explaining how he stole the
getaway car, acquired the rifle from an illegal gun seller in
Kentucky, and bought the clothing and skeleton mask at
local discount stores. He provided a thorough description of
his actions before, during, and after the robbery. The tape-
No. 03-2377                                                    21

recorded confession was played for the jury and a transcript
provided so jurors could better follow what Stewart is heard
saying on the tape. The confession most certainly had a
profound effect on the verdict. There was other evidence
against Stewart, to be sure: the partial identification by
Officer Sitzman; his cell phone at the crime scene; his
strange story of having walked twenty-five blocks to get a
ride to nowhere. Still, the admission of Stewart’s taped
confession substantially affected the outcome of the trial; if
it was admitted improperly, it seriously affected the
fairness and integrity of the trial.6
  On the record before us, however, we cannot determine
whether the admission of Stewart’s confession was improper
under Seibert, or, if not improper under Seibert, whether
the initial unwarned confession would flunk the voluntari-
ness standard of Elstad such that the taint would carry over
to the second warned confession. More specifically, the
record does not speak to whether the two-step interrogation
in this case was deliberately used in circumvention of
Miranda. If it was, then the analysis of the Seibert plurality
and Justice Kennedy’s concurrence merge, requiring an
inquiry into the sufficiency of the break in time and circum-
stances between the unwarned and warned confessions.
  Much of this evidence is already in the record, and it does
not point to a separation of time and circumstances between
the two confessions. We know, for example, that the


6
   Stewart also suggests, quite summarily, that his counsel’s for-
feiture of the two-step interrogation issue in the district court
constituted ineffective assistance of counsel. But “[t]he Sixth
Amendment does not require counsel to forecast changes or ad-
vances in the law.” Valenquela v. United States, 261 F.3d 694, 700
(7th Cir. 2001) (quoting Lilly v. Gilmore, 988 F.2d 783, 786 (7th
Cir. 1993)). We cannot fault Stewart’s counsel for not predicting
the Supreme Court’s split decision in Seibert.
22                                                No. 03-2377

unwarned questioning occurred in the squad car on the way
to the police station, continued at the station, and was
conducted primarily by Detective Nelson, initially with the
assistance of Detective Winters and then two FBI agents.
We know that it was Nelson who delivered the Miranda
warnings and continued the interrogation after Stewart’s
waiver. But the record does not include the content of the
hour-long postwarning interrogation that preceded the tape-
recorded confession or the actual content of Stewart’s un-
warned confession. We therefore can only speculate about
the extent to which the three statements overlap and the
extent to which the questions treated the interrogation as
continuous, although continuity and overlap seem likely. If
the sequential interrogation process was used in deliberate
circumvention of Miranda and there is insufficient separa-
tion in time and circumstances between the unwarned and
warned confessions, then the warned confession was improp-
erly admitted and Stewart’s conviction cannot stand. Cf.
United States v. Aguilar, 384 F.3d 520, 2004 WL 2026780
(8th Cir. 2004) (treating the plurality in Seibert as the deci-
sion of the Court but finding enough evidence in the record
to determine violation of Miranda under both the plurality
opinion and Justice Kennedy’s concurrence.)
   If, on the other hand, the interrogation process at work
here was not a deliberate end run around Miranda, then
Stewart’s first statement must be evaluated for voluntari-
ness under Elstad. If involuntary, then the same sort of
inquiry into change in time and circumstances between the
first and subsequent statements will determine whether
Stewart’s tape-recorded confession was properly admitted.
                      III. Conclusion
  Accordingly, for the foregoing reasons, we AFFIRM the
district court’s conclusion that Stewart’s postwarning con-
fession was voluntary, and reject Stewart’s claims of inef-
fective assistance of counsel. On the issue of the admissibility
No. 03-2377                                               23

of the confession under Missouri v. Seibert, we REMAND the
case to the district court for further proceedings consistent
with this opinion.


A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                           Appeals for the Seventh Circuit




                   USCA-02-C-0072—11-9-04
