NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
                             ___________

                                      No. 11-1534
                                      ___________

                          UNITED STATES OF AMERICA

                                           v.

                                   ANTWAN SHAIRD,
                                               Appellant
                                     ___________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                             (D.C. No. 2-09-cr-00356-001)
                      District Judge: Honorable Juan R. Sanchez
                                     ___________

                           Argued February 6, 2012
            Before: SLOVITER, VANASKIE, and GARTH, Circuit Judges

                            (Opinion Filed: March 6, 2012)
                                    ____________

Robert Epstein (Argued)
David M. Kozlow
Federal Community Defender Office for the
 Eastern District of Pennsylvania
Philadelphia, PA 19106

      Attorneys for Appellant

Elizabeth F. Abrams
David L. Axelrod (Argued)
Office of United States Attorney
Philadelphia, PA l9l06

      Attorneys for Appellee
                                        _________

                                        OPINION
                                        _________


SLOVITER, Circuit Judge.

       A jury convicted Appellant Antwan Shaird of possession of marijuana with intent

to distribute, in violation of 21 U.S.C. § 841(a)(1) (“Count I”), possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (“Count II”),

and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)

(“Count III”). On appeal, Shaird challenges two rulings by the District Court. First,

Shaird argues that the District Court erred in admitting his written confession to

possession of marijuana. Second, he contends that the District Court erred in excluding

as inadmissible hearsay a portion of the Government’s trial memorandum that Shaird

sought to introduce at trial.

                                             I.

       On the night of February 7, 2009, the Philadelphia Police Department executed an

arrest warrant for Shaird at his residence. A Philadelphia police officer, Charles Zul,

later testified that during the execution of the warrant he saw Shaird open the basement

door and throw a black handgun down the basement stairs. Officer Zul subsequently

recovered a pistol from the basement. Returning later with a search warrant, police

officers recovered a number of sandwich bags containing a total of twenty-six grams of

marijuana and two digital scales.



                                             2
       During the execution of the arrest warrant, police took three men into custody,

Shaird and two other men found in the house. Once at the police station, while the three

men were still sitting handcuffed in the police transport wagon and before they had been

given Miranda warnings, 1 Detective Michael Zanetich approached and said, “It’s going

to suck for all three of you [to] go down for one bag of weed.” App. at 13. The two men

with Shaird responded to this remark by saying to Shaird, “‘Twan, you know that’s your

weed, fess up for it.” App. at 196. Detective Zanetich then asked Shaird directly,

“Antwan, is that true?” App. at 197. Shaird responded “yes.” 

asked Shaird if he would be willing to “come upstairs and tell me that?” 

“yes.” 

then escorted Shaird into the police station, placed him in a

holding cell, and Mirandized him by giving him a printed document setting out his

Miranda rights and having Shaird read a portion of the document aloud and sign it. After

being Mirandized, Shaird signed a written confession admitting that the marijuana was

his but denying possession of the gun. In total, about thirty minutes elapsed between the

time Detective Zanetich first spoke with Shaird outside the police station and the taking

of the written confession.

       Shaird was indicted on May 26, 2009. While in pretrial custody at the Federal

Detention Center in Philadelphia, Shaird wrote a letter to a friend in which he discussed

his case and stated, “All they can get me with is that G--.” App. at 563. On March 12,

2010, a jury convicted Shaird on all three counts.

       1
           See Miranda v. Arizona, 

(1966).
                                             3
                                             II.

       After conducting a suppression hearing, the District Court ruled that Shaird’s

initial oral confession was inadmissible under Miranda, but his subsequent written

confession was admissible because Detective Zanetich “mistakenly believed his

statement to the men was not equivalent to a question for Miranda purposes.” App. at

14. As such, the District Court found that the failure to administer Miranda warnings

before the first confession was not deliberate and admitted the subsequent written

confession. Shaird challenges both this ruling and the District Court’s later decision to

exclude from evidence a portion of the Government’s trial memorandum. 2

                                            III.

       As this court has explained, the standard governing the admissibility of a post-

Miranda-warning confession derived in part from a prewarning interrogation varies on

whether the initial failure to warn was deliberate or inadvertent. United States v.

Naranjo, 

, 231-32 (3d Cir. 2005). If the initial failure to warn was a

deliberate attempt to undermine the effectiveness of the Miranda warning, admissibility

is determined by applying the test set forth by Justice Kennedy in his concurrence in

Missouri v. Seibert, such that “‘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.’” 

v. Seibert, 

, 622




       2
           We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                             4
(2004) (Kennedy, J., concurring)). The Government bears the burden of showing that a

confession is admissible. Brown v. Illinois, 

, 604 (1975).

       The parties dispute the applicable standard of review for the District Court’s

finding that the failure to warn was not deliberate. The Government contends that the

finding of non-deliberateness should be reviewed for clear error. On the other hand,

Shaird contended at oral argument that in this context deliberateness is a question of law

subject to de novo review. We need not resolve that dispute here, however, because,

even applying clear error review, the District Court’s finding that Detective Zanetich’s

failure to warn was inadvertent cannot stand. But cf. 

(remanding in order for district court to make a “finding” with respect to deliberateness).

       “Factual findings are clearly erroneous only where the appellate court is left with

the definite and firm conviction that a mistake has been committed. It is not enough that

we would have reached a different conclusion as the trier of fact; as long as the district

court’s factual findings are plausible when viewed in light of the entirety of the record,

we must affirm.” Prusky v. ReliaStar Life Ins. Co., 

, 257-58 (3d Cir. 2008)

(internal citations and quotation marks omitted).

       We conclude that the District Court’s finding that the omission of warnings before

the first interrogation was inadvertent is not plausible in light of the entire record. First,

nothing in the circumstances surrounding the interrogations suggests the occurrence of a

mistake or explains why a warning could not be given prior to any interrogation. The

two interrogations were conducted in or around the police station, in close temporal



                                               5
proximity, and by the same officer, Detective Zanetich. 3 The Government does not

contend that the failure to warn was a result of Detective Zanetich’s inexperience. Cf.

(suggesting that a failure to warn would not be deliberate where

it resulted from a “rookie mistake”). To the contrary, Detective Zanetich, a seven-year

veteran of the Philadelphia Police Department, testified that he knew Miranda warnings

were required before questioning suspects and that he knew the suspects in the van had

not been warned. Critically, he testified that his conversation with the men in the van

was a deliberate strategy to elicit a confession: “I was just breaking chops to see what

would happen, you know, just – you know, because usually you tell all – three guys go

down for a little bit of weed, one of them will want to fess up.” App. at 202 (emphasis

added). Moreover, even if Detective Zanetich had been confused about whether a

statement, as opposed to a question, could trigger Miranda protection, this alone cannot

mean that the violation of Shaird’s Miranda rights was non-deliberate, because

immediately after Detective Zanetich made the statement to the men, he asked a direct

question: “Antwan, is that true?” App. at 197. It was this question that elicited Shaird’s

oral confession, and upon hearing it, Detective Zanetich immediately asked Shaird if he

would be willing to repeat the confession inside the station. In so doing, Detective

Zanetich set up the second interrogation as a mere continuation of the first one.

       In light of the surrounding circumstances and Detective Zanetich’s testimony of

his own actions and motivation, the District Court’s finding of non-deliberateness cannot


       3
        A second detective was present during the second interrogation, but Detective
Zanetich was the one asking the questions and recording Shaird’s answers.
                                             6
stand. Detective Zanetich’s testimony compels the conclusion that he knew that Miranda

prohibited the unwarned interrogation of the men in the van, but that he questioned them

anyway in the hope that one of them would “fess up.” App. at 202. 4

      Accordingly, we conclude that the District Court’s finding that the initial

unwarned interrogation was not deliberate was clearly erroneous. We thus consider

whether adequate curative measures were taken to ensure that the second confession was

voluntary. As Justice Kennedy noted, the strategy of deliberately withholding Miranda

warnings until after a suspect has already confessed “is based on the assumption that

Miranda warnings will tend to mean less when recited midinterrogation, after inculpatory

statements have already been obtained.” 

(Kennedy, J.,

concurring). Where, as here, an officer deliberately undermines the effectiveness of the -

Miranda warning by conducting an initial unwarned interrogation, the postwarning

confession must be excluded unless appropriate curative measures were taken before the

      4
         Judge Garth would affirm the judgment of the District Court which did not admit
into evidence the oral statement of Shaird, but which did admit the confession Shaird
gave after he had been formally Mirandized. Judge Garth would do so because the
District Court found as a matter of fact that there was no deliberate intent by Detective
Zanetich to evade Miranda when he spoke with Shaird and his two companions in the
van. As a consequence, Judge Garth believes that Oregon v. Elstad, 

(1985),
governs the resolution of this case, rather than Seibert, which had recognized that there
had been a deliberate intent to evade Miranda on the part of the officer who questioned
the defendant, Seibert.

      Inasmuch as we must defer to District Court Judge Sanchez’s finding of fact
which Judge Garth holds was not clearly erroneous, see United States v. United States
Gypsum Co., 

(1948), Judge Garth would affirm Shaird’s convictions and
sentence.



                                            7
postwarning confession was made. 

. Appropriate “‘curative

measures should be designed 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.’” 

542 U.S. at 622 (Kennedy, J., concurring)). Possible

curative steps include a “substantial break in time and circumstances between the

prewarning statement and the Miranda warning” and an explanation that the prewarning

custodial statement is likely inadmissible. 

(Kennedy, J.,

concurring).

       Neither these nor any other adequate curative steps were taken in this case. Both

the prewarning and postwarning interrogations were conducted by Detective Zanetich in

similar settings in police custody – first while Shaird was sitting handcuffed in the police

van outside the station, and later in an interrogation room inside the station – and with

only thirty minutes between them. Moreover, there is no evidence that Shaird was

informed prior to giving his written confession that his unwarned statement was likely

inadmissible. As Detective Zanetich acknowledged in his testimony, the two interviews

were part of the same “prompt and . . . continuous sequence,” App. at 209, and we can

find nothing in the circumstances surrounding the interrogations that would clearly alert a

detainee in Shaird’s position that the Miranda warning marked a significant change

between the legal consequences of the two periods of questioning. Because Detective

Zanetich’s failure to administer a Miranda warning before he questioned the men in the

van was deliberate and because he failed to take appropriate curative measures to ensure



                                             8
that Shaird’s second, written confession was voluntary, the District Court’s decision to

admit that confession was error.

       Does this error require overturning Shaird’s convictions? Because the District

Court’s error was constitutional in nature, it is only harmless if “it can be ‘prove[d]

beyond a reasonable doubt that the error complained of did not contribute to the verdict

obtained.’” United States v. Waller, 

, 434 (3d Cir. 2011) (quoting Chapman

v. California, 

, 24 (1967)). The Government concedes that admission of the

confession was not harmless with respect to Counts I and II, the charges of possession of

marijuana with intent to distribute and possession of a firearm in furtherance of a drug

trafficking crime. The Government contends, however, that the admission of the written

confession was harmless with respect to Count III, possession of a firearm by a convicted

felon. We agree.

       The Government’s evidence with respect to Count III, the felon in possession

count, was strong and almost entirely separate from that presented with respect to the

marijuana. Significantly, Shaird’s written confession was not part of the Government’s

case with respect to the firearm. Rather, the Government’s case on Count III rested on

two key pieces of evidence: Officer Zul’s eyewitness testimony that he saw Shaird pull

the gun from his waistband and throw it down the stairs and Shaird’s written admission

that “[a]s far as my case go [sic] . . . . [a]ll they can get me with is that G--.” App. at 563.

Taken together, these two pieces of evidence were sufficient to sustain Shaird’s

conviction on the felon in possession count. Neither of them is affected in any way by

the improper admission of Shaird’s written confession to possession of marijuana.

                                               9
       Shaird argues, however, that the admission of the written confession to marijuana

possession is not harmless with respect to the felon in possession charge because the

Government’s expert on drug trafficking drew links in his testimony between the

distribution of marijuana and the possession of firearms. We reject this argument. The

Government’s expert did mention in passing the connection between drugs and guns

generally, but he did not refer to Shaird’s written confession nor suggest that the

confession was directly probative with respect to possession of the firearm.

       In light of all the evidence presented at trial, we are convinced that the jury’s

decision to convict on Count III reflects that the jury was persuaded by Officer Zul’s

eyewitness testimony and Shaird’s own highly suggestive written statement that “all they

can get me with is the G--.” App. at 563. It follows that Shaird’s confession to

possession of marijuana did not contribute to his conviction for possession of a firearm

by a convicted felon.

                                                  IV.

       Shaird also raises as a second issue that the District Court erred in precluding him

from introducing a portion of the Government’s trial memorandum as an admission of a

party opponent.

       In its trial memorandum, the Government stated: “At South Detectives,

Philadelphia Police Detective Zanetich met the transport wagon outside South Detectives.

There, Detective Zanetich asked the men, who were all sitting together, who had the

gun.” App. at 81. At trial, Detective Zanetich testified that he did not ask the men about

the gun while they were sitting in the van. Shaird contends that the statement from the

                                             10
trial memorandum is relevant to rebut this testimony and indirectly undercut Officer

Zul’s testimony that he saw Shaird with the gun. According to Shaird’s theory, Detective

Zanetich would not have asked the men in the van who had the gun if he already knew

from Officer Zul that the gun was in Shaird’s possession. Shaird contends that the

statement is not hearsay because it is an admission of a party opponent under Federal

Rule of Evidence 801(d)(2). The Government responds that the statement is not relevant

and that, even if it were relevant, it is not an admission of a party opponent and is thus

inadmissible on hearsay grounds. There is no need for us to resolve these questions,

because even assuming arguendo that the District Court erred in excluding the evidence,

that error was harmless.

       Nonconstitutional error, like that alleged here, is harmless “where it is highly

probable that the error did not contribute to the judgment and the court has a sure

conviction that the error did not prejudice the defendant.” United States v. Vitillo, 

, 329 (3d Cir. 2007) (quotation marks and citation omitted).

       The admission of the statement from the Government’s trial memorandum could

not have significantly undercut the Government’s evidence. Moreover, the evidence is

largely cumulative of other evidence already in the record. Indeed, it is undisputed that,

while Detective Zanetich was taking Shaird’s written confession inside the police station,

Detective Zanetich repeatedly asked Shaird about the gun. As such, evidence suggesting

that Zanetich also asked the men in the van about the gun would be largely cumulative of

evidence already in the record. Thus, the statement from the Government’s trial

memorandum had, at best, extremely limited probative value, and could not, in any

                                             11
significant way, have undercut the Government’s strong evidence with respect to Count

III. Under these circumstances, even assuming aguendo that the District Court erred in

barring the introduction of the evidence, that error was harmless because it is highly

probable that the error did not contribute to Shaird’s conviction.

                                             V.

       For the foregoing reasons, we reverse the judgment of conviction with respect to

Counts I and II and remand for further proceedings regarding the conviction of Count III

consistent with this opinion.




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