United States v. Pence

• Court: Court of Appeals for the Second Circuit
• Decided: April 10, 2026
• Docket: 24-1025
• Status: Published

Opinion

24-1025-cr United States v. Pence UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2025

(Argued: October 29, 2025 Decided: April 10, 2026)

Docket No. 24-1025-cr

UNITED STATES OF AMERICA, Appellee,

v.

CHRISTOPHER PENCE, Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

Before: CABRANES, CHIN, and ROBINSON, Circuit Judges.

Appeal from a judgment of the United States District Court for the

Northern District of New York (Hurd, J.), convicting defendant-appellant of use

of a facility of interstate commerce in connection with murder-for-hire. After an

evidentiary hearing, the district court denied defendant-appellant's motion to

suppress statements he made to law enforcement before being given Miranda warnings. The district court held that the Government established by a

preponderance of the evidence that defendant-appellant was not in custody

when he confessed to taking part in a murder-for-hire scheme. We agree, and

affirm the judgment of the district court.

AFFIRMED.

MICHAEL F. PERRY, Assistant United States Attorney, for John A. Sarcone III, Acting United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee.

SUSAN C. WOLFE, Law Office of Susan C. Wolfe, Riverdale, NY, for Defendant-Appellant.

CHIN, Circuit Judge:

In this case, defendant-appellant Christopher Pence appeals from his

conviction for use of a facility of interstate commerce in connection with murder-

for-hire. Pence contends that the district court (Hurd, J.) erred by denying his

motion to suppress statements he made while being interrogated by law-

enforcement agents before receiving Miranda warnings. The district court held

that a reasonable person in Pence's circumstances would not have believed he

-2- was in custody. For the reasons stated below, we AFFIRM the district court's

decision.

BACKGROUND

I. The Facts

The facts, which are largely undisputed, are drawn from the district

court's findings of fact and evidence and materials in the record, including the

presentence report. On appeal, Pence does not argue that the district court erred

in its factual findings.

A. Events Leading to the Search Warrant

In 2018 Pence and his wife (the "Pences"), the parents of eleven

children, began caring for five children of Francesco and Christina Cordero (the

"Corderos"). The Pences lived in Washington state at the time and the Corderos

in Massachusetts. In December 2019, the Pences adopted the five children, and

the two families had an ongoing relationship so that the Corderos could see their

children from time to time. Both families relocated to Texas, but eventually the

Pences relocated to Utah and the Corderos to Hoosick Falls, New York.

Thereafter, the Pences began limiting contact with the Corderos as their

relationship deteriorated. At some point, the Corderos asked the children if they

-3- wanted to return to live with them. The children reported the conversations to

the Pences, who were upset that the Corderos were trying to get their children

back.

In July 2021, Pence accessed the dark web and began communicating

with a purported hitman. Pence asked for the Corderos, who were living in

Hoosick Falls at the time, to be murdered and for "it to look like an accident."

Presentence Investigation Report at 5. Pence provided the purported hitman

with the Corderos' names, images, and address. Pence eventually transferred

$16,486.06 worth of Bitcoin to the purported hitman in furtherance of the

murder-for-hire scheme.

In September 2021, the FBI learned that an IP address registered to

Pence's Utah home was linked to negotiations for the murder of the Corderos.

The FBI also traced back to Pence the Coinbase account used to transfer the

Bitcoin in the murder-for-hire scheme to the purported hitman. The FBI,

however, was aware that three other adults living in Pence's home could have

had access to the electronic devices used to arrange the hit and make the

cryptocurrency payment. Eventually, a Magistrate Judge signed a search

warrant for Pence's Utah home.

-4- B. The Search

On October 27, 2021, around 6:48 AM, approximately fourteen law-

enforcement agents positioned themselves outside Pence's home to execute the

search warrant. The agents, who had received information that Pence likely had

a firearm at home, possessed a mix of pistols, long guns, shields, and

sledgehammers or other breaching tools. Upon hearing a loud bang, Pence

opened the door and was informed that the agents had a search warrant for his

home. Agents then entered Pence's home with their guns in a low-ready

position. 1 While entering, the agents asked Pence to stand outside his home for

approximately five minutes while securing his house. They later instructed

Pence to call for anyone in the house to come downstairs.

After the agents secured the home, Pence's family was kept in the

living room while he was held in the foyer. An FBI agent asked Pence if he was

"willing to speak with" agents either in the house or in their vehicle outside.

Pence agreed to talk outside in the officer's vehicle and informed the agent that

he first needed to retrieve his shoes from upstairs. Pence was then permitted to

retrieve his shoes, although he was accompanied by agents. Uncuffed and under

1 The "low-ready" position consists of agents having their weapon unholstered and positioned by their side at "a 30- to 45-degree angle." J. App'x at 50-51. -5- his own power, Pence walked outside, approached an FBI vehicle, opened the

door himself, and entered the vehicle. Two FBI agents also entered the vehicle,

where a recording device had already been turned on. 2 There were no other

agents near the vehicle at that time.

Once inside the vehicle, the FBI agents informed Pence that he was

not under arrest and did not have to answer any questions, but they did not give

a Miranda warning at that time. An agent advised Pence:

You are not under arrest, at all. That's not what we're doing. We're just -- we're here to talk. You're under no obligation to talk to us, we -- we would appreciate your help, okay? In -- in just trying to figure out -- 'cause obviously we're here for a reason, right?

J. App'x at 175.

The agents went on to question Pence for an hour and a half on basic

topics in what they described as "rapport-building or small talk." Id. at 35. Once

the small talk finished, the agents shared with Pence evidence they gathered

from investigating the murder-for-hire scheme. After Pence was confronted with

evidence for six minutes, he confessed to the murder-for-hire scheme. The

2 While Pence was inside the FBI vehicle, his wife, parents, and children "went about their day" inside the home. J. App'x at 175. -6- agents never yelled at, threatened, or pointed a firearm at Pence, and he was

never physically restrained while in the FBI vehicle or otherwise.

After this initial confession, Pence spent the next thirty minutes or

more confirming the evidence and explaining why he attempted the murder-for-

hire. Approximately two hours and ten minutes into the questioning, the agents

advised Pence of his Miranda rights. Once advised of his rights, Pence signed a

consent form and continued speaking with the agents. 3

II. Procedural History

On November 9, 2021, a grand jury returned an indictment against

Pence on one count of using a facility of interstate commerce in connection with

murder-for-hire, in violation of 18 U.S.C. § 1958(a). Pence eventually moved to

suppress the statements he made to the agents before he was read his Miranda

rights. On June 8, 2023, in response to Pence's motion, the district court held an

evidentiary hearing. Pence, his wife, both agents who questioned Pence, and one

3 Pence has a bachelor's degree in finance and worked in the "tech industry" for more than twenty-five years, including owning and managing a computer store and working as a "Systems Engineer III" at Microsoft for eight years. See Terry v. LeFevre, 862 F.2d 409, 413 (2d Cir. 1988) (noting that when considering the voluntariness of a confession we consider, inter alia, the defendant's age, background, and intelligence); United States v. Guarno, 819 F.2d 28, 30 (2d Cir. 1987) (same). Pence does not argue, independent of his contention that the officers improperly conducted a custodial interrogation without giving him Miranda warnings, that his confession was involuntary. -7- additional agent testified about the events in question. After the hearing, the

district court directed the parties to submit proposed findings of fact and

conclusions of law, and they did so.

By memorandum-decision and order dated October 18, 2023, the

district court denied Pence's motion to suppress the pre-Miranda statements. The

district court held that although Pence was not given Miranda warnings until

after he confessed to the crime, the Government had shown, by a preponderance

of the evidence, that Pence was not in custody at the time he made his

statements.

After Pence entered a conditional plea of guilty to the one-count

indictment, he was sentenced to seven years' imprisonment followed by three

years of supervised release. This appeal followed.

DISCUSSION

I. Applicable Law

A. Standard of Review

"When reviewing a district court's ruling [denying] a motion to

suppress evidence, we review the court's factual findings for clear error, viewing

the evidence in the light most favorable to the government. The district court's

-8- legal conclusions are reviewed de novo." United States v. Worjloh, 546 F.3d 104, 108

(2d Cir. 2008) (per curiam); accord United States v. Rodriguez, 356 F.3d 254, 257–58

(2d Cir. 2004).

B. Miranda

In light of the Fifth Amendment right against self-incrimination, law

enforcement may not interrogate an individual "taken into custody or otherwise

deprived of his freedom by the authorities in any significant way" without the

warning "that he has the right to remain silent, that anything he says can be used

against him in a court of law, that he has the right to the presence of an attorney,

and that if he cannot afford an attorney one will be appointed for him prior to

any questioning if he so desires." Miranda v. Arizona, 384 U.S. 436, 478–79 (1966).

Absent a Miranda warning and a knowing and intelligent waiver of the rights to

counsel and to remain silent, "no evidence obtained as a result of interrogation

can be used against [a defendant]." Id. Volunteered statements, however, are not

barred and do not require advice of rights. United States v. Rommy, 506 F.3d 108,

132–34 (2d Cir. 2007). For a Miranda warning to be required, the defendant must

be subject to an interrogation, and the interrogation must have occurred while

the defendant was in custody. United States v. FNU LNU, 653 F.3d 144, 148 (2d

-9- Cir. 2011); Rodriguez, 356 F.3d at 259 (2d Cir. 2004) ("We have said that

interrogation, for the purposes of Miranda, must reflect a measure of compulsion

above and beyond that inherent in custody itself." (citation modified)). Here, the

Government does not dispute that Pence was interrogated or that he was not

given a Miranda warning until after he confessed. Thus, the only issue presented

is whether Pence was in custody when he confessed. See FNU LNU, 653 F.3d at

148.

"[A]lthough coercive pressure is Miranda's underlying concern,

custody remains the touchstone for application of its warning requirement."

United States v. Newton, 369 F.3d 659, 671 (2d Cir. 2004). This is because "any

interview of one suspected of a crime by a police officer will have coercive

aspects to it, simply by virtue of the fact that the police officer is part of a law

enforcement system which may ultimately cause the suspect to be charged with a

crime." California v. Beheler, 463 U.S. 1121, 1124 (1983) (citation modified). Law

enforcement need only give Miranda warnings "where there has been such a

restriction on a person's freedom as to render him in custody." Id. (citation

modified).

- 10 - When assessing whether a defendant was in custody absent a formal

arrest, courts consider the totality of the circumstances and inquire "how a

reasonable man in the suspect's position would have understood his situation."

United States v. Faux, 828 F.3d 130, 135 (2d Cir. 2016) (citation modified). This is

"an objective inquiry that asks (1) whether a reasonable person would have

thought he was free to leave the police encounter at issue and (2) whether a

reasonable person would have understood his freedom of action to have been

curtailed to a degree associated with formal arrest." Id. (citation modified). An

individual who understands his "detention is not likely to be temporary and brief

and feels that [he] is completely at the mercy of police could reasonably deem

[his] situation comparable" to formal arrest. Id. (citation modified).

The Supreme Court has emphasized consideration of "all of the

circumstances surrounding the interrogation, including any circumstance that

would have affected how a reasonable person in the suspect's position would

perceive his or her freedom to leave." J.D.B. v. North Carolina, 564 U.S. 261, 270–

71 (2011) (citation modified). As a guidepost, however, this Circuit typically

begins by considering the following circumstances:

(1) the interrogation's duration; (2) its location (e.g., at the suspect's home, in public, in a police station, or at the border); (3) whether the

- 11 - suspect volunteered for the interview; (4) whether the officers used restraints; (5) whether weapons were present and especially whether they were drawn; and (6) whether officers told the suspect he was free to leave or under suspicion.

Faux, 828 F.3d at 135 (citation modified).

II. Application

Pence argues that he was in custody at the time of his pre-Miranda

statements to the FBI agents. 4 We disagree.

As the district court found, a reasonable person in Pence's

circumstances would not have believed he was under formal arrest, not free to

leave, or at the mercy of the agents. Pence entered the FBI vehicle where the

interrogation took place under his own will. This was outside of his home, as his

wife, parents, and children went about their day. He agreed to speak with the

agents. He was never handcuffed. The agents never pointed their firearms at

Pence, and their firearms were holstered during the questioning. The agents

never yelled at or threatened him. Pence was told that he was not under arrest

4 Pence also argues that, in the alternative, this Court should "retire[]" the reasonable- man standard used in Miranda challenges or remand for human-behavior experts to perform the court’s burden of assessing and applying the standard. Appellant's Reply Br. at 1-2; see also Appellant's Br. at 26–28. We reject these arguments because we cannot "retire[]" Miranda, and because the question of whether an individual is in custody is a legal one. - 12 - and did not have to speak with the agents. And he never asked to leave or for

the questioning to stop.

We held in Faux that a two-hour interrogation in the defendant's

dining room, after ten to fifteen agents raided her home, did not amount to

custody. 828 F.3d at 132 n.2, 138–39. In doing so, we noted that the defendant

was not handcuffed, she was told twenty minutes into the interview that she was

not under arrest, the agents did not display their weapons, threaten her, or use

physical force, and she did not attempt to end the encounter. Id. Many of the

same circumstances existed here.

Pence argues that, once the interrogation began, a reasonable person

would not have felt free to leave considering that he was in an FBI vehicle,

outnumbered two to one, and questioned for more than an hour and a half.

While the interrogation here, unlike in Faux, was not in Pence's home but rather

an FBI vehicle outside the home, that is not enough by itself to establish custody,

especially given that Pence was given a choice about whether to speak with the

agents at all, and whether to do so in his home or in the FBI vehicle outside. Cf.

United States v. Burke, 700 F.2d 70, 83–84 (2d Cir. 1983) (finding no custody where

defendant voluntarily spoke with agents in an FBI car outside his family home);

- 13 - see also United States v. Schaffer, 851 F.3d 166, 174–76 (2d Cir. 2017) (finding no

custody where defendant was questioned in an area adjacent to his office while

agents searched his office).

Pence also argues that, at the least, his circumstances are unlike

those in Faux, and cases like it, because the agents confronted him with evidence

of his guilt. Our case law establishes that this factor deserves some weight. See,

e.g., United States v. Hall, 421 F.2d 540, 545 (2d Cir. 1969) (Friendly, J.) ("The more

cause for believing the suspect committed the crime, the greater the tendency to

bear down in interrogation and to create the kind of atmosphere of significant

restraint that triggers Miranda"); accord, e.g., United States v. Hall, 459 F.2d 454 (2d

Cir. 1972) (per curiam). 5

5 Other circuits have likewise recognized this as a potentially important factor in assessing whether an interrogation has occurred in a custodial setting. See, e.g., United States v. Barnes, 713 F.3d 1200, 1204 (9th Cir. 2013) (listing "the extent to which the defendant is confronted with evidence of guilt" as a pertinent factor in assessing whether an interrogation is custodial); United States v. Panak, 552 F.3d 462, 469 (6th Cir. 2009) (investigator's knowledge of an individual's guilt is relevant if it is manifested to the individual under interrogation and "would have affected how a reasonable person . . . would perceive his or her freedom to leave") (quoting Stansbury v. California, 511 U.S. 318, 325 (1994)); United States v. Revels, 510 F.3d 1269, 1275 (10th Cir. 2007) (listing as one of three relevant factors "whether the nature and length of the officers' questioning was accusatory or coercive"); United States v. Carter, 884 F.2d 368, 372 (8th Cir. 1989) (concluding that the fact that the defendant was "confronted with damning evidence of guilt" supported the district court’s conclusion that he was in custody). - 14 - But this "is simply one circumstance, to be weighed with all the

others." Hall, 421 F.2d at 545. 6 Here, it does not tip the scale in Pence's favor.

Though the officers confronted Pence with potentially incriminating evidence,

they did not threaten to arrest him; rather, they emphasized that the focus of

their efforts was finding the "people pulling the trigger . . . the big fish. " Dist. Ct.

Dkt. 21-6 at 117. In other words, while Pence was "under considerable

suspicion," the agents "sedulously abstain[ed] from any threat that they would"

arrest him. Hall, 421 F.2d at 545–46. None of this should be "significantly colored

by what developed later," that is, Pence's confession and arrest. See id. at 545.

To be sure, there are circumstances here that support Pence's

contention that he was in custody. Pence opened the door of his home to find

fourteen law-enforcement agents armed with a mix of equipment and weapons

in what he describes as feeling like "Armageddon" at his front door. J. App'x at

143, 178. He was questioned for more than two hours before the agents gave him

a Miranda warning. While the agents were executing their warrant in the house,

6See also United States v. Jabar, 19 F.4th 66, 74, 83-84 (2d Cir. 2021) (finding no custody in IRS investigation where defendant confessed after agent confronted him with records of certain transactions); United States v. Badmus, 325 F.3d 133, 135-36, 138-39 (2d Cir. 2003) (finding no custody where agents confronted defendant with evidence of crime found during search).

- 15 - before Pence agreed to speak with them outside, he was accompanied by agents

as he moved about his house and, at one point, was stopped from going up his

stairs. And he was confronted with evidence of his guilt while inside an FBI

vehicle. But the district court considered these circumstances together with the

evidence discussed above that Pence spoke freely and voluntarily, and

concluded, in the totality of circumstances, that a reasonable person would not

believe he was at the mercy of the agents, or that his freedom was curtailed to a

degree akin to formal arrest. See Faux, 828 F.3d at 139. While this case presents a

close call, on the facts accepted by the district court and viewing the evidence in

the light most favorable to the government, see Worjloh, 546 F.3d at 108, we are

persuaded that Pence was not in "custody" for purposes of Miranda. As the

district court emphasized, the agents said to Pence, explicitly, "[y]ou are not

under arrest, at all . . . . You're under no obligation to talk to us . . . ." J. App'x at

175.

CONCLUSION

For the reasons discussed above, the district court's decision is

- 16 -