United States v. Taylor

• Decision Date: 04 March 2014
• Docket Number: Docket Nos. 11–2201 (L), 11–2426(CON), 11–2639(CON).
• Citation: 745 F.3d 15
• Court: U.S. Court of Appeals — Second Circuit
• Parties: UNITED STATES of America, Appellee, v. Curtis TAYLOR, Antonio Rosario, aka Chickee, Samuel Vasquez, aka Rock, Defendants–Appellants.

745 F.3d 15

UNITED STATES of America, Appellee,

v.Curtis TAYLOR, Antonio Rosario, aka Chickee, Samuel Vasquez, aka Rock, Defendants–Appellants.

Docket Nos. 11–2201 (L), 11–2426(CON), 11–2639(CON).

United States Court of Appeals, Second Circuit.

Argued: Feb. 4, 2013.

Decided: Dec. 4, 2013.

Petition for Rehearing Filed: Jan. 17, 2014.

Decided: March 4, 2014.

Kelley J. Sharkey, Brooklyn, NY, for Defendant–Appellant Curtis Taylor.

Jillian S. Harrington, Monroe Township, NJ, for Defendant–Appellant Antonio Rosario.

Colleen P. Cassidy, Federal Defenders of New York, Inc., New York, NY, for Defendant–Appellant Samuel Vasquez.

Christopher D. Frey (Michael Bosworth, on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Before: KEARSE, JACOBS and CARNEY, Circuit Judges.

DENNIS JACOBS, Circuit Judge:

The United States petitions for rehearing following our decision in United States v. Taylor, 736 F.3d 661 (2d Cir.2013). The petition is granted, and the opinion filed December 4, 2013 is withdrawn. For the reasons that follow in our revised opinion, we vacate the convictions of the three defendants and remand for a new trial.

Curtis Taylor, Antonio Rosario, and Samuel Vasquez appeal judgments of conviction entered in the United States (Marrero, J.) for conspiring to commit Hobbs Act robbery and brandishing a firearm during a crime of violence, among other offenses related to the robbery of a pharmacy in midtown Manhattan. Taylor, who claims to have attempted suicide by pills as he was arrested, argues that he was incapacitated when he incriminated himself post-arrest, and that the court's decision to admit those statements into evidence violated his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the Due Process Clause of the Constitution. Rosario and Vasquez, who raise separate issues, join Taylor's challenge to the extent that Taylor's confession was used against them, and appeal the denial of their motion to sever on the ground that Taylor's statements caused prejudicial spillover and violated the confrontation right protected under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

This is a close case. But even assuming that Taylor's initial waiver of his Mirandarights was knowing and voluntary, Taylor was largely stupefied when he made his post-arrest statements, as confirmed by the testimony of the law enforcement agents and the pretrial services officer who interviewed him, and by the evaluations of staff psychologists at the Metropolitan Correctional Center (“MCC”). The agents and officer testified that Taylor fell asleep repeatedly during questioning and was only intermittently alert. Although their testimony also suggests—and the district court found—that Taylor's incriminating statements were made in relatively lucid intervals, Taylor was impaired throughout, and his interrogators took undue advantage of that impairment by continuing to question him. We therefore conclude that Taylor's post-arrest statements were not voluntary. We further conclude that admitting those statements into evidence was not harmless. His conviction is therefore vacated and remanded for a new trial. And because Taylor's statements were redacted in a manner that left obvious indicia that the co-defendants' names had been deleted, their convictions are also vacated and remanded for a new trial.

I

On Christmas Eve 2008, Vasquez drove Taylor and Rosario from the Bronx to midtown Manhattan to rob a pharmacy. With them was Luana Miller, a drug addict from Mississippi with an extensive criminal history.

En route, Miller called the pharmacy and asked them to stay open for a few minutes past 5:00 PM, so that she could pick up a prescription. At the pharmacy, Miller went in first, posing as a customer. As she spoke with the pharmacist, Rosario burst in the door brandishing a gun, screaming that it was a robbery, and demanding OxyContin: a powerful opioid for pain that is often resold illegally. The two took more than $12,000 of controlled substances, as well as cash and subway cards, while Taylor stood lookout at the front door and Vasquez waited in the getaway car. The crew then drove back to the Bronx. Cell phone records for Taylor, Rosario, and Vasquez show that they were in the Bronx that afternoon, traveled to midtown Manhattan just before 5:00 PM, stayed near the pharmacy until just after the robbery, and then returned to the Bronx.

While executing a warrant at the home of Miller's boyfriend in January 2009, police arrested her on outstanding warrants. Fearing extradition to Mississippi, she offered to cooperate with the government's investigation of the pharmacy robbery, and led police to Taylor, Rosario, and Vasquez.

Around 6:00 AM on April 9, 2009, over 25 NYPD and FBI agents came to Taylor's apartment to effect his arrest. Taylor claims that, amid the ensuing chaos, he attempted suicide by taking a bottle-full of Xanax pills. Taylor's daughter testified that her mother (who died before trial) reported the overdose to an officer who dismissed her and told her to “shut up.” Still, the record is less than clear as to whether Taylor actually took the pills, and as to whether officers were told of his overdose. Around 9:30 that morning, Taylor was interviewed at FBI headquarters in downtown Manhattan by New York City Police Department Detective Ralph Burch, a member of an FBI/New York health care fraud task force. Taylor signed a form waiving his Miranda rights, and went on to give a lengthy statement confessing his involvement in the robbery.

Taylor argues that he was falling asleep and was at times unconscious during the interview. Detective Burch said that it seemed like Taylor's body was “somewhat shutting down” during the two- to three-hour interview. Supplemental App. 51. On the other hand, Burch testified that, though Taylor nodded off at times, he was “coherent” and “fluid” when he was awake and speaking:

Mr. Taylor at times was nodding off during the interview. When we asked Mr. Taylor to listen up, that we were asking him questions, he would respond that he knew what he was being asked and he would repeat the questions back to us to show that he was understanding what was being asked of him and knew what was going on.

Id. at 45. Detective Burch clarified that Taylor did not need to be awakened during the interview; he just had to be “refocused.” Id. at 46. “He seemed like he was dozing off, and we had to stress did he understand what was going on. ... [I]t was my impression that he knew what was going on then.” Id.

Taylor was later taken to a hospital for medical clearance before his transfer into the custody of the Marshals Service. FBI Special Agent Ian Tomas, who was also involved in the interrogation, explained that Taylor was taken to the hospital because “[t]here was some talk about him on some medication and possibly an injury he had sustained previous at a construction site.” Id. at 137. Agent Tomas clarified that the hospital visit was necessary because there was some question as to whether the Marshals Service would take custody of someone who “might be off”: “We felt that his do[z]ing off might be a reason the marshals wouldn't accept the custody of Mr. Taylor.” Id. at 160. Taylor spent the rest of the day at the hospital sleeping, but he did not receive medical attention. He was transferred to the MCC later that evening.

The next morning, April 10, Taylor met with MCC staff psychologists. The MCC's chief psychologist, Dr. Elissa Miller, explained that they wanted to evaluate Taylor before his arraignment because they knew of Taylor's earlier schizophrenia diagnosis and several prior attempts at suicide. According to Dr. Miller (who reported on findings by staff psychologists), Taylor “presented with a thought disorder,” drooled, was vague, stared blankly, and “[h]is thoughts lacked spontaneity.” Id. at 110. Miller testified that “if you asked him questions, he really couldn't elaborate on them because his thought process was impaired.” Id. at 111.

Taylor also told one of the staff psychologists that “the day he was arrested by the FBI, he took multiple Xanax pills in an attempt to kill himself because he had promised himself that he would never go back to jail.” Id. at 113. Taylor told Miller that, “[a]s a result of taking all those Xanax pills, he ... wasn't waking up and he went to the hospital.” Id.

He was then taken to the courthouse for arraignment. While awaiting arrival of a pretrial services officer, Taylor told Agent Tomas that “he wanted to clear up some issues about the charges that he was presented with.” Id. at 139. Agent Tomas took Taylor to an interview room and again advised him of his Miranda rights; Taylor confessed to the robbery again.

Around 12:30 PM that day, Taylor met with Dennis Khilkevich, a pretrial services officer. Khilkevich testified that when he arrived for the interview, Taylor “appeared sleepy and had to be awakened to be interviewed.” Id. at 319. “He was sitting in a chair and he appeared as if he was asleep or he was taking a nap.” Id. Khilkevich stopped the interview because Taylor “repeatedly fell asleep in the chair.” Id. at 320. When the interview resumed, Taylor “was initially responsive maybe for several minutes,” but “[t]hen he continued to fall asleep.” Id. “He had to be woken up and he would be responsive for a few minutes and then he would go to sleep again.” Id. Khilkevich eventually finished the interview, explaining that Taylor was awake and coherent “[a]t times.” Id. at 323.

As to the other defendants:

• Rosario was also arrested on April 9, 2009, and waived his Miranda rights. He claimed at first that he was in the hospital the day of the robbery, but then said he had actually been at his girlfriend's house in Queens. When told that a surveillance video showed a suspect like him,...