                             UNPUBLISHED ORDER
                          Not to be cited per Circuit Rule 53


              United States Court of Appeals
                              For the Seventh Circuit
                              Chicago, Illinois 60604

                                Argued May 31, 2006
                               Decided August 25, 2006

                                        Before

                     Hon. TERENCE T. EVANS, Circuit Judge

                     Hon. ANN CLAIRE WILLIAMS, Circuit Judge

                     Hon. DIANE S. SYKES, Circuit Judge

No. 05-2988                                      Appeal from the United States
                                                 District Court for the
UNITED STATES OF AMERICA,                        Southern District of Indiana,
              Plaintiff-Appellee,                Evansville Division.

      v.                                         No. EV 01-32-CR-01-Y/H

TIMOTHY L. STEWART,                              Richard L. Young,
             Defendant-Appellant.                Judge.


                                      ORDER

        Timothy Stewart appeals the district court’s conclusion that a confession he
made to law enforcement officials was admissible at his trial for armed bank
robbery. Stewart’s confession was elicited during a so-called “two-step” or “question
first, warn later” interrogation. This type of interrogation occurs when a suspect in
custody is initially questioned without the benefit of a Miranda1 warning, makes
inculpatory statements, and is thereupon given appropriate warnings and confirms
his earlier, unwarned statements.

      This is the second time we have reviewed the admissibility of Stewart’s
confession. In our first decision we remanded the issue to the district court for


      1
           Miranda v. Arizona, 384 U.S. 436 (1966).
No. 05-2988                                                                   Page 2

consideration of whether, in light of the Supreme Court’s plurality opinion in
Missouri v. Seibert, 542 U.S. 600 (2004), the two-step interrogation process was
employed by the officers in this case in a deliberate attempt to circumvent the
requirements of Miranda. United States v. Stewart, 388 F.3d 1079 (7th Cir. 2004).
On remand, the district court held an evidentiary hearing and concluded that no
end run around Miranda was intended, but the court did not support this
conclusion with the factual findings we think are necessary for our review of its
decision. We therefore must once again remand this case to the district court for
further and more specific factfinding.

                                    Discussion

       The facts surrounding Stewart’s detention and interrogation were discussed
thoroughly in our initial opinion, and we need not reiterate them here in their
entirety. Stated briefly, Stewart was initially detained at a checkpoint established
near the scene of an armed bank robbery in Evansville, Indiana, because he
generally matched a physical description of the robber. Stewart was taken into
custody shortly after he was stopped when his cell phone was found lying next to
the abandoned getaway car.

       Without the benefit of Miranda warnings, Stewart was questioned by
Evansville Police Detectives Winters and Nelson during the ensuing five-minute
ride to the police station and for approximately ten minutes after arrival at the
station. During his pre-Miranda interview at the station with Detectives Winters
and Nelson, Stewart first claimed that another man committed the robbery and
that Stewart only provided the robber with the gun and car used in the crime.

       Winters and Nelson then left Stewart alone in the interview room, and two
agents from the Federal Bureau of Investigation arrived at the station. Nelson and
the two federal agents reentered the room and resumed questioning Stewart, at
which point Stewart admitted that he robbed the bank and acted alone. Stewart
was then read his rights for the first time and signed a Miranda waiver form. The
questioning continued uninterrupted for the next hour, and Stewart made a
tape-recorded statement in which he confirmed and elaborated upon the details of
his earlier, unwarned and unrecorded confession. Over the objection of defense
counsel, this tape-recorded confession was admitted into evidence at Stewart’s trial.
Stewart was convicted of the bank robbery and was sentenced to 159 months in
prison.

       Following his conviction, Stewart appealed several issues, and this panel
rejected all save one. We reserved ruling on the question of whether Stewart’s
recorded confession was inadmissible because the two-step interrogation process
was inconsistent with Miranda as interpreted by the plurality in Seibert. Using the
No. 05-2988                                                                       Page 3

Marks2 approach to the analysis of plurality opinions, we gleaned the following rule
from Seibert:

              [A]t least as to deliberate two-step interrogations in which Miranda
              warnings are intentionally withheld until after the suspect confesses,
              the central voluntariness inquiry of [Oregon v. Elstad, 470 U.S. 298
              (1985)] has been replaced by a presumptive rule of exclusion, subject to
              a multifactor test for change in time, place and circumstances from the
              first statement to the second. . . . Where the initial violation of
              Miranda was not part of a deliberate strategy to undermine the
              warnings, Elstad appears to have survived Seibert.

Stewart, 388 F.3d at 1090.

      We then found that the record was silent as to the crucial Seibert
inquiry—whether the “two-step interrogation in this case was deliberately used in
circumvention of Miranda,” Id. at 1091—and remanded the case for further
proceedings. We held that subsequent factfinding by the district court was needed
to answer the following questions:

              If the sequential interrogation process was used in deliberate
              circumvention of Miranda and there is insufficient separation in time
              and circumstances between the unwarned and warned confessions,
              then the warned confession was improperly admitted and Stewart’s
              conviction cannot stand. . . . 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 voluntariness
              under Elstad.

Id. at 1091-92.

       As previously noted, the district court held an evidentiary hearing and then
determined in a written opinion that Stewart’s interrogation was “not an end run
around Miranda.” In support of this holding, the court stated: “There is no evidence
that the [Evansville Police Department] has ever had a policy which employs the


      2
         In Marks v. United States, 430 U.S. 188, 193 (1977), the Supreme Court held
that “[w]hen 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.’” In Seibert, Justice Kennedy’s opinion concurring in the judgment provided
the narrowest grounds for decision and thus constitutes the holding of the Court. See
United States v. Stewart, 388 F.3d 1079, 1090 (7th Cir. 2004).
No. 05-2988                                                                      Page 4

two-step interrogation technique, nor evidence that the EPD has ever trained or
instructed their officers to employ such a technique.” The court then went on to
hold that the prewarning statement had been voluntarily made and that there was
consequently no error in admission of the postwarning confession at trial.3

       In this second round of appellate proceedings, Stewart asks us to (1) revisit
our original decision concerning the proper interpretation of Seibert and the
voluntariness of his post-Miranda statement and (2) find that the district court
erred in concluding that the Evansville police did not intentionally withhold
warnings in a deliberate effort to circumvent Miranda as a means to exact
inculpatory statements. As to the first of these contentions, nothing has changed
since our decision in the first appeal, and Stewart is merely trying to have a second
kick at the cat on issues he lost the first time around. We therefore decline to
reexamine our previous decision. See Vidimos, Inc. v. Wysong Laser Co., Inc.,
179 F.3d 1063, 1065-66 (7th Cir. 1999). We proceed to a discussion of the district
court’s conclusion concerning the question on which we ordered a remand—whether
the police in this case intentionally used the two-step interrogation in deliberate
circumvention of Miranda.

        Stewart argues, and we agree, that the district court’s analysis was unduly
limited to a consideration of whether the Evansville Police Department had an
official policy endorsing two-step interrogation or provided training in which its
officers were instructed to employ such a technique. These considerations are
potentially relevant to the broader question of officer intent but by themselves are
by no means dispositive of the issue. The threshold matter for determination under
Seibert is whether the officers intentionally withheld Miranda warnings as part of a
deliberate strategy to elicit inculpatory statements in circumvention of Miranda;
such an interrogation strategy might be used in a given case in the absence of an
official policy requiring its use.4 Rather than concentrate exclusively on the
presence or absence of a departmental policy, the primary focus of the inquiry
should be on the explanation given by the officer for the failure to administer
warnings in a timely fashion and the credibility of that explanation in light of the
totality of relevant circumstances surrounding the interrogation.




      3
        The court also held that Stewart’s post-Miranda statement was voluntarily
made, but this issue was not one that we remanded for further consideration. To the
contrary, our opinion specifically held that “we AFFIRM the district court’s conclusion
that Stewart’s postwarning confession was voluntary . . . .” Stewart, 388 F.3d at 1092.
      4
         Indeed, we think it unlikely, in the wake of Seibert and the cases interpreting
it, that a law enforcement agency would maintain an official policy that invites
suppression motions under Seibert.
No. 05-2988                                                                    Page 5

       We reluctantly conclude that the district court’s decision does not include the
factual findings necessary for us to meaningfully review its conclusion that the
interrogation in this case was not deliberately calculated to circumvent Miranda.
Particularly conspicuous in its absence is any discussion of the credibility of
Detective Nelson’s testimony concerning the reasons for the failure to administer
Miranda warnings prior to eliciting Stewart’s initial confession.

      Accordingly, the district court’s decision is VACATED and we once again
REMAND this case for more specific factfinding consistent with both this opinion
and our original opinion in this case.
