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

No. 01-1620
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

WALID H. ABDULLA,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
           No. 95 CR 734-1—Joan B. Gottschall, Judge.
                          ____________
   ARGUED JANUARY 11, 2002—DECIDED JUNE 18, 2002
                   ____________


 Before EASTERBROOK, KANNE, and DIANE P. WOOD, Circuit
Judges.
  KANNE, Circuit Judge. A jury convicted defendant Walid
H. Abdulla of aggravated bank robbery, and the district
court sentenced him to 97 months of imprisonment. Abdulla
now appeals the denial of his motion to suppress and his
enhanced sentence. We affirm.


                        I. Background
  In March 1998, Abdulla was indicted for aggravated bank
robbery in violation of 18 U.S.C. § 2113(a) and (d) for a
2                                                    No. 01-1620

bank robbery that occurred in 1995 in Wheaton, Illinois.1 At
the time of the indictment, Abdulla was living in Israel. In
January 2000, the FBI received information that Abdulla
was to arrive at the Los Angeles International Airport on a
KLM Airlines flight from Jerusalem. On January 11, 2000,
FBI Agents Catherine Moore and Patrick Conley went to
the airport and apprehended Abdulla in the customs area
shortly after his plane arrived. The agents then placed
handcuffs on Abdulla and told him that he was under ar-
rest. Immediately upon arresting Abdulla, but before ad-
vising him of his Miranda rights, Abdulla was asked:2 “Do
you know why you are being arrested?” He replied, “I
robbed a bank, everyone knows I robbed a bank.” During
the next twenty minutes, the agents stood with Abdulla
while customs agents searched his bags. During this time,
Abdulla made the following statements: “Four years in the
Holy Land can change a person. I came back to fix things.”
Further, he repeated, “I robbed a bank, everyone knows I
robbed a bank.” Neither of these statements was made in
response to a question by Agents Moore or Conley, or by
anyone else.
  The agents took Abdulla to their car and drove him to the
FBI office, which was approximately thirty minutes from
the airport. At this point, Abdulla still had not been advised
of his Miranda rights. During the car ride, Abdulla stated
for the third time, “I robbed a bank, everyone knows I
robbed a bank.” This statement was not made in response
to a question. Agent Conley then asked Abdulla what he
meant by “everyone.” Abdulla responded that he had been



1
  Abdulla was also charged with using a handgun during the
commission of a crime of violence in violation of 18 U.S.C.
§ 924(c)(1). The jury acquitted him on this charge, which is irrele-
vant to the matters on appeal.
2
    Both agents recall being the one who asked the question.
No. 01-1620                                                3

named on the television show America’s Most Wanted and
that “everyone” meant everyone in Israel and the United
States. In addition, Abdulla asked, “How much time do you
think I’ll get for the bank robbery—the gun I used wasn’t
real?” Again, no question prompted this statement, and, in
fact, the statement was preceded by a couple of minutes of
silence. After arriving at the FBI office, Abdulla was read
his Miranda rights and made no further statements. Before
trial, Abdulla moved to suppress all of the above state-
ments.
  At the suppression hearing, Agent Moore testified that
in her four years with the FBI, she had arrested ten people.
She testified that immediately upon arresting all ten of
these people, she asked whether they knew why they were
being arrested. Agent Moore explained that none of the
suspects had ever made a confession in response to this
question. Agent Conley testified that in his eight years with
the FBI, he had arrested between 50 and 100 people. He
further stated that immediately upon arresting most of
these people, he asked the suspects if they knew why they
were being arrested. Agent Conley also explained that in
his experience, this question had never elicited an incrimi-
nating response. Finally, he testified that he asked Abdul-
la whether he knew why he was being arrested in order to
ascertain Abdulla’s understanding of the arrest process and
of what was happening to him. Ultimately, the district court
ruled that all of Abdulla’s statements were admissible ex-
cept the statement in which Abdulla explained the meaning
of “everyone.”
  At Abdulla’s trial, the government entered the following
into evidence in addition to Abdulla’s statements: A robber
entered the First National Bank of Wheaton, pointed a
gun at bank teller Catherine Simon, and ordered Simon
and bank employee Laura Perna to fill a paper bag with
money, which they did. The robber had been wearing a
bandana around his face when he first entered the bank,
4                                               No. 01-1620

but had pulled it down in order to speak with the tellers,
and thus had revealed his face. The robber then fled from
the bank, at which point Perna went to a bank office across
the street from the bank and informed Senior Vice Presi-
dent Ronald Jozwiak of the robbery. Jozwiak then left his
office and saw a car with Illinois license plate number HDT
458 speed away from the bank’s parking lot.
  The FBI searched the Illinois Secretary of State data-
bases and ascertained that the car with license plate HDT
458 was registered to Abdulla. Several days later, FBI
agents went to Abdulla’s residence in Orland Park, Illinois
and saw Abdulla’s car parked there. The agents then spoke
with Abdulla’s estranged wife Nadia Salem, who told them
that she did not know of Abdulla’s whereabouts. Salem then
gave the FBI a photograph of Abdulla. Approximately one
week after the robbery, a photospread was prepared from
that photograph and was shown to the bank tellers pres-
ent during the robbery. Three of the tellers (Perna, Diane
Stewart, and Cathy Distazio) identified Abdulla in the
photospread. In addition, during trial, these three tellers
made in-court identifications of Abdulla as the person who
had robbed the bank.
  Ultimately, the jury convicted Abdulla of aggravated bank
robbery, and the government moved to enhance his sen-
tence pursuant to U.S.S.G. § 2B3.1(b)(2)(B), which directs
the district court to enhance by six levels if “a firearm was
otherwise used” during the commission of the robbery. The
district court agreed with the government and enhanced
Abdulla’s sentence pursuant to that Guideline. The district
court then sentenced Abdulla to 97 months of imprison-
ment.


                       II. Analysis
  On appeal, Abdulla argues that the district court erred
in denying his motion to suppress and that his sentencing
No. 01-1620                                                  5

enhancement violated the rule set forth in Apprendi v. New
Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000).


              A. Denial of Motion to Suppress
  Abdulla made several incriminating statements shortly
after being arrested. First, the agents asked him, “do you
know why you are being arrested,” to which he responded,
“I robbed a bank, everyone knows I robbed a bank” (the
“initial statement”). Further, without being prompted by
any question, he repeated this statement on two other
occasions—in the customs area of the airport and in the
agents’ car on the way to the FBI office (the “subsequent
statements”).3 The district court denied his motion to sup-
press all of these statements, which were received into
evidence at his trial. Abdulla makes two arguments with
respect to the denial of his motion to suppress: First, he
argues that the agents’ question “do you know why you are
being arrested?” was a custodial interrogation, and there-
fore, because he had not yet been advised of his Miranda
rights, his initial statement should have been suppressed.
Second, he argues that if the agents’ question was a cus-
todial interrogation, then his subsequent statements were
“fruit of the poisonous tree” and therefore should also have
been suppressed.
  It is axiomatic that suspects must be advised of certain
constitutional rights before being subjected to custodial
interrogation. See Miranda v. Arizona, 384 U.S. 436, 444,
86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Accordingly, a sus-


3
  In addition, Abdulla stated, “Four years in the Holy Land can
change a person. I came back to fix things,” and asked, “How
much time do you think I’ll get for the bank robbery—the gun I
used wasn’t real?” Neither of these statements was prompted by
a question.
6                                                No. 01-1620

pect must be both “in custody” and subjected to “interroga-
tion” before the Miranda warnings requirement is trig-
gered. United States v. Yusuff, 96 F.3d 982, 987 (7th Cir.
1996). An individual is considered “in custody” when his
movement is restrained to the degree comparable to a for-
mal arrest. See id. Abdulla and the government agree that
he was “in custody” when the agents told him he was under
arrest and placed handcuffs on him at the airport, but
disagree about whether the agents’ question constituted an
“interrogation.” In Rhode Island v. Innis, 446 U.S. 291, 300-
01, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980) (footnotes omit-
ted), the Supreme Court stated that “interrogation” means
“any words or actions on the part of the police (other than
those normally attendant to arrest and custody) that the
police should know are reasonably likely to elicit an incrimi-
nating response from the suspect.” Under this court’s inter-
pretation of Innis, the test is “whether a reasonable objec-
tive observer would have believed that the . . . question[ ]
claimed by [the defendant] to have been unlawful interroga-
tion [was] in fact ‘reasonably likely to elicit’ an incriminat-
ing response.” United States v. Westbrook, 125 F.3d 996,
1002 (7th Cir. 1997) (citations omitted).
  It is unnecessary for us to address whether the agents’
question in this case constitutes an interrogation because
even if it were, we would still affirm because Abdulla’s
subsequent statements, which were identical to his re-
sponse to this question, were admissible. As a preliminary
matter, we note that if Abdulla’s subsequent statements
had been the only confessions in this case, then they would
have been admissible because they were volunteered state-
ments not made in response to any question posed by the
agents. See Andersen v. Thieret, 903 F.2d 526, 531 (7th Cir.
1990) (holding that suspect’s statement, “I stabbed her,”
which was not made in response to a question by the police,
was a volunteered statement not subject to Miranda).
Abdulla argues, however, that the subsequent statements
No. 01-1620                                                7

were “fruit of the poisonous tree” stemming from the initial
Miranda violation, and therefore were inadmissible. How-
ever, the Supreme Court has rejected the application of
the “fruit of the poisonous tree” doctrine to non-coercive
Miranda violations. See Oregon v. Elstad, 470 U.S. 298,
308-18, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985). In that
case, the suspect made an initial incriminating statement
before being advised of his Miranda rights, but an hour
later, was advised of and waived his Miranda rights and
executed a written confession. See id. at 301-02. The Court
initially noted that Miranda requires the exclusion of “un-
warned statements that are otherwise voluntary,” id. at
307, but went on to examine to what extent such a technical
violation of Miranda should have on the admissibility of
subsequent statements. See id. at 308-09. With respect to
this issue, the Court stated:
    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 ineffec-
    tive for some indeterminate period . . . . [T]he admissi-
    bility of any subsequent statement should turn in these
    circumstances solely on whether it is knowingly and
    voluntarily made.
Id. at 309. The Court then held that “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. at 318. In determining whether the subsequent confes-
sions were voluntary, a court “must examine the surround-
ing circumstances and the entire course of police conduct.”
Id.
  Some courts have taken the view that Elstad signaled the
end of any use of the fruit of the poisonous tree doctrine
8                                                     No. 01-1620

based on a Miranda violation. See, e.g., United States v.
DeSumma, 272 F.3d 176, 180-81 (3d Cir. 2001). Other
courts have stated that “Elstad does not wholly bar the door
to excluding evidence derived from a Miranda violation.”4
United States v. Byram, 145 F.3d 405, 409 (1st Cir. 1998).
We also note that the facts upon which Elstad’s holding
was based differ from the facts in our case in that Abdulla
did not waive his Miranda rights prior to making his sub-
sequent statements. However, at least one other court has
turned to Elstad “for guidance in determining the voluntari-
ness of [the defendant’s] second confession” when that sec-
ond confession was not preceded by Miranda warnings.
Medeiros v. Shimoda, 889 F.2d 819, 823 (9th Cir. 1989). In
doing so, the Ninth Circuit noted that the “fundamental
import of the [Fifth Amendment] privilege while an individ-
ual is in custody is not whether he is allowed to talk to the
police without the benefit of warnings and counsel, but
whether he can be interrogated.” Id. at 825 (quoting
Miranda, 384 U.S. at 478) (emphasis in original). Therefore,
without deciding whether the fruit of the poisonous tree
doctrine can ever apply to a Miranda violation, we turn
to whether Elstad’s underlying logic (a first confession that
is voluntary, but that violates Miranda, will not bar the
admission of a second voluntary confession) can apply to
bar the use of the fruits doctrine in this case, as did the
Ninth Circuit in Medeiros.
  In determining whether Abdulla’s first confession was
coerced or whether it was voluntary, we note that a “confes-


4
  The First Circuit in Byram held that the fruit of the poisonous
tree doctrine barred the admission of the defendant’s second state-
ment in part because “the original Miranda violation was not
technical” in that the police induced the defendant to make in-
criminating statements by assuring him that he would not be
“implicated in any of this.” Id. at 409. This fact distinguishes that
case from the case at bar.
No. 01-1620                                                 9

sion is voluntary if, in light of the totality of the circum-
stances, the confession is the product of a rational intellect
and free will and not the result of physical abuse, psycho-
logical intimidation, or deceptive interrogation tactics that
have overcome the defendant’s free will.” United States v.
Dillon, 150 F.3d 754, 757 (7th Cir. 1998). Further, “coercive
police activity is a necessary predicate to the finding that a
confession is not voluntary.” Id. (quotation omitted). We
have no problem concluding that even if Abdulla’s initial
statement violated Miranda, it was voluntary and not co-
erced. The agents merely asked him a simple question, and
he gave an elaborated, volunteered answer. As the district
court observed, “the agents had only been with Mr. Abdulla
for a very short time [before his initial statement], there
is no indication that any pressure was put on him.”
  Turning, therefore, to whether Abdulla’s subsequent
statements were voluntary despite the initial Miranda vio-
lation, we “examine the surrounding circumstances and the
entire course of police conduct.” Elstad, 470 U.S. at 318.
In Medeiros, the police pulled over the defendant’s car,
which had matched the description of a car at the scene
of a shooting. See 889 F.2d at 821. Without first advising
the defendant of his Miranda rights, the police officer asked
him from where he was coming. See id. The defendant re-
plied that he had just been at a local bar and then sponta-
neously incriminated himself with respect to the shooting.
See id. The police officer then arrested the defendant and
took him to the police station. See id. After being booked,
but before advising the defendant of his Miranda rights,
two different police officers accompanied the defendant
while the defendant went to receive medical treatment. See
id. Prior to and during receiving treatment, and without
any prompting from either officer, the defendant made more
inculpatory statements about his involvement in the shoot-
ing. See id. At the defendant’s trial for manslaughter, the
district court granted the defendant’s motion to suppress
10                                              No. 01-1620

his first statement, but allowed the subsequent statements
to be admitted. See id. at 821-22 The defendant was ulti-
mately convicted, and he appealed. See id. at 822.
  With respect to the voluntariness of the defendant’s
subsequent statements, the Ninth Circuit held that they
were voluntary, and thus were properly admitted despite
the Miranda violation with respect to the first statement.
See id. at 824-25. In support of its conclusion, the court
placed great emphasis on the fact that the defendant made
the subsequent statements spontaneously and not as the
result of interrogation—“because [the defendant] chose to
speak voluntarily, we conclude that his second statement
is admissible.” Id. at 825. Further, the court stated that
although the subsequent statements were made only thirty
minutes after the first statement was made, the fact that
they were made at a different location supported their
voluntariness. See id. In our case, as in Medeiros, Abdulla
spontaneously made his subsequent statements, which were
not made in response to a question. Further, he made his
statements over a fifty-minute period in two locations—at
the customs area in the airport and in the agents’ car on the
way to the FBI office. Therefore, because of the specific
facts in this case, we conclude that Abdulla’s subsequent
statements were voluntary, and thus were properly admit-
ted.
  In any event, even if all of Abdulla’s statements were
improperly admitted, we would still affirm because their
admission was harmless. See Westbrook, 125 F.3d at 1003
(applying harmless error analysis to Miranda violation). In
this case, the other evidence pertaining to Abdulla’s guilt
was overwhelming—three bank employees identified him as
the robber and his car was seen speeding away from the
scene of the crime. Therefore, because he would have been
convicted absent the admission of his statements, we affirm
the denial of Abdulla’s motion to suppress.
No. 01-1620                                               11

                       B. Apprendi
   Next, Abdulla argues that the district court’s application
of U.S.S.G. § 2B3.1(b)(2) violated the rule set forth in
Apprendi, which states, “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be . . .
proved beyond a reasonable doubt.” 530 U.S. at 490 (empha-
sis added). Abdulla was convicted of aggravated bank
robbery, which carries a statutory maximum penalty of
twenty-five years’ imprisonment. See 18 U.S.C. § 2113(d). In
this case, Abdulla was sentenced to 97 months of imprison-
ment, which is well below the statutory maximum, and
therefore, his Apprendi argument fails. See, e.g., United
States v. Williams, 238 F.3d 871, 876-77 (7th Cir. 2001)
(“[W]hen a defendant is sentenced to a term of imprison-
ment within the statutory maximum for the crime of which
he was convicted, Apprendi is beside the point.”).


                     III. Conclusion
  For the foregoing reasons, we AFFIRM the district court’s
denial of Abdulla’s motion to suppress and Abdulla’s sen-
tence.

A true Copy:
       Teste:

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




                    USCA-97-C-006—6-18-02
