author: Bradford, Judge.

text:
    Matthew Edward GREER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-404
    Court of Appeals of Indiana.
    Filed December 13, 2018
    Attorney for Appellant: Clifford M. Davenport, Davenport Law Offices, Anderson, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Jesse R. Drum, Deputy Attorney General, Indianapolis, Indiana
   Bradford, Judge.

Case Summary

[1] In 2016, Matthew Greer convinced his wife Christina to teach their minor son D.G. about sex. To that end, Christina fellated D.G. in the bathroom as Greer watched and masturbated. Several months later, Greer notified the Indiana Department of Child Services ("DCS") that Christina had molested D.G. After DCS interviewed D.G. and police interviewed Christina, the State arrested Greer and charged him with several crimes.

[2] Two weeks before Greer's trial, D.G. testified at a deposition that Greer had not participated in his molestation, merely walking in, witnessing what Christina was doing, and leaving. The prosecutor told D.G. that he thought he was lying and reminded him that he could get in "trouble" if he did not tell the truth at trial. D.G. then testified in a way consistent with his statements during his DCS interview and ultimately testified against Greer at trial, as did Christina. A jury found Greer guilty as charged, and the trial court sentenced him to forty-three and one-half years of incarceration. Greer alleges that the prosecutor's remarks during D.G.'s deposition amounted to prosecutorial misconduct that rises to the level of fundamental error. Because the prosecutor's conduct was reasonable and non-threatening, we disagree and affirm.

Facts and Procedural History

[3] In the fall of 2016, Greer, after asking many times, finally convinced his wife Christina to teach their son D.G. about sex so that his "first time wouldn't be awkward." Tr. Vol. I p. 68-69. In October of 2016, approximately one week after D.G.'s thirteenth birthday and after doing methamphetamine with Greer, Christina woke D.G. up early in the morning and performed oral sex on him in the bathroom while Greer stood nearby, watched, masturbated, looked at pornography on his mobile telephone, and showed the pornography to D.G. Greer told D.G. that "this [was] the best b*** j** [he was] ever going to get." Tr. Vol. I p. 80. After fellating D.G., Christina fellated Greer in the bathroom in front of D.G.

[4] By June of 2017, Greer and Christina had separated and frequently argued. Around this time, Greer contacted DCS and reported that Christina had molested D.G. On June 16, 2017, D.G. was interviewed by DCS. Based on the results of D.G.'s interview, Christina was arrested later that day and confessed six days later when interviewed by police. Despite not having spoken with D.G. about his interview, Christina told a police detective before her interview that her statement would "mirror" D.G.'s. Tr. Vol. I p. 176. Later, when police tried to arrest Greer, he forcibly resisted. On June 23, 2017, the State charged Greer with Level 1 felony child molesting, Level 3 felony vicarious sexual conduct, Level 4 felony incest, Level 6 felony performing sexual conduct in the presence of a minor, and Class A misdemeanor resisting law enforcement.

[5] Approximately two weeks before trial, D.G. was deposed. At first, D.G. testified that Greer had "walked in to the bathroom[,] was shocked at what he observed[,] and went back to bed." Tr. Vol. I p. 107. The prosecutor told D.G. that he did not think that he was telling the truth and that he could get into trouble for lying under oath. D.G. then admitted that he had lied and asked "to restart[.]" Tr. Vol. I p. 107. D.G.'s subsequent deposition testimony incriminated Greer, as did his trial testimony. On January 19, 2018, the jury found Greer guilty as charged, and the trial court sentenced him to forty-three and one-half years of incarceration.

Discussion and Decision

[6] Greer claims that the prosecutor's alleged misconduct during D.G.'s deposition denied him his right to present witnesses in his own defense at trial.

A fundamental element of due process of law is the right of an accused to present witnesses in his own defense. United States v. Hooks , 848 F.2d 785, 799 (7th Cir. 1988). Those witnesses must be "free to testify without fear of governmental retaliation." Id. (quoting United States v. Blackwell , 694 F.2d 1325, 1334 (D.C. Cir. 1982) ). [...] A prosecutor's warning of criminal charges during a personal interview with a witness improperly denies the defendant the use of that witness's testimony regardless of the prosecutor's good intentions. [ Diggs v. State , 531 N.E.2d 461, 464 (Ind. 1988) ]. A prosecutor may not prevent nor discourage a defense witness from testifying. Id.

Collins v. State , 822 N.E.2d 214, 220 (Ind. Ct. App. 2005), trans. denied .

[7] Greer acknowledges that he failed to raise this issue in the trial court but attempts to avoid the effect of his waiver by claiming that the error was fundamental. "The fundamental error exception is 'extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.' " Delarosa v. State , 938 N.E.2d 690, 694 (Ind. 2010) (quoting Mathews v. State , 849 N.E.2d 578, 587 (Ind. 2006) ). To be fundamental, the error "must either 'make a fair trial impossible' or constitute 'clearly blatant violations of basic and elementary principles of due process.' " Id. (quoting Clark v. State , 915 N.E.2d 126, 131 (Ind. 2009) ). The exception applies "only in 'egregious circumstances.' " Id. at 694-95 (quoting Brown v. State , 799 N.E.2d 1064, 1068 (Ind. 2003) ). A finding of fundamental error is essentially a conclusion that the trial court erred by failing to sua sponte correct an error. Brewington v. State , 7 N.E.3d 946, 974 (Ind. 2014).

[8] We conclude that Greer has failed to establish that anything the prosecutor did was improper, much less egregious or blatant. Although the record does not contain a transcript of D.G.'s pretrial deposition, portions of it were made part of the record during Greer's cross-examination of D.G.:

Q Okay but then [the prosecutor] was talking to you and he says do you remember these series of questions and answers "[D.G.] I'm going to be quite honest with you I've been doing this this is my twenty-second year and I can just tell from your demeanor that you're not being truthful here today"?
A Yes I [re]member that.
Q Did that frighten you?
A Yes.

Tr. Vol. I p. 93.

[9] In the deposition, the prosecutor suggested to D.G. that he had concocted a story with his grandfather to protect Greer, which led to the following:

Q Okay let[']s get back to [the prosecutor] and the deposition. Umm... he says umm... I know because I think it's your grandpa and you answered it's not my grandpa umm... you want to know how I know that [the prosecutor] says and you says he hasn't told me anything I swear he hasn't told me anything and then [the prosecutor] reminds you that he saw the two (2) of you talking or no he says because you were outside of the room last week before we talked your grandpa told me [D.G.] is going to say something different [than] what he said in his video. Did your grandpa tell you to say something different?
A He did not.
Q But when [the prosecutor] suggested that to you you said umm... umm... yet I have no clue. You said I have no clue I swear and then [the prosecutor] says well that was like four (4), five ( [5] ) six (6) days ago you were making sense then in this case and now you're saying something different. Did that scare you?
A Yes.
[....]
Q Okay and umm... back to the deposition do you remember when [the prosecutor] said to you and she[,] referring to your Mother[,] is doing thirty (30) years and lying about it. That doesn't make any sense [D.G.] look I understand this is your parents and you're not happy about the situation but there is no use in you getting jammed up for something that your mom is still going to come and testify and tell the truth so what's going to happen is your dad can still get convicted and you're in trouble for lying do you remember him saying that?
A Yes.
Q Did that scare you?
A Yes.
Q What does jammed up mean to you?
A Put [into] a situation.
Q What kind of a situation?
A Umm... a bad spot where I don't want to be liking getting in trouble.
Q Okay and what in your mind at fourteen (14) thirteen (13) years old what does getting in trouble mean in this context? Did you think you could go jail?
A I thought that's what he was talking about yes.
Q And then he says this is not a joke anymore and you say I know. And then later on do you recall this series of question and answer[s]? [D.G.] you got to tell the truth right now. This is how you can get yourself out of trouble. Did you believe when he said that, that you were in trouble?
A I thought I was going to be yes.
Q Okay. By admitting you're trying to save your dad here and you say okay aren't you and you say yes okay not that's not going to work now he says to you. What did you take that to mean?
A I thought he was saying you know it's not going to it doesn't matter if you're trying to protect him or not.
Q Yeah in other words if you don't say the same thing today that you said before [during your DCS interview] you're in trouble. Is that what went through your mind?
A Yeah.
Q You have to tell the truth. You do[ ] not want to get up in front of a Judge and say what you're saying here because that's not going to end well for you or your dad. Do you remember that statement?
A Yes.
Q And you said yes sir. Did that scare you?
A Kind of yes.
Q Did that bring to mind that you were going to get punished if you didn't come in to court and say what you had originally said?
A A little bit yeah.

Tr. Vol. I pp. 94-95, 96-98.

[10] Under the circumstances of this case, we conclude that none of this, despite the warnings of "trouble" if D.G. failed to testify truthfully, amounts to misconduct. First and foremost, the only reason that any of this even occurred is that D.G. radically changed his story two weeks before a trial in which he was expected to be one of the State's leading witnesses. We think that the prosecutor was entitled to fully explore this change, including informing the witness that there could be consequences for lying on the stand. Moreover, the prosecutor did not explicitly threaten D.G. with prosecution and repeatedly reminded him that he would be in trouble only if he did not tell the truth, not if he testified on Greer's behalf. Finally, it is not as though the prosecutor lacked an objective, good-faith basis for believing that D.G. was lying. The prosecutor was fully aware that, not only had D.G. incriminated his father in earlier statements, he had done so in a way that was almost entirely consistent with-and therefore corroborated by-Christine's extremely self-incriminating statements.

[11] Greer draws our attention to the case of Diggs v. State , 531 N.E.2d 461 (Ind. 1988), in which the Indiana Supreme Court concluded that conduct by a prosecutor improperly denied the defendant the right to present witnesses on his behalf. In Diggs , the prosecutor approached a potential defense witness during trial and told him "that if he testified to 'the same statements he did in his deposition, he [would] be charged, according to his own testimony.' " Id. at 464 (brackets in original). The witness refused to testify when called, invoking his Fifth Amendment right against self-incrimination, and the Court concluded that this amounted to an erroneous denial of Diggs's right to present witnesses. Id. This case is readily distinguishable from Diggs on the facts. Perhaps the most compelling difference between the cases is that the prosecutor in Diggs explicitly threatened the witness with prosecution for perjury if he testified a certain way, which did not occur here. Moreover, in Diggs there is no indication that the witness in question abruptly changed his story on the eve of trial or that the prosecutor had any good-faith reason to question the witness's veracity. Simply put, the prosecutor's conduct here is not in the same league as the prosecutor's conduct in Diggs . We conclude that Greer's reliance on Diggs is unavailing.

[12] The prosecutor's conduct in this case strikes us much more as a reasonable inquiry into why a prosecution witness had suddenly changed his story two weeks before trial than an attempt to browbeat him into not testifying for the defendant. Were we to hold otherwise, we would essentially be ruling that it is "egregious" misconduct for a prosecutor to vigorously question a witness about why he had told one story for months only to change his tune two weeks before trial. We will not issue such a ruling. We conclude that Greer has failed to establish error under the circumstances of this case, much less fundamental error.

[13] The judgment of the trial court is affirmed.

Bailey, J., and Altice, J., concur.


source: Caselaw Access Project

author: SELYA, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Renato DE LA CRUZ, Defendant, Appellant.
    No. 14-2132
    United States Court of Appeals, First Circuit.
    August 19, 2016

      Eduardo Masferrer, with whom Mas-ferrer & Associates, PC was on brief, for appellant.

      Robert E. Richardson, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
    Before TORRUELLA, SELYA and THOMPSON, Circuit Judges.
   SELYA, Circuit Judge.

In this criminal appeal, the appellant strives to convince us that we ought to overturn his convictions for theft of public money, use of a falsely obtained social security number, and aggravated identity theft. We are not persuaded: neither the appellant’s quest for suppression of evidence nor his challenge to the district court’s jury instructions has merit, and the record reveals that the government’s case rests on a durable foundation. Accordingly, we affirm the judgment below.

I. BACKGROUND

We start with a sketch of the facts and the travel of the case. To the extent that we rehearse the facts, whether here or in greater detail in connection with our discussion of particular issues, we take them in the light most favorable to the jury’s verdict, consistent with record support. See United States v. Maldonado-García, 446 F.3d 227, 229 (1st Cir. 2006).

The appellant’s true name is Renato De La Cruz. The appellant is a citizen of the Dominican Republic who entered the United States illegally sometime in 1993. Not long after, he went to New York City, where he paid a man $1,500 for identity documents in the name of “Alberto Pena.” These documents matched the identity of a real Alberto Pena (also a native of the Dominican Republic, who became a lawful permanent resident of the United States).

Once the appellant had procured Pena’s identity documents, he was able to obtain a Dominican passport from the Dominican embassy and a “green card” from the Immigration and Naturalization Service. In December of 1994 — four days before the real Pena applied for a social security number — the appellant used Pena’s name, date of birth, parentage, and alien number to apply for and receive a social security number. Shortly thereafter, the appellant — apparently nervous about his physical proximity to the real Pena (who was residing in New York) — moved away, eventually relocating to Massachusetts.

While in Massachusetts, the appellant worked intermittently for a general contractor. At various times from December of 2010 through October of 2012, the appellant received unemployment benefits, including 21 weeks of federally-funded extension benefits. Because an alien is eligible for such unemployment benefits only if he is authorized to work in the United States, the appellant had to use his social security number to secure his benefits. The federally-funded benefits that the appellant received amounted to $11,340, and the appellant does not dispute that these benefits comprised public funds within the purview of 18 U.S.C. § 641.

On December 18, 2012, U.S. Immigration and Customs Enforcement (ICE) officers arrested the appellant. A federal grand jury subsequently returned a three-count indictment charging him with theft of public money, in violation of 18 U.S.C. § 641 (count 1); use of a falsely obtained social security number to obtain benefits, in violation of 42 U.S.C. § 408(a)(7)(A) (count 2); and aggravated identity theft, in violation of 18 U.S.C. § 1028A (count 3). A superseding indictment tracked this three-count structure.

In due course, the appellant moved to suppress statements made on the date of his arrest. Through a supplemental motion, he also sought suppression of any physical evidence gathered at that time. The government opposed these motions. After an evidentiary hearing, the district court denied the motions. See United States v. De La Cruz, No. 13-10022, 2014 WL 1515410 (D. Mass. Apr. 18, 2014). The appellant moved for reconsideration, but to no avail. See United States v. De La Cruz, No. 13-10022, 2014 WL 1796654 (D. Mass. May 5, 2014).

On June 25, 2014 — following a three-day trial — a jury found the appellant guilty on all three counts. The appellant filed a post-trial motion for judgment of acquittal under Federal Rule of Criminal Procedure 29(c) as to counts 1 and 3, which the district court rejected. See United States v. De La Cruz (De La Cruz III), No. 13-10022, 2014 WL 3925497 (D. Mass. Aug. 12, 2014). The court sentenced the appellant to concurrent one-month terms of im-murement on the first two counts and a consecutive 24-month term of immurement on count 3. This timely appeal followed.

II. ANALYSIS

We divide our discussion of the issues into three segments, corresponding to the components of the appellant’s assevera-tional array.

A. Suppression.

To place the suppression issues into perspective, we think it useful to embellish the barebones account provided above. In the process, we accept the facts as supportably found by the district court. See United States v. Romain, 393 F.3d 63, 66 (1st Cir. 2004).

On December 18, 2012, a supervisory ICE officer, Andrew Graham, accompanied by fellow ICE officers, sought to arrest the appellant as a person unlawfully present in the United States. Because the appellant was the subject of an ongoing Department of Labor (DOL) criminal investigation, a DOL agent and a representative of the Social Security Administration also went along.

The cadre of officers and agents proceeded to an apartment building in Salem, Massachusetts, believing that the appellant resided there with a girlfriend (Mayra Es-pinal). Graham and another ICE officer went to the front door of Espinal’s apartment. When the appellant came to the door, Graham — speaking across the threshold — employed a ruse and told him (falsely) that the officers were concerned that he might have a gun. The appellant consented to a frisk and told officers that they could enter the apartment. Once inside, Graham arrested the appellant.

After retrieving additional clothing for the appellant, the officers escorted the appellant into a hallway outside the apartment. They were joined by Christina Ro-sen, the DOL agent. Graham asked the appellant whether he preferred his Miranda warnings, see Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), to be read to him in English or in Spanish. The appellant elected to hear them in English. Grahani then read the appellant his Miranda rights from a preprinted card. Standing in the hallway, the appellant made a number of admissions: he related his true name, acknowledged that he had no lawful right to be in the United States, and disclosed his purchase of Pena’s identity information.

Roughly 20 minutes after being given his Miranda warnings, the appellant was transported to the ICE office in Burlington, Massachusetts. Upon his arrival, he was processed administratively, and an ICE officer explained that he was under arrest for immigration violations and that he would have to appear before an immigration judge to determine his status. To that end, he was given a notice to appear in the immigration court, which explained, inter alia, his right to be represented by an attorney at no expense to the government. The officer made it clear, however, that he was only serving the appellant with paperwork anent the immigration matter and ' that other officers would process him with respect to criminal charges.

After his administrative processing concluded, the appellant was taken to a different interview room. Agent Rosen introduced herself and explained that a criminal investigation was being conducted into the appellant’s suspected theft of identity and misuse of public funds. She further explained that the agents in attendance were criminal investigators, not immigration officers. The appellant received his Miranda rights once again, and he signed a form acknowledging that he understood those rights and was willing to waive them.

The appellant proceeded to make a number of admissions. He recounted how he had obtained the Pena identity documents; admitted that he used these documents to get a passport, green card, and social security number; and described how, as Pena, he had collected unemployment benefits in Massachusetts. Those admissions were memorialized in a statement transcribed by Agent Rosen and signed by the appellant.

Against this factual backdrop, the appellant musters three arguments in support of his assertion that the district court erred in denying suppression. First, he submits that the ICE officers acted outside their authority when they arrested him without an administrative arrest warrant and, thus, his subsequent statements should be suppressed as the fruit of an illegal arrest. Second, he submits that the officers’ warrantless entry into the apartment offended the Fourth Amendment because he did not validly consent to their entry. Finally, he submits that his Miranda waiver at the ICE office should be disregarded because he was provided with intervening and conflicting administrative warnings. We address these arguments sequentially, pausing first, however, to frame the standard of review.

In reviewing the denial of a suppression motion, we assay the district court’s conclusions of law de novo and its factual findings, including its credibility determinations, for clear error. See United States v. Feliz, 794 F.3d 123, 130 (1st Cir. 2015). The fact-based aspect of this review is “highly deferential.” United States v. Floyd, 740 F.3d 22, 33 (1st Cir. 2014). “If any reasonable view of the evidence supports the denial of a motion to suppress, we will affirm the denial.” United States v. Boskic, 545 F.3d 69, 77 (1st Cir. 2008).

The appellant’s first argument, which centers on the lack of an administrative arrest warrant, emanates from 8 U.S.C. § 1357(a)(2). That statute authorizes an immigration officer to effect a war-rantless arrest only in two situations: when an alien “in [the officer’s] presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens”; or when the officer “has reason to believe that the alien ... is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest.” The appellant asserts that the ICE officers who arrested him violated these strictures, and that the remedy for that violation is suppression of all the statements that he subsequently made.

We assume, albeit without deciding, that the ICE officers who effected the arrest exceeded their federal statutory mandate. Even so, the appellant’s argument is foreclosed by a solid phalanx of case law.

“Suppression of evidence is strong medicine, not to be dispensed casually.” United States v. Adams, 740 F.3d 40, 43 (1st Cir.), cert. denied, — U.S.-, 134 S.Ct. 2739, 189 L.Ed.2d 775 (2014). Normally, a violation of federal or state law triggers the exclusionary rule only if the evidence sought to be excluded “arfises] directly out of statutory violations that implieate[] important Fourth and Fifth Amendment interests.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 348, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006); see United States v. Caceres, 440 U.S. 741, 751-55, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979). As a result, “[t]he cases in which the Supreme Court has approved a suppression remedy for statutory violations are hen’s-teeth rare.” Adams, 740 F.3d at 43.

We have said before, and today reaffirm, that a statutory violation “untethered to the abridgment of constitutional rights” is insufficient to justify suppression. Id. The case at hand falls squarely within the contours of that premise: the failure to obtain an administrative arrest warrant as contemplated by 8 U.S.C. § 1357, without more, does not justify the suppression of evidence. See United States v. Abdi, 463 F.3d 547, 556-57 (6th Cir. 2006).

This brings us to the appellant’s second argument: that suppression was warranted because he never validly consented to the ICE officers’ entry into the apartment. That argument is dead on arrival: the appellant has failed to specify what evidence he seeks to suppress as a result of the ICE officers’ allegedly invalid entry into the apartment. Nor does this seem to be an oversight: at trial, the government introduced no physical evidence derived from within the apartment. The appellant must be arguing, then, for suppression of the statements that he made in the outside hallway of the apartment building and at the ICE office. But he is whistling past the graveyard: regardless of the validity vel non of the appellant’s consent to the ICE officers’ entry into the apartment, that entry has no bearing on the admissibility of statements that the appellant later made outside the apartment. We explain briefly.

In New York v. Harris, the Supreme Court declined to apply the exclusionary rule to statements made by a defendant at a police station after the police had effected an unconstitutional arrest in the defendant’s home (which the police had entered without either a warrant or the defendant’s consent). See 495 U.S. 14, 16, 21, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990). The Court’s reasoning started with a frank recognition of the rule prescribed in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980): “that the Fourth Amendment prohibits the police from effecting a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.” 495 U.S. at 16, 110 S.Ct. 1640. After acknowledging that the defendant’s arrest transgressed both the Payton rule and the Fourth Amendment, however, the Harris Court held that suppression of the defendant’s statements was not compelled. The Court explained that “the rule in Payton was designed to protect the physical integrity of the home; it was not intended to grant criminal suspects ... protection for statements made outside their premises where the police have probable cause to arrest the suspect for committing a crime.” Id. at 17, 110 S.Ct. 1640. Fairly viewed, the defendant’s statements at the police station were neither “the product of being in unlawful custody” nor “the fruit of having been arrested in the home rather than someplace else.” Id. at 19, 110 S.Ct. 1640.

So it is here. The ICE officers indisputably had probable cause to arrest the appellant both administratively (for being an alien unlawfully present in the United States) and criminally (for aggravated identity theft and related offenses). Indeed, the appellant, who has fought tooth and nail on a variety of other points, has not contested the existence of probable cause. It follows inexorably — as night follows day — that the appellant was lawfully in the officers’ custody when he made the inculpatory statements outside the confines of his home. .

Moreover, those statements bore no relation to the underlying illegality that he alleges (that is, the ostensibly nonconsen-sual entry into his home). After all, the appellant was neither questioned about anything observed in the apartment nor confronted with any evidence found there. In a nutshell, then, the appellant’s inculpa-tory statements were not the product of unlawful custody, nor were they the fruit of the appellant having been arrested in his home (rather than somewhere else). Neither the absence of an administrative arrest warrant nor the lack of valid consent could change that equation.

We turn next to the appellant’s third suppression argument, which seeks exclusion of the statements that he made at the ICE office in Burlington. He contends that his Miranda waiver at Burlington was neither knowing nor intelligent since he was given an earlier administrative warning that differed in an important respect from the standard Miranda warning. The district court rejected this contention, and so do we.

Specifically, the appellant points to the portion of the administrative warning in which he was advised that he might have to pay for legal representation should he desire the services of an attorney. This advice conflicted with his broader right to appointed counsel under Miranda and, in his view, “[Requiring someone to sort out such [conflicting warnings] is an unfair burden to impose on an individual already placed in a position that is inherently stressful.” United States v. San Juan-Cruz, 314 F.3d 384, 388 (9th Cir. 2002).

San Juan-Cruzis not in point. There, the defendant, following his arrest by Border Patrol agents, was advised of his rights in connection with the administrative arrest. See id. at 386. Pertinently, an agent told the defendant that he had the right to have counsel present during questioning, but not at the government’s expense; and that any statements he made could be used against him for purposes of removal. See id. Shortly thereafter and in the same location, the same agent read the defendant his Miranda rights. See id. The defendant then proceeded to make a series of incriminating statements. See id. at 387. The Ninth Circuit held that, under these circumstances, the Miranda warnings were insufficiently clear. See id. at 389. The court explained that:

When a warning, not consistent with Miranda, is given prior to, after, or simultaneously with a Miranda warning, the risk of confusion is substantial, such that the onus is on the Government to clarify to the arrested party the nature of his or her rights under the Fifth Amendment. The Government should not presume after having read two sets of contradictory warnings to an individual that he or she possesses sufficient legal or constitutional expertise to understand what are his or her rights under the Constitution.

Id.

This case is a horse of a different hue. Here, law enforcement personnel read the appellant his Miranda rights in his preferred language even before he received any administrative warnings. Later, the appellant was given both administrative warnings and Miranda warnings, but under circumstances that differed materially from those in San Juan-Cruz. First — unlike in San Juan-Cruz — the appellant already had received Miranda warnings (while at the apartment building) and made what amounted to a full confession before any administrative warnings were given. Second — unlike in San Juan-Cruz— different officials administered the different warnings. Third — unlike in San Juan-Cruz — the agent who administered the subsequent set of Miranda warnings took care to explain to the appellant that she was a criminal investigator and that she and her colleagues were distinct from the ICE officers handling the administrative case. Fourth — unlike in San Juan-Cruz— there were both spatial and temporal gaps between the administrative warnings and the Miranda warnings (that is, they were administered in different rooms at different times).

On this record, the government handily carried its burden of distinguishing the appellant’s administrative rights from his criminal rights and clarified to him the nature and extent of his Fifth Amendment rights before he confessed to the DOL criminal investigator. Simply put, the risk of confusion that troubled the San Juan-Cruz court did not exist here. We hold, therefore, that the district court did not clearly err in finding that the appellant was not confused or otherwise unfairly prejudiced by the presentation of the conflicting warnings.

To say more about the matter of suppression would be pointless. Based on what we already have said, it is pellucid that the district court did not err in turning aside the appellant’s attempts to suppress evidence.

B. Sufficiency of the Evidence.

The appellant contends that the government failed to prove beyond a reasonable doubt that he was guilty either of theft of public funds (count 1) or aggravated identity theft (count 3). After glancing at the legal landscape, we address these contentions separately.

Where, as here, a defendant files a timely post-verdict motion for judgment of acquittal under Federal Rule of Criminal Procedure 29(c), his rights are fully preserved. See United States v. Castro-Lara, 970 F.2d 976, 980 (1st Cir. 1992). Thus, we review the denial of his motion for judgment of acquittal de novo. See United States v. Kuc, 737 F.3d 129, 134 (1st Cir. 2013). In the course of that review, we take the evidence, both direct and circumstantial, in the light most hospitable to the government and draw all reasonable inferences in the government’s favor. See id. In this endeavor, “we must ask whether ‘a- rational factfinder could find, beyond a reasonable doubt, that the prosecution successfully proved the essential elements of the crime.’ ” Id. (quoting United States v. Valerio, 676 F.3d 237, 244 (1st Cir. 2012)). We do not “weigh the evidence or make credibility judgments; these tasks are solely within the jury’s province.” United States v. Hernández, 218 F.3d 58, 64 (1st Cir. 2000).

It is against this backdrop that we evaluate the appellant’s sufficiency challenges to counts 1 and 3 (taking those counts in reverse order).

1. Aggravated Identity Theft (Count 3). Under the statute of conviction, 18 U.S.C. § 1028A(a)(l), a person is guilty of aggravated identity theft if, “during and in relation to any felony violation enumerated in subsection (c),” that person “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” Here, the government charged theft of public money (unemployment benefits), in violation of 18 U.S.C. § 641, as the underlying felony. The parties agree that such an offense is one of the crimes enumerated in section 1028A(c).

The superseding indictment charged the appellant with using two “means of identification” in committing theft of public funds: Pena’s name and date of birth. The appellant asseverates that the evidence was insufficient to show that these “means of identification” appropriated the specific identity of the real Pena. We disagree.

“Means of identification” is a term of art. Congress has defined that term to mean, in relevant part,

any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any—
(A) name, social security - number, date of birth, official State or government issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer identification number.

18 U.S.C. § 1028(d)(7). Given this definition, the record here is ample to ground a finding that the appellant committed aggravated identity theft.

The evidence introduced at trial established that unemployment benefits are public funds and that an individual seeking such benefits must provide biographical information' — including his name and date of birth — in his application. So, too, the evidence established that the appellant used both Pena’s name and date of birth in applying for (and receiving) unemployment benefits. Based on this evidence, a rational jury could have found beyond a reasonable doubt — as this jury did — that the appellant committed aggravated identity theft.

Our decision in Kuc is instructive. There, the defendant used the full name of the victim and the name of the victim’s company to ship stolen computer parts to multiple addresses. See Kuc, 737 F.3d at 134-35. We held that these two “means of identification” were sufficient “to identify a specific individual” — the victim — within the meaning of 18 U.S.C. § 1028(d)(7). See id. at 135. On that basis, we upheld the defendant’s conviction for aggravated identity theft. See id.

In an effort to put the genie back into the bottle, the appellant, ably represented, spins an argument that is too clever by half: though acknowledging that he used Pena’s purloined name and date of birth in applying for unemployment benefits, he suggests that those items, singly or in the ensemble, did not constitute a “means of identification” within the meaning of 18 U.S.C. § 1028A(a)(l). To support this suggestion, he baldly asserts that “the evidence produced at trial established that the name and date of birth were part of a fictional identity that included an address, an employer and a social security number that, taken together, did not identify the true Alberto Pena of New York for purposes of obtaining unemployment benefits.”

This approach gets the appellant high marks for creativity, but a failing grade on the merits. To begin, the appellant’s own admissions undermine his present assertion. In the statement that he dictated and signed at the ICE office in Burlington (which was introduced at trial), the appellant confessed that he knew he was wrongly appropriating Pena’s identity. In his own words, “I was scared that Alberto Pena would find out I was using his identity” and “I know using someone else’s identity is wrong and illegal. I used Alberto Pena’s identity to stay in the country & to work & help my family.”

We add, moreover, that the case law gives no sustenance to the appellant’s construct. In United States v. Savarese, we rejected the premise that “[a] name ..., without more, cannot constitute a ‘means of identification’ for purposes of aggravated identity theft.” 686 F.3d 1, 7 (1st Cir. 2012). To the contrary, “[t]he language of § 1028 ... plainly contradicts this theory, defining a ‘means of identification’ as ‘any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any ... name, social security number, date of birth, [or] official State or government issued driver’s license or identification number ....’” Id. (quoting 18 U.S.C. § 1028(d)(7)(A)).

The appellant tries to wriggle out from under Savarese. He makes much of the fact that he was using a social security number different from the number assigned to the real Pena. This distinction, however, does not make a dispositive difference: the appellant cannot avoid responsibility under section 1028A(a)(l) simply by attaching a different social security number to the true Pena’s name and date of birth. In the last analysis, the statutory term “means of identification” does not require that the information used to identify the specific individual whose identity has been stolen must match that individual in every detail. Any other construction of the statute would be fatuous: it would enable a defendant to avoid responsibility under section 1028A(a)(l) by the simple expedient of using a single piece of information that does not coincide with the victim.

The appellant makes no headway by hawking the Fourth Circuit’s decision in United States v. Mitchell, 518 F.3d 230 (4th Cir. 2008), for the proposition that “non-unique identifiers” are “insufficient to identify a single, unique individual.” In that case, the evidence, taken in the light most favorable to the government, showed only that the defendant had taken the name “Marcus Jackson” from a telephone book. See Mitchell, 518 F.3d at 233. Noting that the defendant had used “a hopeless muddle of non-matching and matching information,” the court held that the defendant’s mere use of the name “Marcus Jackson” was insufficient to identify a specific individual. Id. at 236. It was careful to explain, however, that when “a non-unique identifier is coupled with other information to identify a specific individual, ‘a means of identification of another person’ is created.” Id. at 234. That is exactly what happened here: the appellant used Pena’s name and date of birth in applying for unemployment benefits, and those two pieces of information (taken in conjunction with one another) were sufficient to identify a specific individual — the real Pena. See 18 U.S.C. § 1028(d)(7).

2. Theft of Public Funds (Count 1). The appellant argues that the government’s proof was .insufficient to establish that he stole money with the intent of depriving the United States of the use of that money and, therefore, that' the district court erred in denying his motion for judgment of acquittal as to count 1. In support, he asserts that he “incorrectly, but genuinely, believed that because he worked and paid into the unemployment system under the Social Security number he was issued, he was therefore entitled to receive unemployment benefits until he could resume working to support himself and his family.”

This argument lacks force. The appellant never testified, and the record is utterly devoid of any evidénce as to the appellant’s innocent state of mind. The evidence before the jury pointed in the opposite direction: the DOL agent who interviewed the appellant in Burlington testified that the appellant admitted that he knew “100 percent” that his receipt of unemployment benefits was a crime and that he “didn’t earn” those benefits. These admissions were enough to enable the jury to conclude that the appellant acted with the necessary criminal intent.

The appellant makes little progress by-pointing out that he paid income tax on the unemployment benefits that he received. Paying taxes on ill-gotten gains is as consistent with a desire that a crime go undetected as it is with a lack of criminal intent.

C. Jury Instructions.

The last leg of our journey takes us to the appellant’s claim that the district court’s jury instructions were faulty. The standard of review for claims of instructional error is not monolithic: such claims, if preserved, are reviewed either de novo or for abuse of discretion, depending on the nature of a particular claim. When the claim of error involves a question as to the legal sufficiency of a trial court’s charge to the jury/ such as a claim that the court omitted a legally required instruction or gave an instruction that materially misstated the law, our review is de novo. See, e.g., United States v. Nascimento, 491 F.3d 25, 33 (1st Cir. 2007); Sanchez-Lopez v. Fuentes-Pujols, 375 F.3d 121, 133 (1st Cir. 2004). When the claim of error focuses on the trial court’s word choices, however, our review is for abuse of discretion. See, e.g., United States v. Hall, 434 F.3d 42, 56 (1st Cir. 2006); Zimmerman v. Direct Fed.Credit Union, 262 F.3d 70, 78-79 (1st Cir. 2001).

We summed up these varying standards of review in Elliott v. S.D. Warren Co., 134 F.3d 1 (1st Cir. 1998), in which we stated that “[a] trial court is obliged to inform the jury about the applicable law, but, within wide limits, the method and manner in which the judge carries out this obligation is left to his or her discretion.” Id. at 6. Sometimes, a reviewing court may have to employ these varying standards of review sequentially to resolve a single claim of instructional error (for example, reviewing de novo to determine that a challenged instruction is legally correct and then reviewing for abuse of discretion to weigh the court’s choices about how best to communicate that legal principle). See, e.g., United States v. DeStefano, 59 F.3d 1, 2 (1st Cir. 1995).

With these standards in mind, we turn to the appellant’s claim of instructional error. That claim, which was preserved below, zeros in on the district court’s charge with respect to the second element of aggravated identity theft. The court told the jury that it had to find that “in committing the offense, the defendant used a means of identification of another.” It added that the jury had to “find that the means of identification played a role in committing the offense of theft of money.”

The appellant posits that the phrase “played a role” impermissibly diluted the government’s burden of proving this element of aggravated identity theft. In his view, the district court “was required ... to state that the ‘means of identification’ used must cause or be essential to the commission of the offense.”

This view is meritless. 18 U.S.C. § 1028A(a)(l) imposes criminal liability on a person who “during and in relation to [an enumerated crime], knowingly ... uses, without lawful authority, a means of identification of another person.” The statute nowhere says that the means of identification must cause or be essential to the enumerated crime — nor is there any valid reason for us to read such a requirement into the statute.

In all events, a district court is entitled to some latitude in deciding how best to communicate legal principles to jurors. See United States v. Paniagua-Ramos, 251 F.3d 242, 245 (1st Cir. 2001). The court below did not exceed that latitude. Its “plays a role” language closely mirrors the statutory language (“during and in relation to”), at least in practical effect, and the court neither erred nor abused its discretion in employing this phraseology.

III. CONCLUSION

We need go no further. For the reasons elucidated above, the judgment is

Affirmed.

      . The immigration officer who processed the appellant administratively was not present in this room, nor did he participate, in the interview that ensued.

      . Along the same lines, 8 C.F.R. § 287.8(c)(2)(h) provides that "[a] warrant of arrest shall be obtained except when the designated immigration officer has reason to believe that the person is likely to escape before a warrant can be obtained.” For present purposes, the regulation adds nothing to the statutory proviso and, thus, we make no further reference to it.

      . We say "normally” because a statutory violation would also animate the exclusionary rule when the statute itself mandates suppression as a remedy. See, e.g., United States v. Giordano, 416 U.S. 505, 524-29, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). Because the statute at issue here — 8 U.S.C. § 1357 — does not provide for an independent suppression remedy, this exception to the usual rule is inaccessible to the appellant.

      . Because the appellant does not argue that his arrest independently violated his constitutional rights apart from the statutory violation, we need not address whether his arrest was reasonable under the Fourth Amendment. See Ortiz v. Gaston Cty. Dyeing Mach. Co., 277 F.3d 594, 598 (1st Cir. 2002). In all events, as we discuss infra, the officers had probable cause to effect the arrest.

      . The appellant’s subsequent statements at the ICE office were even further removed — temporally, spatially, and in every other arguably relevant sense — -from the warrantless arrest.

      . Laboring to blunt the force of this reasoning, the appellant relies on the Supreme Court's decision in Brown v. Illinois, 422 U.S. 590, 602-03, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). This reliance is mislaid. In Brown, the arrest was effected without either a warrant or probable cause. See id. at 591, 95 S.Ct. 2254. By contrast, probable cause unarguably supported the warrantless arrest here. Brown, therefore, offers no succor to the appellant.

      . The notice to appear provided to the appellant advised him that ''[i]f you so choose, you may be represented in this [immigration] proceeding, at no expense to the Government, by an attorney or other individual authorized and qualified to represent persons before the Executive Office for Immigration Review .... A list of qualified attorneys and organizations who may be available to represent you at no cost will be provided with this notice.” A notice of rights provided contemporaneously contained similar language.

      . The present case does not require us to determine whether San Juan-Cruz was correctly decided, and we leave that issue for another day.

      . The genesis of the appellant’s social security number furnishes further evidence that the appellant misappropriated Pena’s identity. The jury had available to it the appellant’s application for a social security number, in which the appellant used Pena’s name, date of birth, place of birth, and parentage. In addition, the appellant used his own green card (obtained under false pretenses), which contained Pena’s alien number. As the district court perspicaciously noted: "any lingering doubt as to the association of the name with the true Alberto Pena’s identity would have been dispelled by tracing the social security number used by [the appellant] to the original application for the number.” De La Cruz III, 2014 WL 3925497, at*l.

      . The appellant suggests that he made these admissions in reference to his unlawful presence in the United States. That suggestion is fanciful: the statements were made in the course of an interview by an agent who had made pellucid that she was a DOL criminal investigator, not an immigration officer; and the context gave the jury ample reason to think that the statements referred to the appellant's collection of unemployment benefits.


author: THOMPSON, Circuit Judge. LYNCH, Circuit Judge,

text:
    UNITED STATES of America, Appellee, v. Lamar YOUNG, Defendant, Appellant.
    No. 15-1495
    United States Court of Appeals, First Circuit.
    August 19, 2016

      Edward S. MacColl, with whom Thompson, Bull, Bass & MacColl, LLC, P.A., Portland, ME, were on brief, for appellant.
    Renée M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty, II, United States Attorney, was on brief, for appellee.
    Before LYNCH, THOMPSON, and BARRON, Circuit Judges.
   THOMPSON, Circuit Judge.

Defendant-appellant Lamar Young (Young) entered a conditional guilty plea and was convicted of conspiracy to distribute and possess with intent to distribute 28 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a) & (b)(1)(B), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Before us, Young challenges the district court’s denial of his motion to suppress evidence obtained by law enforcement officers while executing a warrant for his arrest. Young argues that the evidence was improperly seized when the officers entered his girlfriend’s apartment without consent. After careful consideration, we conclude that the officers had insufficient grounds to reasonably believe that Young lived at or would be present at the apartment and, therefore, lacked the necessary level of belief to justify entering the apartment to execute the arrest warrant without consent. Accordingly, we vacate Young’s conviction, reverse the district court’s denial of his motion to suppress, and remand for further proceedings.

I.

We recite the key facts as found by the district court, consistent with the record support, noting where relevant Young’s contrary view of the testimony presented at the suppression hearing. See, e.g., United States v. Werra, 638 F.3d 326, 328 (1st Cir. 2011).

On March 11, 2014, the district court issued an arrest warrant for Young following his indictment for conspiring to distribute and possess with intent to distribute “28 grams or more of a mixture or substance' containing a detectable amount of cocaine base.” That evening, six Lewiston, Maine law-enforcement officers set out in search of Young, traveling to three different residences and making four different stops, before finally locating Young at a fourth location. The search team included Lewiston police officer and United States Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) task force officer Ryan Rawstron (Rawstron), Maine State Police trooper Thomas Pappas (Pappas), who was assigned to the Maine Drug Enforcement Agency (MDEA), Lewiston police officer and MDEA task force officer Tyler Mi-chaud (Michaud), Joey Brown (Brown) from the Lewiston Police Department, Auburn police officer David Madore (Ma-dore), and trooper Kevin Rooney (Rooney) from the Maine State Police Department (collectively, and for simplicity’s sake, we will refer to the task force officers, police officers, and trooper as “officers”).

The officers began their search at the Howe Street residence of Kayla Davidson (Davidson), where the officers had located Young during a prior investigation. Officer Rawstron had also spoken with Davidson “shortly before” that night, and Davidson had informed him during that conversation that she was dating Young. Davidson had further informed officer Rawstron that Young had stayed with her at another apartment on Ash Street. Neither Young nor Davidson was at the Howe Street apartment when the officers arrived. The officers then decided to check the Ash Street apartment, where Young and Davidson had previously stayed with another woman, Stephanie Webster (Webster). Young and Davidson were not at the Ash Street apartment either.

At this point, the officers traveled to the residence of yet another woman, Crystal, who lived on Horton Street. The officers apparently “had information” that Young had, at some point in the past, also been staying with Crystal. Officer Rawstron testified at the suppression hearing that the officers “were familiar with” Crystal and the Horton Street address because they “had [ ] done a controlled buy at that ... address ... fairly shortly before.” When the officers arrived, Crystal was there, with someone she was dating (not Young), but Young was, once again, not present.

Out of ideas, and having failed to locate Young — or Davidson — thus far, the officers circled back to where they had begun their night, Davidson’s Howe Street apartment. This time they ran into Webster, whose Ash Street apartment they had visited earlier in the evening. Webster, in exchange for the officer’s promise to forgo taking her to jail that night on outstanding warrants and instead allow her to turn herself in the following day, told them that if Young was not at her apartment on Ash Street, or Davidson’s apartment on Howe Street, or Crystal’s on Horton Street, then “he had to be back with his former girlfriend” “Jen” on Walnut Street. According to Webster, Young had stayed with “Jen” “on and off, again a couple nights here and there” when he was not with Davidson. Not knowing the address, Webster provided the officers with a description of the building.

Although the officers had no way of knowing that Young was not, in fact, with Davidson as they had failed to locate either of them, the officers then traveled to the Walnut Street apartment building Webster had described. The six officers arrived at approximately 11:00 p.m. Spotting a familiar car parked outside the apartment building, officer Rawstron realized that “Jen” was Jennifer Coleman (Coleman). Officer Rawstron knew Coleman from a prior investigation, and knew that she had previously lived with Young in an apartment on Tampa Street. Based on that prior investigation, officer Michaud also knew that Coleman and Young had an “off-again, on-again” relationship.

Upon their arrival, officers Michaud and Brown positioned themselves at the front of Coleman’s apartment building by a fire escape, while officers Rooney and Madore guarded the back of the building. Meanwhile officers Rawstron and Pappas, both armed and wearing bulletproof vests emblazoned with the word “police,” entered Coleman’s apartment building through a back door and climbed the three flights of stairs to Coleman’s apartment. The landing in front of Coleman’s door was too narrow for both officers Rawstron and Pappas to stand on with their equipment. So, they quickly positioned themselves with Rawstron in the front at Coleman’s door and Pappas behind him, three or four steps down, with his head level with the doorknob. Once in position, officer Raws-tron knocked on Coleman’s apartment door. He heard someone from inside the apartment ask who was at the door, but did not respond as was his usual practice.

Less than a minute later, Coleman’s 22-year-old daughter opened the door. Officer Rawstron asked her where her mother was and began to ask about Young when he noticed Coleman — who had been lying in bed in her room at the opposite end of the hallway — walking down the hallway to the front door. Coleman reached the officers within seconds but, by that time, officer Rawstron had, without consent, stepped into the apartment, and Pappas had moved to stand in the doorway so that he could scan the hallway. Once inside her apartment, officer Rawstron asked Coleman if Young was there. Coleman told officer Rawstron that her kids and Young were present. Officer Rawstron then told Coleman that he needed to speak to Young and, again without asking for consent, he immediately walked by her and down the hallway. Trooper Pappas followed.. Both officers drew their weapons. Officer Raws-tron also carried a flashlight.

As officers Rawstron and Pappas reached Coleman’s bedroom, officer Mi-chaud, who was still guarding the front of Coleman’s apartment building, observed one of Coleman’s front blinds lift up, Young look out the window, and then the blinds close. A few seconds after the blinds went down, Michaud saw flashlights “scan across the window.”

Back inside the apartment, officer Raws-tron had reached Coleman’s bedroom door, pushed aside a curtain that was covering the doorway, and discovered Young kneeling on the bed. Seeing Young on the bed, officer Rawstron immediately pointed his firearm and flashlight at Young and ordered him to show his hands. Officer Pap-pas, who was positioned behind officer Rawstron, also pointed his firearm at Young. Young complied. Officer Rawstron holstered his weapon, grabbed Young’s right arm, and ordered Young to move away from the bed. Young followed officer Rawstron’s orders, and then trooper Pap-pas also holstered his firearm.

Having secured Young, officers Raws-tron and Pappas began to question him. Over the course of the next hour the officers interviewed Young, who ultimately revealed the location of two large bundles of what appeared to be crack cocaine, which were inside a dresser drawer, and a firearm, which had been hidden under the mattress. The officers did not have a warrant, or, at that time, Coleman’s consent to search Coleman’s residence. During the interrogation of Young, officer Michaud “kept watch over” Coleman and her family in the apartment’s kitchen and living area.

The district court found that “[f|rom the time police entered the Coleman apartment, they were in control of it.” In the hour they spent in Coleman’s apartment, neither Rawstron nor Pappas raised their voices, touched Young, or handcuffed him. They also did not advise Young of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 444, 86. S.Ct. 1602, 16 L.Ed.2d 694 (1966). After seizing the drugs and the firearm, officer Rawstron informed Young that he was under arrest, placed him in handcuffs for the first time that evening, and escorted him.out to trooper Rooney’s car. Before escorting Young from the apartment, the officers asked for Coleman’s consent to a dog search, and after removing Young from the apartment, they finally asked her permission to search the apartment. Coleman consented to both searches.

Young subsequently moved to suppress the evidence seized at the time of his arrest, arguing that the officers had illegally entered Coleman’s apartment without consent because they lacked a reasonable belief that Young lived there and that he was present. Young also sought to suppress all statements made on March 11, 2014, and the fruits thereof, on the grounds that those statements were made in violation of Miranda. The government conceded that all but one of Young’s statements were obtained in violation of Miranda. Accordingly, the district court granted Young’s motion to suppress his statements, except as to an initial “spontaneous” statement, which preceded any interrogation and was, therefore, admissible. However, the district court denied Young’s motion to suppress the evidence seized.

Applying Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and its progeny, the district court concluded that “at the time of their entry, the officers harbored a reasonable belief that the defendant resided there.” Specifically, the district court pointed to (1) Webster’s statement that “if [Young] was not at the Ash Street, Howe Street, or Horton Street apartments, he had to be back with his former girlfriend” where he had stayed on and off when he was not with Davidson; (2) Webster’s relative reliability since a “face-to-face informant” should generally be thought of as “more reliable than an anonymous telephone tipster,” quoting United States v. Gay, 240 F.3d 1222, 1227 (10th Cir. 2001); (3) the fact that officer Raws-tron recognized Coleman’s car parked outside her apartment and that officers Raws-tron and Michaud knew that Coleman had previously been in a relationship with Young and that they had lived together; (4) the fact that the officers had “eliminated three other addresses as places where the defendant might be found; and (5) “to cinch matters,” the fact that Coleman confirmed that Young was present. The district court added that officer Michaud seeing Young open the blinds while he stood guard outside Coleman’s apartment “strengthen[ed] the case” that the officers had a reasonable belief that Young resided at Coleman’s apartment, but noted that this fact was “not necessary” to the district court’s conclusion.

In addition, the district court determined that “[t]he time of day that officers knocked on the door ... 11:00 p.m., when people typically are home — coupled with Coleman’s confirmation of the defendant’s presence, sufficed to confer a reasonable belief that [Young] was there.” The district court further concluded that the drugs and firearm seized “need not be excluded simply because [they were] discovered as a result of unwarned questioning in violation of Miranda,” quoting United States v. Jackson, 544 F.3d 351, 361 (1st Cir. 2008), and that the government had met its burden to demonstrate that the search of Coleman’s bedroom and the seizure of the drugs and gun were valid pursuant to Young’s voluntary (if un-Mirandized) statements and that Young “impliedly consented” to the seizures.

As a result, Young conditionally pleaded guilty to conspiracy to distribute at least 28 grams of cocaine base and possession of a firearm in furtherance of a drug-trafficking crime, reserving his right to appeal the district court’s adverse suppression rulings. The district court then sentenced Young to 108 months’ imprisonment on the conspiracy count and a mandatory consecutive 60 months’ imprisonment on the firearm count. This appeal followed.

II.

Here, Young challenges the officers’ initial entry into Coleman’s apartment. He argues that the officers violated his Fourth Amendment rights because they lacked a reasonable belief that he resided at Coleman’s apartment and was present when they entered the residence. Alternatively, Young argues that the search was conducted without voluntary consent, and that no other exception to the warrant requirement applies.

In reviewing the district court’s denial of a motion to suppress, we review its factual findings for clear error and its legal conclusions de novo. United States v. Graham, 553 F.3d 6, 12 (1st Cir. 2009). Young bears the burden to show a Fourth Amendment violation. Werra, 638 F.3d at 330.

We begin with Young’s challenge to the officers’ initial entry into Coleman’s apartment, “understanding that if we find this entry unjustified the evidence discovered subsequent to it must be suppressed.” Graham, 553 F.3d at 12. “The Fourth Amendment provides protection against ‘unreasonable searches and seizures,’ ” and “because ‘the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed[,] .... [i]t is a basic principle of Fourth Amendment-law that searches and seizures inside a home without a warrant are presumptively unreasonable.’ ” El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008) (alterations and omission in original) (quoting Payton, 445 U.S. at 585-86, 100 S.Ct. 1371). In Payton, “the Supreme Court held that police officers attempting to execute an arrest warrant have ‘limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.’ ” Werra, 638 F.3d at 336-37 (quoting Payton, 445 U.S. at 603, 100 S.Ct. 1371). Ensuing case law makes clear that “[e]ven if it becomes known after entry that the residence is not the suspect’s, the entry is justified if the police had ‘reasonably believed’ that (1) the suspect resided 'at the location and (2) the suspect would be present.” United States v. Hamilton, 819 F.3d 503, 506 (1st Cir. 2016) (footnote omitted) (quoting Graham, 553 F.3d at 12). “Conversely, absent exigency or consent, an officer may not search a third-party’s residence on the basis of an arrest warrant without having a search warrant for the premises.” Solis-Alarcon v. United States, 662 F.3d 577, 580 (1st Cir. 2011).

Young asserts that neither the residency nor the presence inquiry was satisfied, arguing that there was insufficient evidence that officers reasonably believed that he lived at Coleman’s apartment or was present, and that the district court erred by considering “information gathered only after the officers crossed the threshold” of Coleman’s apartment to find that the officers had the requisite level of belief necessary to support their entry. In particular, Young challenges the district court’s reliance on Coleman’s post-entry confirmation that Young was present as a basis for concluding that the officers possessed a reasonable belief before they entered the apartment that Young resided there and was present. Young likewise challenges the district court’s conclusion that officer Michaud’s testimony — that he saw Young at the window of Coleman’s apartment — “strengthen[ed] the case” that the officers had the requisite level of belief prior to their entry, arguing that the record evidence establishes that officers Rawstron and Pappas were already inside Coleman’s apartment when Michaud observed Young at the window.

As an initial matter, we agree with Young that, to the extent that the district court relied on post-entry information to “cinch” or “strengthen” its finding that the officers reasonably believed that Young resided at and was present at Coleman’s apartment, the district court erred. See Payton, 445 U.S. at 590, 100 S.Ct. 1371 (noting that “the Fourth Amendment has drawn a firm line at the entrance to the house”); Graham, 553 F.3d at 14 (“What the police discovered after they entered the apartment cannot help us determine what the officers could have reasonably believed before entering the apartment.”). And, in fact, the government does not seem to disagree, conceding that “the officers crossed the ‘firm line’ at the threshold” before being told by Coleman that Young was inside. Rather, the government argues that “the preexisting information” had “already reasonably led the officers to believe Young was staying there and present at the time.”

To determine whether the officers possessed a reasonable belief that Young resided at Coleman’s apartment then, we consider that preexisting information. Discarding all post-entry information, we are left with the following relevant information: (1) Webster’s statement that “if [Young] was not at the Ash Street, Howe Street, or Horton Street apartments, he had to be back with his former girlfriend” where he had stayed on and off when he was not with Davidson; (2) the fact that Webster was not an anonymous tipster; (3) the fact that officer Rawstron recognized Coleman’s car parked outside her apartment and that officers Rawstron and Mi-chaud knew from a prior investigation that Coleman and Young had previously lived together; and (4) the fact that the officers had “eliminated three other addresses as places where the defendant might be found.”

Mindful that we must “examine the information known to the officers in the totality and not in isolation,” Graham, 553 F.3d at 14, we are nevertheless skeptical that these facts and circumstances are sufficient to support the residence inquiry— that the officers reasonably believed that Young resided with Coleman at the Walnut Street apartment before they entered her apartment. Although this case has none of the “rock-solid indicators of residence” present in other cases, see, e.g., Graham, 553 F.3d at 13 (explaining that “certain facts” such as a suspect’s “credit card applications, utility bill, car registration, and mail” being directed to a house “will almost always give rise to a reasonable belief that the subject of an arrest warrant resides at the place entered”), we recognize that such “rock-solid indicators” are not necessarily required. Still, the evidence here is sparse even when compared to other cases where we have found the residency and presence requirements satisfied. See, e.g., id. at 13 (finding police had reasonable belief defendant resided at the apartment because a police report identified defendant and his address, a probationer reported defendant was “staying at” the apartment, and a person outside of the apartment confirmed defendant was inside); United States v. Jones, 523 F.3d 31, 37 (1st Cir. 2008) (finding police’s belief objectively reasonable because hotel manager confirmed defendant rented Room 318 for a three-week period, and a man in the parking lot confirmed defendant was inside Room 318); United States v. Pelletier, 469 F.3d 194, 197, 200-01 (1st Cir. 2006) (finding reasonable belief .when defendant’s girlfriend’s sister confirmed defendant was at a specific motel room, the motel room was registered in her name, and the maintenance man confirmed defen-' dant was in the specific room).

To justify the officers’ entry, the government relies heavily on Webster’s reliability and on her statement that “if [Young] was not at the Ash Street, Howe Street, or Horton Street apartments, he had to be back with his former girlfriend.” But this statement was not sufficiently definitive or reliable to support a reasonable suspicion that Young was living with Coleman. To be sure, in some circumstances a statement by a reliable informant that a suspect is “staying” with or “living” with a particular person might support a reasonable suspicion that the suspect lives there, see, e.g., United States v. Risse, 83 F.3d 212, 216-17 (8th Cir. 1996) (noting that “use of the colloquial term ‘staying with’ ” can be interpreted to mean “living with”), but Webster did not inform officers decisively that Young was “staying” with Coleman. She said only that if Young was not staying at Ash Street, Howe Street, or Horton Street, then he had to be back with Coleman, but she did not actually confirm that Young was not, in fact, staying at those other apartments. Far from definitive, Webster’s statement was closer to a guess than to a reliable tip. And Webster couched the statement even further, qualifying that Young had — at some point— stayed with “Jen” “on and off, again a couple nights here and there” when he was not with Davidson. Importantly, neither the officers nor Webster actually knew that Young was not with Davidson since the officers had failed to locate either of them. For all the officers knew, Young was, indeed, staying with Davidson and they were simply not at home.

Moreover, Webster’s statement did not appear to be based on any actual, present knowledge of Young’s whereabouts. She did not suggest that she had actually seen Young at Coleman’s apartment. Nor did she state conclusively that she knew that Coleman and Young were back together. She merely stated that Young had previously stayed with Coleman and must be back there if the officers could not find him anywhere else, but she never explained why this must be so or gave the basis for this knowledge. And the officers took no steps (e.g., conducting surveillance or other interviews) to verify that Young’s prior relationship with Coleman had continued. The fact that officers Rawstron and Michaud also knew from a prior investigation that Coleman and Young had previously lived together does nothing to get them over this hurdle because their information was similarly dated. And, prior to speaking to Webster, it does not seem that the officers had reason to believe that Young and Coleman’s relationship was ongoing since her apartment was not among those they had thought to visit.

In response to Young’s argument that the officers’ behavior on the evening of March 11 amounted to impermissible canvasing, the government notes correctly that suspects may have more than one residence for purposes of the Payton inquiry. But the officers did not begin then-night knowing that Young would be at one of several apartments where he was known to reside and simply proceed to check each one. To the contrary, the officers thought that Young was with Davidson because of Davidson’s statement to officer Rawstron “shortly before” that night that they were dating, and, prior to Webster’s statement, the officers seemed to have no inkling that Young was living at Coleman’s apartment. Nor did they seem to believe, prior to speaking to Webster, that Coleman’s apartment was one of several places that Young currently lived.

Even assuming that the officers had a reasonable belief that Young resided at Coleman’s apartment, however, there is nothing in this record to support Payton’s presence requirement — that the officers reasonably believed that Young was present when they entered Coleman’s apartment. The district court relied on only one pre-entry piece of information to justify the officer’s entry, that being “[t]he time of day that officers knocked on the door.” Officers arrived at Coleman’s apartment at approximately 11:00 p.m., but the time of day, standing alone, is insufficient to support the conclusion that the officers had a reasonable basis to believe that Young was present at Coleman’s apartment. See Werra, 638 F.3d at 339. As we have previously noted, “in cases where time of day has provided a basis for believing a suspect would be at home, the location of the suspect’s residence was well established— making it more likely that he or she would be there.” Id. at 340 n.19. Here, the officers knew only that Young had previously stayed with Coleman, and that he might be with her if he was not with Davidson at either the Howe Street or Ash Street apartments, and because he was not with Crystal at the Horton Street apartment.

The time of day and the fact that officer Rawstron recognized Coleman’s car in front of her apartment would likely have been sufficient to support a reasonable belief that Coleman was present at the apartment at 11:00 p.m., but those facts do nothing to support the officers belief that Young was there. And, as noted above, the officers did nothing to confirm Young’s presence before entering the apartment “by, for example, conducting surveillance or placing a telephone call to the house.” Id. at 338. Moreover, there is no evidence in the record to even suggest that Young was typically at home at 11:00 p.m., wherever he resided. See id. at 340.

Viewing the information known to the officers in totality, we therefore conclude that the information that was available to them before they entered Coleman’s apartment was insufficient to support a reasonable belief that Young resided there and was present. Accordingly, the officers’ entry into Coleman’s apartment violated Young’s Fourth Amendment rights. Having reached this conclusion, we need go no further as any evidence discovered subsequent to this unlawful entry must be suppressed. See Graham, 553 F.3d at 12. We therefore vacate Young’s conviction, reverse the district court’s denial of his motion to suppress, and remand for further proceedings consistent with this opinion.

LYNCH, Circuit Judge,

Lamar Young was convicted, pursuant to his conditional guilty plea, of drug and weapons charges. That conviction has now been set aside. The police had a warrant for Young’s arrest, and in my view — in accord with the factfinding in the district court — the officers acted reasonably in lo-eating and arresting him. The positions the prosecution chose' to take, and chose not to take, on two different issues lead me to this concurrence.

I agree with the majority that there was insufficient evidence to support a reasonable belief that Young resided at Jennifer Coleman’s apartment. Our analysis takes the form of a two-part Payton inquiry because the government chose that legal theory. See United States v. Hamilton, 819 F.3d 503, 506 (1st Cir. 2016) (articulating the two inquiries). But I am not inclined to think either that this case is about “residence” or that a two-part Payton inquiry ought to apply. Because the Walnut Street property was Coleman’s residence — not Young’s — I consider Young’s Fourth Amendment interests to be far weaker than they would have been at Young’s own residence. See Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (“[T]he extent to which the Fourth Amendment protects people may depend upon where those people are.”); United States v. Battle, 637 F.3d 44, 48 (1st Cir. 2011) (“To prevail on a [Fourth Amendment] claim ... a defendant must show as a threshold matter that he had a legitimate expectation of privacy in the place or item searched.”).

Rather, I consider this case to be about whether the police had a reasonable belief that Young, for whom there was an outstanding arrest warrant, would be located at the premises on Walnut Street. In answering that question, I would employ the standard adopted by our sister court in United States v. Bohannon, 824 F.3d 242 (2d Cir.2016). See id. at 251 (“[I]f, at the time of entry, law enforcement officers possessed a valid warrant for the subject’s arrest and reason to believe that he was then in the premises entered, the subject of the arrest warrant will not be heard to complain that entry was not authorized by a search warrant.”); id. at 258 (“The third-party resident’s Fourth Amendment right in such circumstances to have the entry into his home authorized by a search warrant does not extend to the subject of the arrest warrant.” (citation omitted)). And I would answer that question in the affirmative. Each step of the investigation made the officers’ belief as to Young’s location more and more reasonable. In this regard, I disagree with my colleagues.

I concur, nevertheless, because the prosecution failed to satisfy Payton’s residence inquiry. The prosecution agreed with the defense’s position that Payton’s two-part inquiry applied and so represented to the district court — both to the magistrate judge and to the district judge. And, in my view, the prosecution should be bound by the theory it adopted. I do not fault either that court or ours for adhering to the path agreed upon by both the government and the defendant.

The prosecution also made a second choice that leads me to concur. The inevitable discovery doctrine “allows for the admission of [otherwise excludable] evidence that would have been discovered even without the unconstitutional source.” Utah v. Strieff, — U.S. -, 136 S.Ct. 2056, 2061, 195 L.Ed.2d 400 (2016) (citing Nix v. Williams, 467 U.S. 431, 443-44, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)). The government’s brief makes only a glancing reference to the doctrine of inevitable discovery — and only in service of an argument that Coleman’s consent to the search of her home would have led inevitably to discovery of the seized cocaine and firearm. The government notably did not argue that officer Michaud, standing outside Coleman’s residence, saw Young inside at the window and so knew that Young was present in that apartment. Regardless of whether the officers at Coleman’s apartment door otherwise had a reasonable basis to believe Young was located inside the apartment, officer Michaud’s observation could have justified his own entry — or the entry of a second group of officers from outside the building — and perhaps would have led inevitably to discovery of the disputed evidence. See United States v. Almeida, 434 F.3d 25, 28 (1st Cir. 2006) (observing that the deterrence rationale for the exclusionary rule has minimal force “if the evidence would have been discovered lawfully” (citing Nix, 467 U.S. at 444, 104 S.Ct. 2501)); United States v. Scott, 270 F.3d 30, 43 n.7 (1st Cir. 2001) (“[We have] rejected a strict requirement that the alternate legal avenue of investigation be actively pursued at the time of the illegal search or seizure.”).

Having failed to take advantage of these justifications for its search of Coleman’s residence, the government must now live with-the consequences.

      . The suppression hearing was held before a magistrate judge. Young objected to the magistrate judge's recommended decision, but the district court adopted the magistrate judge’s factual findings and legal conclusions, and denied Young’s motion to suppress. To simplify, we refer to the magistrate judge’s findings and conclusions as those of the district court.

      . This version of events regarding the officer's entry into Coleman's apartment was vigorously contested by Young’s witnesses at the suppression hearing. Coleman's daughter testified, for instance, that when she opened the apartment door an officer pointed a gun in her face and then immediately walked past her without her permission. Similarly, Coleman testified that the officers were already coming down the hallway by the time she started for the door, and that the exchange between them took place halfway down the hallway by the dining room. Moreover, exhibits presented by Young and testimony elicited during the suppression hearing suggest that the officers would not have been able to see Coleman approaching down the hallway from the bedroom without entering the apartment. For example, trooper Pappas testified that "as soon as you reach [the] door that led into the apartment, there was nothing beyond it. You either went to the right or to the left so basically what I was looking at was the wall.” Pappas added that he could only "begin to scan the interior portion of the hallway” when he was "on the threshold of the door” but not before. And, in fact, the government conceded that after talking to officer Raws-tron the prosecutor envisioned that “the hallway [went] directly down from the door” and that when they saw pictures of the entry they were "taken aback” because it was clear that "you can't see the hallway from the threshold” and “you do have to enter the apartment” to see down the hallway. Regardless, the district court supportably found that officer Rawstron had already entered the apartment without consent as Coleman approached the door and that he was already at least some distance. inside her apartment when he began to question her about Young's whereabouts. Because officer Rawstron’s un-consented-to entry is determinative, we need not address in detail the discrepancies between the various versions of events.

      . The district court found that “about the same time” that officers Rawstron and Pap-pas entered Coleman’s apartment building, trooper Michaud “observed one of the front window blinds being lifted, saw [Young] look out, and then saw the blinds close.” But a review of the record seems to offer a slightly more precise timeline. Trooper Michaud testi-Tied at the suppression hearing that it was "a few seconds after the blind went down, [that he] saw some flashlights kind of scan across the window,” and officer Rawstron testified that as he approached Coleman's bedroom he had a flashlight in one hand. Officer Raws-tron also testified that because Young was on the bed in a kneeling position with his' hands under the blankets when he entered the room, he "waved his firearm and flashlight at him and ordered him to show his hands.” Accordingly, it seems that trooper Michaud must have seen Young just before officers Rawstron and Pappas reached Coleman's bedroom door.

      . Upon entering Coleman's bedroom, officers Rawstron and Pappas informed Young that they had a warrant for his arrest for a drug conspiracy. Young responded, "Fuck, that means somebody's talking about me.” The district court concluded that this "statement was not the product of coercive police activity but, rather, a spontaneous, voluntary utterance.”

      . As a threshold matter, the district court concluded that if officers reasonably believe an arrestee subject to a warrant resides at the targeted residence, then Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) applies — not Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981).

      . The parties do not appear to challenge the application of Payton to this case. And the government assumes for the purpose of this appeal that Young established a reasonable expectation of privacy in Coleman's apartment sufficient to justify Fourth Amendment protection. However, the parties do dispute the requisite level of belief that is necessary as to the residency and presence requirements under Payton. Specifically, they dispute whether law enforcement must demonstrate that they had "probable cause” or a "reasonable belief” to believe that Young lived at Coleman’s apartment and was present on the evening of March 11. As we have noted previously, "[ajlthough most circuits to have considered the issue have adopted the ‘reasonable belief standard, and treat it as less stringent than probable cause,” we have never explicitly decided the issue. United States v. Werra, 638 F.3d 326, 337 (1st Cir. 2011) (collecting cases) (noting only that we “have implicitly accepted the majority view”). Here, we need not settle the matter because we conclude that the government cannot meet even the less stringent "reasonable belief” standard.

      . As the concurrence points out, the government conceded that, under Payton, a two-part inquiry applied to this case. Therefore, we do not consider whether the alternative approach adopted by the Second Circuit in United States v. Bohannon, 824 F.3d 242 (2d Cir.2016) is correct.

      . Although the government seems to acknowledge that information gathered post-entry cannot support the entry itself, they nevertheless seek to rely on trooper Michaud’s sighting of Young at Coleman’s bedroom window to satisfy the presence inquiry of Payton — that officers reasonably believed Young was present. But as discussed in detail above, the record reveals that officers Rawstron and Pappas were already inside the apartment and, in fact, only steps away from Coleman's bedroom door when Young looked out the window. As such, this sighting cannot support a finding that the officers possessed the requisite level of belief before their entry into the apartment. And, although the concurrence suggests that officer Michaud's observation of Young at Coleman's window may have somehow justified a subsequent entry into the apartment (even though officer Michaud was part of the search team that violated Young's Fourth Amendment rights), the concurrence cites no cases supporting such a proposition in a case like this one, and we have found none.

      . I also agree that, even assuming the Payton "reasonable belief’ standard is something less than probable cause, the government did not prove even that. See supra at 19 n.6; United States v. Hamilton, 819 F.3d 503, 506 n.5 (1st Cir. 2016) ("We assume without deciding that reasonable belief is a lesser standard than probable cause....”).