878 F.3d 53 (2nd Cir. 2017), 16-2334-cr, United States v. Familetti

Docket Nº:16-2334-cr
Citation:878 F.3d 53
Opinion Judge:Dennis Jacobs, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Charles FAMILETTI, Jr., AKA Charles Familetti, Defendant-Appellant.
Attorney:JESSICA K. FENDER, Assistant United States Attorney for the Southern District (with Patrick Egan, Karl Metzner, on the brief), New York, New York, for the United States of America. JERALD BRAININ, ESQ., Los Angeles, California, for Defendant-Appellant.
Judge Panel:Before: Jacobs, Sack, and Parker, Circuit Judges.
Case Date:December 20, 2017
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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878 F.3d 53 (2nd Cir. 2017)

UNITED STATES of America, Appellee,

v.

Charles FAMILETTI, Jr., AKA Charles Familetti, Defendant-Appellant.

No. 16-2334-cr

United States Court of Appeals, Second Circuit

December 20, 2017

Argued: October 23, 2017

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[Copyrighted Material Omitted]

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Charles Familetti appeals from the judgment of the United States District Court for the Southern District of New York, sentencing him to 15 years in prison for attempted sex trafficking of a minor and the possession, distribution, and transportation of child pornography. Familetti challenges his conviction on grounds that he was in custody and that the police elicited his offer to cooperate in the investigation as the opening gambit in a two-step evasion of the Miranda rule forbidden by Missouri v. Seibert, 542 U.S. 600 (2004). We conclude that the circumstances and phrasing of the pre-warning request for cooperation would have constituted an interrogation under Rhode Island v. Innis, 446 U.S. 291 (1980), if Familetti had been in custody, but that under circuit law, he was not. Affirmed.

JESSICA K. FENDER, Assistant United States Attorney for the Southern District (with Patrick Egan, Karl Metzner, on the brief), New York, New York, for the United States of America.

JERALD BRAININ, ESQ., Los Angeles, California, for Defendant-Appellant.

Before: Jacobs, Sack, and Parker, Circuit Judges.

OPINION

Dennis Jacobs, Circuit Judge.

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Charles Familetti, a former financial executive at HSBC Holdings plc, was a target of an undercover investigation into child pornography and sex crimes on the internet. An FBI sting operation culminated in a lawful search of the appellant's apartment during which (Familetti contends) statements were elicited in violation of the Fifth Amendment. Familetti challenges his conviction on grounds that he was in custody and that the police elicited his offer to cooperate in the investigation as the opening gambit in a two-step evasion of the Miranda rule forbidden by Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). We conclude that the circumstances and phrasing of the pre-warning request for cooperation would have constituted an interrogation under Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), if Familetti had been in custody, but that under Circuit law, he was not. Because Familetti was not in custody when the FBI conducted a pre-warning interrogation, we affirm the conviction.

BACKGROUND

I

Familetti participated in chat sessions, using a pseudonym, on an online service called Gigatribe. In June 2013, Special Agent Thomas Thompson engaged Familetti in a chat during which Familetti sent child pornography videos to Thompson and expressed interest in a sexual experience with a minor. Thompson offered to arrange an encounter with an eleven-year-old. Special Agent Aaron Spivack, posing as Thompson's online persona, met with Familetti in person, and they contracted for Spivack to deliver a child to Familetti's corporate apartment for $500. At the conclusion of the meeting, Familetti gave Spivak $100 as a down payment. At the agreed time, Spivack arrived at the apartment with a task force led by Thompson, which executed a search warrant.

Familetti suffered an extreme panic attack as the agents entered, and two agents were needed to restrain him, push him against the wall, and temporarily handcuff him. The agents placed him in a chair in his living room, brought him a glass of water, and waited for him to calm down. Agent Thompson then explained to Familetti that he was not under arrest and was " free to leave," but that the agents had a warrant to search the apartment and might take some things. App'x at 74. When Familetti's panic subsided, the handcuffs were removed; he was led into his bedroom, and advised again that he was not under arrest. Thompson then told Familetti " that the reason why we're here is related to child pornography" and that the " number one goal is to find those people out there who are raping children and making these type of videos." App'x at 76. Although the record does not reflect the precise exchange that followed, it is undisputed that Thompson asked for Familetti's help with the investigation, and that Familetti stated that he was willing. See App'x at 76 (A: " And then I told [Familetti] ... maybe he could help us provide some information in finding these people." ); Appellant's Br. at 7 (stating " Familetti immediately agreed to cooperate" ); Appellee's Br. at 5 (stating " Familetti said that he was willing to talk to the agents" ).

Thereupon, Thompson advised Familetti of his Miranda rights orally and in writing,

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and elicited Familetti's waiver. In the ensuing interview, Familetti confessed to using an online account to trade child pornography, storing child pornography on an SD card hidden in his apartment, and making a $100 down payment for sex with a minor.

II

The defense unsuccessfully moved to suppress the oral and written statements Familetti made during the search of his apartment. Familetti argued that his pre-warning statement was inadmissible as the product of a custodial interrogation, and that any subsequent waiver (and confession) was elicited by a deliberate two-step interrogation process, and was therefore neither knowing nor voluntary. See Missouri v. Seibert, 542 U.S. 600, 615, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). We review the district court's factual findings on the existence of a custodial interrogation for clear error, and its legal conclusions de novo .

United States v. Romaszko, 253 F.3d 757, 760 (2d Cir. 2001).

DISCUSSION

Absent a warning, the prosecution may not use a statement elicited by the police during a custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 448-50, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); see also United States v. Newton, 369 F.3d 659, 668 (2d Cir. 2004); United States ex rel. Hines v. LaVallee, 521 F.2d 1109, 1112 (2d Cir. 1975). " By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody...." Miranda...

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