As Amended May 29, 2014.
For Appellee: Christopher D. Frey, Brent S. Wible, and Michael A. Levy, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY.
For Defendant-Appellant Taylor: Kelley J. Sharkey, Brooklyn, NY.
For Defendant-Appellant Rosario: Jillian S. Harrington, Monroe Township, NJ.
For Defendant-Appellant Vasquez: Colleen P. Cassidy, Assistant Federal Public Defender, Federal Defenders of New York, Inc., New York, NY.
PRESENT: ROBERT A. KATZMANN, Chief Judge, DENNIS JACOBS, JOSÉ A. CABRANES, ROSEMARY S. POOLER, REENA RAGGI, RICHARD C. WESLEY, PETER W. HALL, DEBRA ANN LIVINGSTON, GERARD E. LYNCH, DENNY CHIN, RAYMOND J. LOHIER, JR., SUSAN L. CARNEY, CHRISTOPHER F. DRONEY, Circuit Judges.
Following disposition of this appeal on March 4, 2014, an active judge of the Court requested a poll on whether to rehear the case en banc. A poll having been conducted and there being no majority favoring en banc review, rehearing en banc is hereby DENIED.
Rosemary S. Pooler, J., REENA RAGGI,
POOLER, Circuit Judge, concurring in the denial of rehearing en banc.
I write as one of the majority of active judges who voted to deny rehearing en banc in this case. I write only for myself. I carefully studied the memoranda circulated by my colleagues who voted in favor
of rehearing en banc, which presented arguments similar to those set forth in Judge Raggi's dissent from the denial of en banc review. I did not vote against rehearing en banc because of some imagined distaste for en banc proceedings or because I thought that the issues presented here are so important we should expedite the Supreme Court's consideration of this case. Instead, I voted to deny rehearing en banc because I believe that the panel's decision in this case is substantively correct.
José A. Cabranes, Circuit Judge, dissenting from the order denying rehearing en banc:
I respectfully join, without qualification, in Judge Raggi's forceful opinion. The dissenters having failed to persuade a majority of the active judges to rehear this appeal, our concerns necessarily now rest in the hands of our highest court. I write separately, and in my name alone, for the sole purpose of recalling some salient aspects of en banc practice in the Second Circuit.
As a result of our decision not to rehear this case before the full court of active judges, by a vote of seven to six, one can know for certain only one thing: Judge Raggi's opinion dissenting from the denial of en banc review is, by definition, an expression of the views of the six subscribing judges that the panel's resolution of this case presents legal issues of exceptional importance, and defies not only our own case law, but controlling Supreme Court precedent. In contrast, the order itself denying rehearing without elaboration may, or may not, reflect the substantive views of particular judges in the seven-judge majority voting against rehearing. This is so because, even when the criteria enumerated in Rule 35 are satisfied--when " (1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or (2) the proceeding involves a question of exceptional importance"  --the active circuit judges nonetheless exercise considerable discretion to vote against en banc rehearing.
In light of how judges of the Second Circuit have historically exercised such
discretion, the decision not to convene the en banc court does not necessarily mean that a case either lacks significance or was correctly decided. Indeed, the contrary may be true. An oft-cited justification for voting against rehearing, perhaps counterintuitively, is that the case is " too important to en banc."  This view was apparently first stated in published case law in 1973 by Judge Irving R. Kaufman, who voted against en banc consideration of a panel decision in order to " wisely speed this case on its way to the Supreme Court as an exercise of sound, prudent and resourceful judicial administration."  This view has perdured, leaving open the possibility that some judges in the majority in any particular case may have voted against en banc rehearing precisely because of the importance of the legal questions at issue.
Other reasons for voting against rehearing that may not be related to the case's merits can be grouped under what Judge Jon O. Newman called the " virtues of restraint."  Such " virtues" include judicial economy, collegiality, and what Chief Judge Robert A. Katzmann more recently described as " our Circuit's longstanding tradition of general deference to panel adjudication--a tradition which holds whether
or not the judges of the Court agree with the panel's disposition of the matter before it." 
Accordingly, a reader should not attempt to ascertain the substantive views of particular judges in the majority (or even, in some circumstances, the unsuccessful minority) from a decision not to rehear a case en banc. Nor should a reader accord any extra weight to a panel opinion in light of such a decision, inasmuch as the order denying rehearing may only reflect, for some judges, a general aversion to en banc rehearings or faith in the Supreme Court to remedy any major legal errors.
In sum, all one can know for certain about a vote like this one is that seven active circuit judges did not wish to rehear this case, while the six other active circuit judges strongly believed that the panel opinion presented multiple legal errors of exceptional importance warranting correction.
Reena Raggi, Circuit Judge, joined by José A. Cabranes, Richard C. Wesley, Peter W. Hall, Debra Ann Livingston, and Christopher F. Droney, Circuit Judges, dissenting from the denial of rehearing en banc:
In vacating convictions in this Hobbs Act robbery case, a panel of the court reaches the paradoxical conclusion that a defendant who acted knowingly and voluntarily in waiving his Miranda rights could not have acted knowingly and voluntarily in responding to ensuing police questions. Why? Not because of any abusive police interrogation tactics--the panel concedes there were none--but, rather, because defendant was so sleepy that he occasionally dozed off during the interview. The panel then concludes that the " coercive" effect of the first interrogation carried over to a second the following day, even though defendant himself solicited the second interview, re-waived his Miranda rights, and was awake throughout.
These conclusions defy not only common sense but also controlling precedent, notably,
Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000),
Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), and
Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). This prompts six of the thirteen active judges in this circuit to seek review of this case en banc. That review should also extend to the panel's identification of error under
Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), in the admission of purportedly inadequately redacted versions of the confessions at a joint trial. In fact, the redactions replace co-defendants' names with neutral substitutes solicited by defendants and previously approved by this and other federal courts. Further, co-defendants can be linked to the redacted statements only by looking to other evidence, circumstances that cannot demonstrate Bruton error. See Richardson v. Marsh, 481 U.S. 200, 206-09, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987).
Thus, to the extent the court today declines to grant en banc review, I respectfully dissent from that decision.
A. A Preliminary Observation About " Facts"
Throughout this opinion, I assume readers' familiarity with the panel opinions, see
United States v. Taylor (" Taylor I" ), 736 F.3d 661 (2d Cir. 2013), superseded by
United States v. Taylor (" Taylor II" ), 745 F.3d 15 (2d Cir. 2014), and I generally detail relevant facts only as necessary to explain why en banc review is warranted. At the outset, however, it is important to note that the panel's troubling legal analysis rests on a suspect factual characterization of defendant Curtis Taylor's condition at the time of the challenged confessions.
Notably, the panel asserts, based on its own reading of the record, that Taylor was " in and out of consciousness," " in a trance or a stupor," " largely stupefied," and " unable to focus" even when awake during his first interrogation.
Taylor II, 745 F.3d at 20, 25. Such characterizations are findings of fact and, as such, outside the purview of an appellate court. They are, moreover, at odds with factual findings of the district court that were not clearly erroneous. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).
After an evidentiary hearing, the district court expressly found that, " during the questioning," Taylor was " sufficiently lucid," " awake," and " competent" to exercise his constitutional rights. Suppression Hr'g Tr. (" Tr." ) 387:23-388:14, Supplemental App'x (" S.A." ) 387-88. In making these findings, the district court credited interviewing officers who testified that, during the first interrogation, Taylor was " coherent," " fluid," " knew what was going on," and never asked for questioning to cease. Id. 18:25-20:3, S.A. 18-20. While acknowledging that Taylor may have " nodd[ed] off" two or three times during the initial two-to-three hour interview, an FBI agent explained that, upon verbal prompting, Taylor was able to focus on the questions posed: 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. 45:7-21, S.A. 45. As to the next day's interview--which Taylor himself requested--the agent testified that Taylor remained awake throughout, " appeared fine," and participated in a " lucid give and take" ; indeed, " [h]e was probing with information that he wanted to clarify, and that led to my [i.e., the agent's] questions to him. I didn't note any confusion . . . aside from what he wanted to clarify." Id. 216:17-21, S.A. 216.
To support its own contrary factual assessment, the panel highlights other hearing evidence suggesting that at different times on the dates in question, Taylor fell asleep easily or experienced difficulties with mental focus and verbal expression. But the task of weighing any competing evidence was committed to the district court, not the panel. Cf. United States v. Mendenhall, 446 U.S. 544, 557, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (" [B]ecause the trial court's finding [that defendant
had acted voluntarily in accompanying police to station] was sustained by the record, the Court of Appeals was mistaken in substituting for that finding its view of the evidence." ); United States v. Isiofia, 370 F.3d 226, 232 (2d Cir. 2004) (upholding district court's finding that consent to search was not voluntary " even though . . . had we been sitting as the trier of fact, we would have weighed the evidence differently" (internal quotation marks and alterations omitted)). Indeed, absent identification of clear factual error--which the panel does not make here--it cannot substitute its own factual assessment of Taylor's condition at the time of his confessions for that of the district court. See United States v. Khalil, 214 F.3d 111, 121-22 (2d Cir. 2000) (deferring to district court's voluntariness finding even though circumstances surrounding confession might have supported contrary ...