United States v. Familetti

• Citation: 878 F.3d 53
• Decision Date: 20 December 2017
• Docket Number: No. 16-2334-cr,August Term 2017,16-2334-cr
• Parties: UNITED STATES of America, Appellee, v. Charles FAMILETTI, Jr., AKA Charles Familetti, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

878 F.3d 53

UNITED STATES of America, Appellee,

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

No. 16-2334-cr

August Term 2017

United States Court of Appeals, Second Circuit.

Argued: October 23, 2017

Decided: December 20, 2017

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.

Dennis Jacobs, Circuit Judge:

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, 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, 384 U.S. at 444, 86 S.Ct. 1602. A person must both be "in custody" and subject to "interrogation" for Miranda safeguards to apply. See Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (" ‘Interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.").

I

An interrogation occurs when a suspect "is subjected to either express questioning or its functional equivalent" and his statements are "the product of words or actions on the part of the police" that "were reasonably likely to elicit an incriminating response." Id. at 300–01, 303, 100 S.Ct. 1682. Familetti contends that he was under interrogation in his bedroom because the agent posed a direct question calculated to draw an incriminating response. The agents informed him that they were there to uncover activities related to child sex and pornography. Thompson testified that he asked Familetti if he could help the agents with their investigation into who was "raping children," and that Familetti agreed to do so. The Government responds that no interrogation took place because asking for cooperation is not a manner of questioning "reasonably likely to elicit an incriminating response."

Not all questioning of a suspect by the police amounts to interrogation. Some "question[s] [are] necessary to secure their own safety or the safety of the public." New York v. Quarles, 467 U.S. 649, 658–59, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). Likewise, "pedigree" questions that pertain to administration or a defendant's basic identification information do not trigger Miranda. See Rosa v. McCray, 396 F.3d 210, 221 (2d Cir. 2005) (noting the "general rule that pedigree questioning does not fall under the strictures of Miranda"); accord United States v. Kane, 726 F.2d 344, 349 (7th Cir. 1984) ("[A] Miranda interrogation violation does not occur when arresting officers question a defendant only to a limited extent for data required as part of the processing normally attendant to arrest and custody."). And "[v]olunteered statements of any kind are not barred by the Fifth Amendment." Miranda, 384 U.S. at 478, 86 S.Ct. 1602.

Along these lines, we have questioned whether a request from the police for cooperation or assistance can be interrogation. In United States v. Guido, we rejected "the proposition that a discussion of cooperation is inherently a form of questioning for the purposes of Miranda." 704 F.2d 675, 677 (2d Cir. 1983) (emphasis added). In that case, the defendant was not subject to the "functional equivalent" of express questioning when the agents discussed the possibility of cooperation while they took him to the police station in a squad car. Id. Engaging defendants with pre-warning or pre-counsel cooperation inquiries is by no means an uncommon technique in this Circuit. See App'x at 76 (in describing his solicitation to Familetti to assist with finding the child pornographers, Agent Thompson responded "[t]hat's my typical standard opening line"); United States v. Annucci, No. 06 Cr. 982(BSJ), 2007 WL 1310156, at *5 (S.D.N.Y. May 3, 2007) ; see also United States v. Vado, 87 F.Supp.3d 472, 476 (S.D.N.Y. 2015).

"[A]lmost any information obtained from a suspect, however innocuous it appears on its face, may prove to be incriminating ..." United States ex rel Hines, 521 F.2d at 1112. The Supreme Court has cautioned that the "interrogation environment" is not to be construed so narrowly as to defeat Miranda's purpose: various "techniques of persuasion, no less than express questioning" can amount to interrogation. Innis, 446 U.S. at 299, 100 S.Ct. 1682 (internal citation omitted). Interrogation therefore includes engagement short of a formal interview. Just as some "safety" related inquiries will invade a defendant's Fifth Amendment rights, see Orozco v. Texas, 394 U.S. 324, 325, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969) (ruling inappropriate pre- Miranda police questioning about whether the suspect owned a pistol and the location of the weapon), a defendant's undertaking that he will help or cooperate in an investigation (or not) can sometimes implicate the defendant in the crime or in that criminal universe. The cooperation inquiry can also result in more significant incriminating consequences as the first step of "[t]he technique of interrogating in successive, unwarned and warned phases." Missouri v. Seibert, 542 U.S. at 609, 124 S.Ct. 2601. "[I]nterrogation practices" such as the one at issue in this case may "disable an individual from making a free and rational choice about speaking," negating the constitutional force of subsequent Miranda warnings. Id. at 611, 124 S.Ct. 2601 (quoting Miranda, 384 U.S. at...