Charles Familetti appeals from the judgment of the United States District Court for the Southern District of New York, sentencing him to 15 years in prison for attempted sex trafficking of a minor and the possession, distribution, and transportation of child pornography. Familetti challenges his conviction on grounds that he was in custody and that the police elicited his offer to cooperate in the investigation as the opening gambit in a two-step evasion of the Miranda rule forbidden by Missouri v. Seibert, 542 U.S. 600 (2004). We conclude that the circumstances and phrasing of the pre-warning request for cooperation would have constituted an interrogation under Rhode Island v. Innis, 446 U.S. 291 (1980), if Familetti had been in custody, but that under circuit law, he was not. Affirmed.*2
DENNIS JACOBS, C.J.Charles Familetti, a former financial executive at HSBC Holdings plc, was a target of an undercover investigation into child pornography and sex crimes on the internet. An FBI sting operation culminated in a lawful search of the appellant’s apartment during which (Familetti contends) statements were elicited in violation of the Fifth Amendment. Familetti challenges his conviction on grounds that he was in custody and that the police elicited his offer to cooperate in the investigation as the opening gambit in a two-step evasion of the Miranda rule forbidden by Missouri v. Seibert, 542 U.S. 600 (2004). We conclude that the circumstances and phrasing of the pre-warning request for cooperation would have constituted an interrogation under Rhode Island v. Innis, 446 U.S. 291 (1980), if Familetti had been in custody, but that under Circuit law, he was not. Because Familetti was not in custody when the FBI conducted a pre-warning interrogation, we affirm the conviction.BACKGROUNDIFamiletti participated in chat sessions, using a pseudonym, on an online service called GigaTribe. In June 2013, Special Agent Thomas Thompson engaged Familetti in a chat during which Familetti sent child pornography videos to Thompson and expressed interest in a sexual experience with a minor. Thompson offered to arrange an encounter with an eleven-year-old. Special