U.S. v. Lebrun

• Decision Date: 09 April 2004
• Docket Number: No. 01-4005.,01-4005.
• Citation: 363 F.3d 715
• Parties: UNITED STATES of America, Appellant, v. Michael Edward LEBRUN, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

363 F.3d 715

UNITED STATES of America, Appellant, v. Michael Edward LEBRUN, Appellee.

No. 01-4005.

United States Court of Appeals, Eighth Circuit.

Submitted: April 16, 2003.

Filed: April 9, 2004.

COPYRIGHT MATERIAL OMITTED

Counsel who presented argument on behalf of the appellant was Matt Jeffrey Whitworth, Deputy United States Attorney for the Western District of Missouri.

Counsel who presented argument on behalf of the appellee was Glenn E. Bradford of Kansas City, MO. Also appearing on appellee's brief was Edward F. Walsh of Kansas City, MO.

Before LOKEN, Chief Judge, McMILLIAN, BOWMAN, WOLLMAN, HANSEN, MORRIS SHEPPARD ARNOLD, MURPHY, BYE, RILEY, MELLOY, and SMITH, Circuit Judges.

HANSEN, Circuit Judge.

After thirty-three minutes of questioning, Michael LeBrun confessed to naval investigators that in 1968, while he was enlisted in the United States Navy, he strangled to death his superior officer, Ensign Andrew Muns, on board the U.S.S. Cacapon after Ensign Muns caught LeBrun robbing the safe in the ship's disbursing office. The district court suppressed the confession on the ground that it was obtained in violation of LeBrun's Fifth Amendment privilege against self-incrimination as construed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and on the ground that it was coerced, and thus obtained in violation of LeBrun's due process rights. The government appealed, and a divided panel of this court affirmed the judgment of the district court. See United States v. LeBrun, 306 F.3d 545 (2002). We granted the government's petition for rehearing en banc, vacated the panel opinion, and for the reasons stated below, now reverse the judgment of the district court.

I.

Muns and LeBrun served as shipmates during the Vietnam War aboard the U.S.S. Cacapon. Ensign Muns served as the disbursing officer, and LeBrun served as the disbursing clerk. On January 16 or 17, 1968, while the U.S.S. Cacapon was moored in the Subic Bay, Muns disappeared. After conducting an investigation into Muns' disappearance, the Navy concluded that Muns had stolen $8600 from the disbursing office and had deserted. Thirty years later, still unconvinced of her brother's wrong-doing, Muns' sister convinced Special Agent Peter Hughes of the Naval Criminal Investigative Service ("NCIS") Cold Case Homicide Unit to reopen the investigation.

In the fall of 1999, NCIS agents conducted four interviews with LeBrun. On each of these four occasions, LeBrun cooperated with the investigators and voluntarily answered questions regarding Muns' disappearance. On three of these occasions he was given his Miranda warnings by the interviewers. During an interview conducted on November 20, 1999, LeBrun told NCIS agents that he realized that he may have been involved in the death and disappearance of Ensign Muns. LeBrun also told the agents that he felt that he had repressed memories, and he asked Agent Hughes if he knew of a therapist who could help LeBrun recover those memories. After completing the first round of interviews, the NCIS agents did not have any further significant contact with LeBrun for approximately ten months as they continued to investigate other leads. By September of 2000, however, the NCIS had focused on LeBrun as the lead suspect in the case. At that time, NCIS agents decided to interview LeBrun again.

On September 21, 2000, NCIS Special Agent Early and Corporal Hunter of the Missouri Highway Patrol arrived unexpectedly at LeBrun's place of employment. Hunter told LeBrun that he and Early were conducting an investigation and requested that LeBrun accompany them to the Missouri Highway Patrol office to participate in an interview. Although the officers did not tell LeBrun the subject of their investigation, LeBrun agreed to accompany the officers because he thought that the officers might be investigating certain criminal allegations concerning LeBrun's employer. At the officers' suggestion, LeBrun rode in the front seat of an unmarked patrol car to the station house. The door was unlocked during the trip, and LeBrun was not restrained in any manner.

After they arrived at the patrol office, but before they went inside, Agent Early told LeBrun that he was not under arrest, that he was free to terminate the impending interview at any time, and that he was free to leave at any time. He was also told that he was subject to audio and visual recording anywhere inside the building. The officers then took LeBrun inside the office to a windowless interview room. The authorities had prepared the room prior to LeBrun's arrival, adorning the interview room walls with enlarged photographs of scenes from LeBrun's life. After LeBrun took a seat, NCIS Agents Early and Grebas identified themselves and initiated the interview. At no point immediately prior to or during the September 21, 2000, interview did the agents recite to LeBrun the Miranda warnings. The district court found that the decision not to warn was a conscious one made by the interviewers. Special Agent Early testified that no warning was thought necessary because it was not an under arrest custodial situation.

Despite the agents' failure to recite the Miranda warnings, LeBrun testified at the suppression hearing that at the time of the interview he understood what his Miranda rights were. LeBrun also testified that at the time the interview commenced he believed that he was not in custody and that he was free to leave at any time. The government concedes that the officers used psychological ploys during the course of the interview to facilitate a confession. For example, the agents told LeBrun that he was the prime suspect in Muns' death and that they had significant evidence establishing that LeBrun was the killer. The agents also told LeBrun that a protracted trial in a distant district would drain his financial resources and would ruin his family's reputation. At no point, however, did the agents shout at LeBrun or use physical force against him. After approximately thirty-three minutes of questioning, LeBrun confessed to the crime. LeBrun explained that while he was robbing the safe, Ensign Muns walked into the disbursing office. He confessed that he rushed Muns and killed him by strangling him and then smashing his head against the deck of the disbursing office. At the agents' urging, LeBrun then physically reenacted the robbery and attack. He also explained how he had dumped Muns' body and the missing money into a tank of caustic fuel oil to dispose of the evidence.

After LeBrun confessed to the killing, Agents Early and Grebas asked whether he wanted to apologize to Muns' sister, Mary Lou Taylor, who had flown in from Milwaukee to assist in the interrogation if it became necessary. He indicated that he did. Dr. Taylor, accompanied by Agent Billington, who was posing as Muns' brother and whom the agents had told LeBrun was stricken with cancer, then entered the interview room. LeBrun acknowledged to Taylor and Billington that he was responsible for Muns' death, and he apologized. After the agents had completed their questioning, LeBrun consented to having his house searched. LeBrun then withdrew a cellular telephone from his pocket and called his spouse. The agents drove LeBrun to his house and searched it. After conducting their search, the officers left LeBrun at home. They did not arrest him that day.

LeBrun was arrested at a later date and charged with felony murder in violation of 18 U.S.C. § 1111. He moved to suppress his confession, arguing that it was obtained in violation of Miranda v. Arizona and in violation of his due process rights. The district court agreed with LeBrun, concluding that he was "in custody" within the meaning of Miranda or, in the alternative, that his confession was coerced. The district court granted the motion to suppress, the government appeals, and we reverse the judgment of the district court.

II.

A.

Before turning to the merits of the district court's "in custody" determination, we must first resolve an intracircuit split concerning the standard of review we apply to such a determination. In Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995), the Supreme Court held that federal habeas courts should review de novo state courts' "in custody" determinations. It seems clear to us that Thompson's rationale requires that on direct appeal we review the district court's custody determination de novo. See id. at 112-13, 116 S.Ct. 457 (stating that the ultimate "in custody" determination is a mixed question of fact and law calling for independent review). After Thompson, however, we have reviewed district court custody determinations de novo in some cases and for clear error in others. Compare United States v. Axsom, 289 F.3d 496, 500 (8th Cir.2002) (applying de novo review), with United States v. Hanson, 237 F.3d 961, 963 (8th Cir.2001) (applying clear error standard of review); see also United States v. McKinney, 88 F.3d 551, 554 n. 2 (8th Cir.1996) (applying clear error standard of review but noting that it may be reconsidered in light of Thompson). As Judge Riley explained in Axsom, post-Thompson, our sister circuits have reviewed de novo the "in custody" determination. See Axsom, 289 F.3d at 499-500 (compiling cases). We are of the view that this is the better approach. Accordingly, we hold that "in reviewing `in custody' determinations, we uphold findings of historical fact unless clearly erroneous, but we apply the controlling legal standard to the historical facts utilizing an independent review." Id. at 500. Our cases to the contrary are overruled.

B.

The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. Under traditional understandings, courts enforced the Fifth Amendment privilege by requiring the government to establish the voluntariness of a confession before it could be admitted into evidence...