United States v. Modesto Gonzalez, III ( 2020 )

Case: 19-50725 Document: 00515444245 Page: 1 Date Filed: 06/08/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 8, 2020
No. 19-50725 Lyle W. Cayce
Clerk
Consolidated with 20-50395
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
MODESTO GONZALEZ III, also known as Tres,
Defendant–Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:18-CR-64-1
Before BARKSDALE, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM:*
Modesto Gonzalez III appeals his convictions for wire fraud and unlawful
possession of a firearm by a felon. Specifically, Gonzalez argues that his
statements to law enforcement officers were obtained illegally and should have
been suppressed. We disagree and affirm.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 19-50725 Document: 00515444245 Page: 2 Date Filed: 06/08/2020
No. 19-50725
I
In January 2018, state and federal agents executed a federal search
warrant at Gonzalez’s home. The warrant authorized officers to seize evidence
of Gonzalez’s two suspected crimes: (1) defrauding illegal aliens by falsely
claiming to be a federal agent capable of providing immigration assistance in
exchange for substantial payments, and (2) illegally possessing firearms and
ammunition as a felon.
Prior to executing the search warrant, the agents discussed their
approach. They planned to knock on Gonzalez’s door and wait for a response
rather than use force to enter. DEA Agent Piekenbrock, who was responsible
for the impersonation investigation, told the other agents that he “was going
to try to interview [Gonzalez], but that was obviously no guarantee.”
Piekenbrock did not intend to provide Gonzalez with a Miranda warning before
such an interview because he did not plan to arrest him that day.
Around 7:10 a.m., “between eight and ten” agents arrived at Gonzalez’s
home to execute the warrant. Their clothing identified them as law
enforcement, but they were not wearing tactical clothing and did not have their
weapons drawn.
Piekenbrock, accompanied by other agents, knocked on the front door.
Gonzalez answered. After a brief discussion with the agents, he stepped onto
the porch. Gonzalez was “upset” and “immediately agitated.” He loudly said,
“[l]et’s get going and let’s just get this over with,” that the agents were “going
to get [his] family killed,” that the agents should “take [him], and . . . go,” used
profanity, and appeared to be “about to start a fight.” The agents, by contrast,
maintained a “[m]easured” and calm tone.
The agents told Gonzalez that they came to execute a search warrant—
not an arrest warrant. But Gonzalez was still agitated. Due to his “aggressive
behavior,” agents handcuffed Gonzalez and temporarily seated him on a chair
2
Case: 19-50725 Document: 00515444245 Page: 3 Date Filed: 06/08/2020
No. 19-50725
on the porch. Soon thereafter, agents moved Gonzalez to a chair next to the
stairs leading to the front door of his home to reduce crowding near the
doorway. Piekenbrock informed Gonzalez that he was not under arrest at that
time. Gonzalez’s stepfather, who was not handcuffed or otherwise restrained,
sat next to him on another chair.
About fifteen minutes after Gonzalez was seated next to the stairs, a
supervisor informed Gonzalez that if he remained seated and calm, the
handcuffs would be removed. And then they were. Gonzalez had been
handcuffed for about twenty minutes. He remained seated near the stairs
while his home was searched. During the search, agents recovered, among
other things, a loaded revolver from Gonzalez’s bedroom and two shotguns that
had been mounted on the living room wall.
About thirty to forty minutes after the handcuffs were removed,
Piekenbrock and two other agents asked Gonzalez if he would be willing to
speak with them. Gonzalez agreed. So, the agents and Gonzalez walked about
forty feet to Piekenbrock’s vehicle to talk. Piekenbrock sat in the driver’s seat,
Gonzalez sat in the front passenger seat, and the other two agents sat in the
back seat. Piekenbrock did not lock the doors. He turned the vehicle and its
heater on but partially opened the vehicle’s windows. During their
conversation, the agents’ tone remained “[m]easured,” and “very professional.”
And the agents never drew their weapons.
Initially, Piekenbrock reminded Gonzalez that he was not under arrest
and that they only had a search warrant. Then Piekenbrock questioned
Gonzalez regarding his impersonation scheme. Gonzalez admitted that he had
committed “fraud” by taking hundreds of thousands of dollars from illegal
aliens after falsely promising to get their immigration status adjusted, though
he framed his actions as “something similar to a loan.” During this roughly
3
Case: 19-50725 Document: 00515444245 Page: 4 Date Filed: 06/08/2020
No. 19-50725
thirty-five-minute discussion, Gonzalez volunteered information without being
prompted to do so. He also consented to a search of his cell phone.
Next, Agent Flores of the Bureau of Alcohol, Tobacco, Firearms and
Explosives—who was in the back seat of the vehicle—questioned Gonzalez
about the shotguns and revolver recovered from his home. Gonzalez admitted
that he had mounted those shotguns on his living room walls and that his
fingerprints would likely be found on them. Plus, Gonzalez admitted that he
had bought the loaded revolver from a member of the Aryan Brotherhood.
At this point, about forty minutes into the interview, Piekenbrock
“stopped the interview” because Gonzalez’s admission about the revolver
“changed things” and could result in Gonzalez’s arrest that day. So
Piekenbrock provided him Miranda warnings. Gonzalez did not request a
lawyer. Instead, Gonzalez acknowledged that he understood his rights, waived
them, and agreed to continue the questioning. This post-Miranda interview
lasted less than fifteen minutes. Gonzalez repeated his statements about the
impersonation scheme and the recovered firearms. The agents never
confronted Gonzalez with his pre-warning statements. At no point during the
pre- or post-warning interview did Gonzalez ask to stop the questioning, to
leave the vehicle, or for an attorney. And agents repeatedly told Gonzalez that
he was not under arrest.
In response to Gonzalez’s post-warning statements, Flores called an
Assistant U.S. Attorney for legal advice regarding how to proceed and whether
to arrest Gonzalez for being a felon in possession of a firearm. It was agreed
that Gonzalez would be criminally charged with illegal firearms possession.
So, Flores explained to Gonzalez that he would be arrested. Then Gonzalez was
removed from the vehicle, handcuffed, and returned to the vehicle for transport
to jail.
4
Case: 19-50725 Document: 00515444245 Page: 5 Date Filed: 06/08/2020
No. 19-50725
A grand jury charged Gonzalez in a one-count indictment with being a
felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Gonzalez moved to
suppress all his statements, arguing that the agents had intentionally
conducted a prohibited, two-step interrogation to avoid Miranda’s
requirements. The district court held a hearing at which both Piekenbrock and
Flores testified. Following this hearing, the district court denied Gonzalez’s
motion to suppress. The court concluded that (1) Gonzalez was not in Miranda
custody when the pre-Miranda interview occurred; (2) the agents had not
deliberately employed a two-step strategy to undermine the warning; and (3)
Gonzalez’s statements were voluntary.
After the denial of his motion to suppress, Gonzalez entered into a
conditional plea agreement with the Government. Gonzalez pled guilty to the
felon-in-possession charge, and he waived his right to an indictment and pled
guilty to an information charging wire fraud, in violation of 18 U.S.C. § 1343.
He was sentenced to 120 months’ imprisonment. Under the plea agreement,
Gonzalez reserved the right to appeal the judgment for the limited purpose of
securing appellate review of the district court’s denial of his motion to
suppress. Gonzalez timely appealed.
II
“In an appeal from a district court’s ruling on a motion to suppress, this
Court reviews factual findings in support of the ruling under the clearly
erroneous standard and legal conclusions de novo.” United States v. Cavazos,
668 F.3d 190, 193 (5th Cir. 2012). “Our review is particularly deferential where
denial of the suppression motion is based on live oral testimony because the
judge had the opportunity to observe the demeanor of the witnesses.” United
States v. Lim, 897 F.3d 673, 685 (5th Cir. 2018) (cleaned up). “The evidence is
viewed in the light most favorable to the party who prevailed in the district
court.” Cavazos, 668 F.3d at 193. In this case, that party is the Government.
5
Case: 19-50725 Document: 00515444245 Page: 6 Date Filed: 06/08/2020
No. 19-50725
“The question of whether Miranda’s guarantees have been
impermissibly denied to a criminal defendant, assuming the facts as
established by the trial court are not clearly erroneous, is a matter of
constitutional law, meriting de novo review.” United States v. Harrell, 894 F.2d
120, 122–23 (5th Cir. 1990); see also, e.g., United States v. Chavira, 614 F.3d
127, 132 n.7 (5th Cir. 2010).
III
Gonzalez argues that the district court erred in refusing to suppress the
statements he made (1) prior to receiving Miranda warnings (because he
claims the agents conducted a custodial interrogation without giving him
Miranda warnings), and (2) after receiving Miranda warnings (because he
claims the agents acted deliberately to circumvent the protections of Miranda
by conducting a prohibited, two-step interrogation).
“Miranda warnings must be administered prior to ‘custodial
interrogation.’” United States v. Bengivenga, 845 F.2d 593, 595 (5th Cir. 1988)
(en banc). But Miranda warnings are not required if an interrogation is non-
custodial. Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam); United
States v. Garcia, 77 F.3d 857, 859 (5th Cir. 1996). Gonzalez argues that he was
in Miranda custody when agents initially interviewed him. But after reviewing
“[t]he totality of the circumstances surrounding Gonzalez’s interview,” the
district court determined that he was not in Miranda custody when he made
his unwarned statements. We find no error in this conclusion.
To determine whether someone not formally arrested was in Miranda
custody, we must first “ascertain whether, in light of the objective
circumstances of the interrogation,” Howes v. Fields, 565 U.S. 499, 509 (2012)
(internal quotation marks omitted), “a reasonable person [would] have felt he
or she was not at liberty to terminate the interrogation and leave.” Id. (quoting
Thompson v. Keohane, 516 U.S. 99, 112 (1995)) (internal quotation marks
6
Case: 19-50725 Document: 00515444245 Page: 7 Date Filed: 06/08/2020
No. 19-50725
omitted). In other words, we must determine whether “a reasonable person in
the suspect’s position would have understood the situation to constitute a
restraint on freedom of movement of the degree which the law associates with
formal arrest.” Bengivenga, 845 F.2d at 596. “The reasonable person through
whom [a court is to] view the situation must be neutral to the environment and
to the purposes of the investigation . . . .” Id.“[W]hen analyzing whether an individual was or was not in custody,” we
have “repeatedly considered certain key details,” such as (1) “the location of
the questioning,” (2) “the amount of restraint on the individual’s physical
movement,” (3) any “statements made by officers regarding the individual’s
freedom to move or leave,” (4) “the accusatory, or non-accusatory, nature of the
questioning,” and (5) “the length of the questioning.” United States v. Wright,
777 F.3d 769, 775 (5th Cir. 2015) (collecting cases).
If the court concludes that “an individual’s freedom of movement” was so
“curtailed,” then it must “ask[] the additional question whether the relevant
environment present[ed] the same inherently coercive pressures as the type of
station house questioning at issue in Miranda.” Howes, 565 U.S. at 509.
A
Here, the district court did not err by first concluding that a reasonable
person in Gonzalez’s position would not have understood the circumstances in
which he was interviewed to be a restraint on his or her freedom of movement
to the degree associated with a formal arrest.
Turning first to the location of the questioning, Gonzalez was
interviewed in an agent’s vehicle, as was the defendant in Wright. See 777 F.3d
at 777. Gonzalez sat in the front seat of the vehicle, not the back seat where
arrestees usually sit. The interview occurred on Gonzalez’s property and
within forty feet of his home rather than a secondary, off-site location.
Gonzalez could see and be seen by his family—meaning the vehicle was subject
7
Case: 19-50725 Document: 00515444245 Page: 8 Date Filed: 06/08/2020
No. 19-50725
to “public scrutiny.” See id. Thus, the location of the interview suggests that a
reasonable person in Gonzalez’s position would not have understood the
situation to constitute a restraint on freedom of movement equivalent to formal
arrest. See id. at 771, 777 (concluding that defendant was not in custody where,
while executing a search warrant, two officers interviewed him in a police
vehicle about thirty feet from his home, defendant sat in the front seat, and
the vehicle was subject to public scrutiny).
Similarly, the amount of restraint on Gonzalez’s physical movement also
suggests that a reasonable person would not equate it with formal arrest. The
doors of the vehicle were unlocked, and the windows were partially open.
Notably, Gonzalez was not handcuffed or otherwise restrained during the
interview. Cf. Chavira, 614 F.3d at 134 (finding that defendant’s freedom of
movement was severely restrained where agents confiscated her birth
certificate and state identification and handcuffed her to a chair during the
interrogation). Although Gonzalez was briefly handcuffed earlier that
morning, the interview occurred thirty to forty minutes after the handcuffs
were removed. Unlike in Cavazos, where agents “ran into Cavazos’s bedroom .
. . and handcuffed him as he was stepping out of bed,” 668 F.3d at 192, as the
district court concluded, no evidence suggests “that Gonzalez was handcuffed
for any reason other than his belligerency.” Gonzalez “calmed down” after
speaking with his stepfather, so agents removed the handcuffs. He had only
been handcuffed for about twenty minutes, and agents had informed Gonzalez
before and while he was handcuffed that he was not under arrest. So, the
earlier, temporary handcuffing does not negate the lack of physical restraint
of Gonzalez during the interview. See United States v. Salinas, 543 F. App’x
458, 465 (5th Cir. 2013) (per curiam) (explaining that “temporary detention by
itself” does not “automatically rise to the level of custodial interrogation”); see
also Chavira, 614 F.3d at 133.
8
Case: 19-50725 Document: 00515444245 Page: 9 Date Filed: 06/08/2020
No. 19-50725
Likewise, the agents’ statements relating to Gonzalez’s freedom to move
or leave suggest that a reasonable person would not have found the restrictions
equivalent to formal arrest. By asking—rather than forcing—Gonzalez to
participate in the interview, the agents implied that he was free to terminate
the questioning and leave the vehicle at any time. And before starting the
interview, Piekenbrock reminded Gonzalez that he was not under arrest. As
discussed, agents had also informed Gonzalez before and while he was briefly
handcuffed that he was not under arrest. Although the agents’ statements
were not as clear as those in Wright, where agents explicitly told the defendant
he was “free to leave,” 777 F.3d at 771, a reasonable person would have
interpreted the statements to mean that he was in fact free to leave. And, as
the district court concluded, “the officers’ actions in telling Gonzalez to remain
seated in the chair after [the] handcuffs were removed” were not “instructions
of confinement” or “language of confinement or arrest.” See Salinas, 543 F.
App’x at 465 (“Even if Salinas were not ‘free to leave,’ that does not mean that
he was effectively under arrest for the purposes of Miranda.”). Instead, the
district court explained, “the officers were ensuring that Gonzalez had in fact
calmed down and were cautioning him not to make sudden movements or again
become belligerent.” In accordance with our obligation to view the facts in the
light most favorable to the Government, see Cavazos, 668 F.3d at 193, we agree
with this interpretation of the agents’ comments.
The nature of the questioning also weighs in favor of the interview being
deemed non-custodial. Rather than engaging in hostile, accusatory questioning
like the agents in Chavira, the agents here simply, as the district court put it,
“asked Gonzalez to tell his side of the story and he agreed to do so.” Cf. Chavira,
614 F.3d at 134 (finding that defendant’s freedom of movement was severely
restrained where agents questioned her in an increasingly accusatory manner
for thirty to forty minutes). During their conversation, the agents’ tone
9
Case: 19-50725 Document: 00515444245 Page: 10 Date Filed: 06/08/2020
No. 19-50725
remained “[m]easured” and “very professional.” As in Wright, the content of
the interview and the agents’ “tone throughout[] highlights that the
conversation was as much an opportunity taken by [Gonzalez] to tell his story
to the officers as it was an opportunity taken by the officers to get information
from [Gonzalez].” 777 F.3d at 777.
Finally, the length of the pre-warning interview—forty minutes—does
not weigh heavily on either side of the scale. See Harrell, 894 F.2d at 124 n.1
(warning against “[o]verreliance upon the length” of the questioning, as it
“injects a measure of hindsight into the analysis which we wish to avoid”). The
interviews in Wright and Cavazos—two cases the parties relied upon—both
lasted about an hour, and, as the Wright court explained, “the length of the
questioning weighs in favor of finding that it was custodial.” Wright, 777 F.3d
at 777; see also Cavazos, 668 F.3d at 194. But we have previously rejected the
“broad proposition” that “an hour-long [interview] constitutes a per se custodial
interrogation.” Harrell, 894 F.2d at 124 n.1. Here, the interview was shorter
than an hour (about forty minutes) but not so brief as to weigh heavily in the
opposite direction.
Gonzalez’s argument leans heavily on what he asserts are similarities
between the present case and Cavazos. But in addition to any factual
distinctions, there is a critical difference: We are reviewing a district court’s
denial of a motion to suppress, meaning we must review the evidence in the
light most favorable to the Government—not the defendant. See United States
v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005); cf. Cavazos, 668 F.3d at 191, 195(reviewing the district court’s grant of a motion to suppress and evaluating the
record in the light most favorable to the defendant). Plus, in Cavazos we
expressly noted that we were addressing “unique circumstances” and not
making “categorical determinations.” 668 F.3d at 195.
10
Case: 19-50725 Document: 00515444245 Page: 11 Date Filed: 06/08/2020
No. 19-50725
Considering all “the circumstances surrounding [Gonzalez’s interview],”
drawn from the record as seen in the light most favorable to the Government,
we conclude that “a reasonable person [would] have felt he or she was at liberty
to terminate the inter[view] and leave.” Id. at 193 (internal quotation marks
omitted). Compare Wright, 777 F.3d at 777 (affirming the district court’s
conclusion that the defendant was not in custody during a pre-Miranda
interview where seventeen to nineteen law enforcement officers were in and
around defendant’s home executing a search warrant; officers repeatedly
assured defendant that he was not under arrest and that he was free to leave;
and defendant was not physically restrained during the hourlong interview,
which took place about thirty feet from his home, in a car subject to public
scrutiny, and the conversation was as much an opportunity taken by defendant
to tell his story to officers as it was an opportunity taken by officers to get
information from defendant), and Salinas, 543 F. App’x at 464−65 (finding that
a reasonable person in defendant’s position would not have considered himself
under arrest where two federal marshals initially questioned him at his
apartment complex; he remained subject to public scrutiny; and he was not
restrained, even though one of the marshals retained defendant’s cell phone
and testified that defendant was not free to leave once he suspected defendant
was lying), with Cavazos, 668 F.3d at 194 (affirming the district court’s finding
that a reasonable person would believe he was not “at liberty to terminate the
interrogation and leave” where more than a dozen agents entered his home,
handcuffed him as he stepped out of bed, separated him from his family, and
two federal agents interrogated him for at least an hour—during which time
they observed his restroom use and only allowed him to make a phone call in
such a way that agents could listen to the conversation), and Chavira, 614 F.3d
at 134 (finding that defendant’s freedom of movement was severely restrained
where agents confiscated her birth certificate and state identification; moved
11
Case: 19-50725 Document: 00515444245 Page: 12 Date Filed: 06/08/2020
No. 19-50725
her to a windowless, 14-by-10-foot secure room; handcuffed her to a chair;
questioned her in an increasingly accusatory manner for thirty to forty
minutes; and detained the minor in her care).
Because this “freedom-of-movement test identifies . . . a necessary . . .
condition for Miranda custody,” Maryland v. Shatzer, 559 U.S. 98, 112 (2010),
we conclude that Gonzalez was not in Miranda custody when he made his
unwarned statements.
B
But even if Gonzalez’s freedom of movement were so limited, the district
court determined that the environment in which he was interviewed did not
“present[] the same inherently coercive pressures as the type of station house
questioning at issue in Miranda.” Howes, 565 U.S. at 509. And the district
court did not err in reaching this conclusion.
About forty minutes after the handcuffs were removed, Gonzalez
voluntarily agreed to speak with the agents and walked to Piekenbrock’s
vehicle. As the district court noted, “[n]o officer ordered Gonzalez to get into
the vehicle, and no officer drew a gun.” During the interview, Gonzalez sat “in
the front passenger seat of [the] law-enforcement vehicle on [his] property and
within 40 feet of his residence, with the vehicle’s windows partly down, and
without restraint.” And the agents maintained a “respectful and calm” tone.
Put simply, the environment was not inherently coercive; as the district court
noted, “Gonzalez willingly agreed to speak with officers, agreed to get in the
vehicle, never asked to leave, and never asked for a lawyer.”
A reasonable person could certainly be “startl[ed] and intimidat[ed]” by
eight to ten agents searching his or her home, but that’s not enough to
constitute station-house-level coercive pressure. Wright, 777 F.3d at 777
(recognizing “that the presence of 17 or 19 law enforcement officers in and
around [defendant]’s home was startling and intimidating” but still concluding
12
Case: 19-50725 Document: 00515444245 Page: 13 Date Filed: 06/08/2020
No. 19-50725
that, based on “the totality of the circumstances,” the interrogation was non-
custodial). So, considering the totality of the circumstances, the environment
where the in-car interview occurred did not “present[] the same inherently
coercive pressures as the type of station house questioning at issue in
Miranda.” Howes, 565 U.S. at 509. Consistent with the district court’s findings,
there was “no evidence of coercive behavior or coercive questioning by the
officers.” As such, Gonzalez was not in Miranda custody during the pre-
warning interview.
In sum, Gonzalez was not in Miranda custody when he was interviewed
because a reasonable person in his position would not have viewed the
situation as a restraint on his freedom of movement equal to a formal arrest,
and the interview environment was not tantamount to a station house
interrogation. Thus, we affirm the district court on this issue.
IV
But assuming arguendo that the pre-warning interview occurred while
Gonzalez was in Miranda custody, we address Gonzalez’s next argument: that
his post-warning statements should be suppressed because the agents acted
deliberately to circumvent the protections of Miranda by conducting both a
pre-warning and post-warning interrogation. We find no error in the district
court’s denial of Gonzalez’s motion to suppress and finding that the agents did
not engage in a prohibited, two-step interrogation. So any error in admitting
Gonzalez’s pre-warning statements would be harmless.
Where a “two-step interrogation technique was used in a calculated way
to undermine the Miranda warning,” “postwarning statements that are related
to the substance of prewarning statements must be excluded unless curative
measures are taken before the postwarning statement is made.” Missouri v.
13
Case: 19-50725 Document: 00515444245 Page: 14 Date Filed: 06/08/2020
No. 19-50725
Seibert, 542 U.S. 600, 622 (2004) (Kennedy, J., concurring in the judgment);1
see also, e.g., United States v. Nunez-Sanchez, 478 F.3d 663, 668 (5th Cir. 2007).
This forbidden, two-step strategy “involves an interrogator relying on the
defendant’s prewarning statement to obtain the postwarning statement used
against [him] at trial, by confronting the defendant with [his] inadmissible
prewarning statements and pushing [him] to acknowledge them.” United
States v. Delgado-Arroyo, 358 F. App’x 530, 532 (5th Cir. 2009) (per curiam)
(cleaned up).2
If we determine that agents employed a calculated strategy to evade
Miranda with the proscribed two-step interrogation, we must determine if they
took curative measures “to ensure that a reasonable person in the suspect’s
situation would understand the import and effect of the Miranda warning and
of the Miranda waiver.” Seibert, 542 U.S. at 622 (Kennedy, J., concurring in
the judgment).3 But, if we conclude that agents used no such tactic, the
admissibility of the warned statements is “governed by the principles of
Elstad.” Id.; see also infra Part IV(B) (discussing Elstad).
Seibert’s holding is set forth “in Justice Kennedy’s opinion concurring in the
1
judgment.” United States v. Courtney, 463 F.3d 333, 338 (5th Cir. 2006).
2 For example, in Seibert, “[t]he postwarning interview resembled a cross-
examination. The officer confronted the defendant with her inadmissible prewarning
statements and pushed her to acknowledge them. See App. 70 (‘[Patrice], didn’t you tell me
that he was supposed to die in his sleep?’).” Seibert, 542 U.S. at 621 (Kennedy, J., concurring
in the judgment).
3 “For example, a substantial break in time and circumstances between the
prewarning statement and the Miranda warning 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. . . . Alternatively, an additional warning that explains the likely
inadmissibility of the prewarning custodial statement may be sufficient.” Seibert, 542 U.S. at
622 (Kennedy, J., concurring in the judgment) (internal citation omitted).
14
Case: 19-50725 Document: 00515444245 Page: 15 Date Filed: 06/08/2020
No. 19-50725
A
So, to start, we must determine whether agents used the two-step
interrogation strategy Seibert prohibits. Gonzalez argues that the agents
deliberately waited to give Miranda warnings until he had made an
“incriminating” statement. True, “Piekenbrock’s operational plan
contemplated that Gonzalez would be interviewed by officers but not
Mirandized,” and that Gonzalez might “be arrested if firearms were found in
his home.” But, as the district court found, the “officers did not determine that
Gonzalez would be arrested until after Gonzalez admitted to buying a revolver
from the Aryan Brotherhood and after the questioning officers presented the
facts and circumstances to a federal prosecutor for review.” Gonzalez made
incriminating statements about his impersonation scheme, but those were
insufficient “to cause him to be arrested that day.” And Piekenbrock testified
that Gonzalez’s statement about purchasing the revolver “changed things,”
ultimately leading the agent to Mirandize Gonzalez. So, rather than engaging
in a two-step interrogation premised on deceit, the record suggests that agents
merely responded to evidence—including Gonzalez’s voluntary statements—
acquired during execution of the search warrant and acted in accordance with
legal counsel. Gonzalez offered no evidence to the contrary.
Plus, the circumstances, nature, and tone of the questioning do not
suggest “that coercion or other improper tactics were used.” Nunez-Sanchez,
478 F.3d at 668. Rather, after providing Gonzalez with Miranda warnings, the
agents continued to speak with him in a “very professional” tone. And the
record indicates that, as in Lim, “the agents did not act with aggressiveness or
hostility,” Lim, 897 F.3d at 692 (internal quotation marks omitted), which
undercuts any argument that the agents confronted Gonzalez with his pre-
warning statements and pushed him to acknowledge them.
15
Case: 19-50725 Document: 00515444245 Page: 16 Date Filed: 06/08/2020
No. 19-50725
Gonzalez contends that the post-Miranda questioning was “repetitive”
and that agents obtained “no new information after the warning,” thus
showing a deliberate scheme to undermine Miranda. But even if agents
questioned Gonzalez about the same subjects pre- and post-Miranda, that does
not prove that they “confront[ed]” him with his earlier statements and
pressured him to acknowledge them. See Delgado-Arroyo, 358 F. App’x at 532.
Indeed, the record shows that agents did not “confront[]” Gonzalez “with the
statements that had been made earlier”; Piekenbrock testified that there was
no “discussion of the statements that were made” before Gonzalez was provided
Miranda warnings. Thus, the district court did not err by determining that the
agents did not employ the proscribed two-step strategy when interviewing
Gonzalez.4
B
Because agents did not use the proscribed two-step strategy, the
admissibility of the warned statements is “governed by the principles of
Elstad.” Seibert, 542 U.S. at 622 (Kennedy, J., concurring in the judgment). As
the Supreme Court explained in Elstad, the “subsequent administration of
Miranda warnings to a suspect who has given a voluntary but unwarned
statement ordinarily should suffice to remove the conditions that precluded
admission of the earlier statement.” Oregon v. Elstad, 470 U.S. 298, 314 (1985).
“In such circumstances,” the Court explained, “the finder of fact may
reasonably conclude that the suspect made a rational and intelligent choice
whether to waive or invoke his rights.” Id. “Under Elstad, the relevant inquiry
4 Consequently, no curative measures were necessary. So although Gonzalez is correct
that the agents did not employ curative measures after providing Gonzalez Miranda
warnings, that is irrelevant here.
16
Case: 19-50725 Document: 00515444245 Page: 17 Date Filed: 06/08/2020
No. 19-50725
is whether, in fact, the second statement was also voluntarily made.” United
States v. Courtney, 463 F.3d 333, 338 (5th Cir. 2006) (cleaned up).
“[I]n evaluating the voluntariness of [a suspect’s] statements,” “the
finder of fact must examine the surrounding circumstances and the entire
course of police conduct with respect to the suspect.” Elstad, 470 U.S. at 318.
The Supreme Court has rejected a “presum[ption of] coercive effect where the
suspect’s initial inculpatory statement, though technically in violation of
Miranda, was voluntary.” Id. Rather, “[a] statement is involuntary if the
tactics employed by law enforcement officials constitute a Fifth Amendment
due process violation and are so offensive to a civilized system of justice that
they must be condemned.” Lim, 897 F.3d at 692 (cleaned up). And the
Government has the burden to prove that Gonzalez voluntarily waived his
Miranda rights. See Berghuis v. Thompkins, 560 U.S. 370, 382 (2010).
Here, the district court correctly determined “that Gonzalez’s post-
Miranda statements were voluntarily made” and noted that Gonzalez did not
present any evidence otherwise. Gonzalez did not even argue in his opening
appellate brief that his post-warning statements were constitutionally
involuntary, so the argument is forfeited. Procter & Gamble Co. v. Amway
Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004) (explaining that “[f]ailure
adequately to brief an issue on appeal constitutes [forfeiture] of that argument”
and finding that argument was forfeited where a party “fail[ed] to raise it in
its opening brief”). And even if Gonzalez hadn’t forfeited the argument, it
17
Case: 19-50725 Document: 00515444245 Page: 18 Date Filed: 06/08/2020
No. 19-50725
would fail.5 We affirm the district court’s denial of Gonzalez’s motion to
suppress his post-warning statements.6
* * *
For these reasons, we AFFIRM. And we DENY Gonzalez’s motion for bail
pending appeal as moot.
5 As the district court emphasized, “Piekenbrock testified that Gonzalez stated he
understood his rights and agreed to waive them and continue the interview.” Plus,
considering the totality of the circumstances of the interview and the agents’ conduct, we
conclude that Gonzalez’s post-warning statements were voluntary rather than coerced.
6 As discussed, the district court properly admitted Gonzalez’s pre-warning
statements. But even if the district court had erred, because Gonzalez’s pre- and post-
Miranda statements were substantively the same, any error in admitting Gonzalez’s pre-
Miranda statements was harmless. Cf. United States v. Boche-Perez, 755 F.3d 327, 342 (5th
Cir. 2014).
18