Christopher Pence, a Utah father of 16 children, was convicted of using a facility of interstate commerce in connection with murder-for-hire after he paid $16,486.06 in Bitcoin to a purported hitman on the dark web to kill Francesco and Christina Cordero. The Corderos were the biological parents of five children that Pence and his wife had adopted in December 2019, and tensions arose when the Corderos began asking the children if they wanted to return to live with them. Pence asked for the murders 'to look like an accident,' according to the presentence investigation report.
The Second Circuit held that Pence was not in custody when he confessed to the murder-for-hire scheme during a two-hour FBI interrogation in October 2021. As Judge Chin wrote for the unanimous panel, '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.' The court emphasized that Pence 'entered the FBI vehicle where the interrogation took place under his own will' and 'was told that he was not under arrest and did not have to speak with the agents.'
The court rejected Pence's arguments despite acknowledging that he faced what felt like 'Armageddon' when 14 heavily armed FBI agents executed a search warrant at his home at 6:48 AM. As Judge Chin noted, '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.' However, the court concluded that these intimidating circumstances were outweighed by other factors showing Pence spoke voluntarily.
The case began when the FBI learned in September 2021 that an IP address registered to Pence's Utah home was linked to negotiations for the Corderos' murder. U.S. District Judge Glenn Hurd had denied Pence's motion to suppress after an evidentiary hearing in June 2023, finding that the government had proven by a preponderance of evidence that Pence was not in custody during the interrogation. Pence entered a conditional guilty plea preserving his right to appeal the suppression ruling and was sentenced to seven years in prison followed by three years of supervised release.
Pence's attorneys argued that a reasonable person would not have felt free to leave considering he was outnumbered two-to-one in an FBI vehicle and questioned for more than 90 minutes before agents confronted him with evidence of his guilt. The court acknowledged that being 'confronted with evidence of guilt' deserved 'some weight' in the custody analysis, citing precedent that 'the more cause for believing the suspect committed the crime, the greater the tendency to bear down in interrogation.' However, Judge Chin wrote that this factor 'does not tip the scale in Pence's favor' because agents emphasized they were seeking 'the big fish' and 'sedulously abstain[ed] from any threat that they would arrest him.'
The Second Circuit's decision builds on its 2016 ruling in United States v. Faux, where it held that a two-hour interrogation in a defendant's dining room after 10-15 agents raided her home did not constitute custody. Judge Chin distinguished Pence's case, noting that while the interrogation occurred in an FBI vehicle rather than Pence's 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.' The court emphasized that custody determinations require analyzing the totality of circumstances through the lens of how 'a reasonable man in the suspect's position would have understood his situation.'
The ruling reinforces the high bar for establishing custodial interrogation requiring Miranda warnings, even in cases involving dramatic law enforcement tactics. While acknowledging the case presented 'a close call,' the Second Circuit emphasized that courts must not be 'significantly colored by what developed later'—meaning Pence's eventual confession and arrest cannot retroactively transform a non-custodial interrogation into a custodial one. The decision provides guidance for practitioners on how courts weigh factors like the number of agents, display of weapons, and confrontation with evidence in the Miranda custody analysis.