U.S. v. Wolf

• Decision Date: 26 March 1987
• Docket Number: No. 86-5186,86-5186
• Citation: 813 F.2d 970
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George Paul WOLF, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 970

813 F.2d 970

UNITED STATES of America, Plaintiff-Appellee, v. George Paul WOLF, III, Defendant-Appellant.

No. 86-5186.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 6, 1987.

Decided March 26, 1987.

Peter K. Nunez, Bruce R. Catetter, and Edward P. Allard, III, San Diego, Cal., for plaintiff-appellee.

Barry D. Utsinger, San Diego, Cal., for defendant-appellant.

Appeal from the United States District Court for the Southern District of California.

Before PREGERSON and NORRIS, Circuit Judges, and BURNS, ^* District Judge.

NORRIS, Circuit Judge:

George Paul Wolf III drove a stolen van from Coronado, California, to Ensenada, Mexico, where he was arrested by Mexican authorities. He was convicted of violating both 18 U.S.C. Sec. 2312 ¹ for transporting in foreign commerce a motor vehicle known to be stolen and 18 U.S.C. Sec. 2313 ² for possessing a stolen vehicle which had crossed a United States boundary. The district court imposed a five-year sentence for the transportation offense and a separate sentence of five years' probation for the possession Wolf raises three arguments on appeal: (1) the admission into evidence of a confession made to Mexican authorities violated the due process and self-incrimination clauses of the Fifth Amendment because it was the product of coercion; (2) the prosecutor knowingly relied on perjured testimony in violation of the due process clause; and (3) the imposition of separate sentences for transporting in foreign commerce and possessing the same motor vehicle violated the double jeopardy clause of the Fifth Amendment.

offense, the sentences to run consecutively.

I THE INVOLUNTARY CONFESSION ISSUE

On September 20, 1985, Wolf was stopped while in possession of a stolen van in Ensenada, Mexico, by an officer of the Mexican Federal Highway Patrol. Commandante Raul Vasquez-Miranda (Vasquez) was summoned to question Wolf about his activities. Wolf explained to Vasquez that his friend Johnson had loaned him the van and that he was going to Ensenada to see a friend named Chico. When Wolf could not provide Johnson's address, Vasquez decided to take Wolf to Vasquez' office for further questioning. Vasquez consulted the California Highway Patrol and learned that the van had been reported stolen. Armed with this knowledge, Vasquez confronted Wolf, accused him of lying, and demanded that he tell Vasquez the truth. Wolf then confessed that he had stolen the van three days earlier and that he was driving to Ensenada to deliver the van to Chico.

Wolf contends on appeal that the government's use of his confession as evidence during the trial violated his due process rights because his confession was coerced. ³ The crux of Wolf's coercion argument is that Vasquez threatened him with physical violence unless he confessed. ⁴ It is undisputed that, during the questioning, Vasquez told Wolf to "[t]ell me the truth and Wolf cites the following testimony as proof that he was verbally threatened by Vasquez during interrogation: ⁵

                maybe I'll help you."    Reporter's Transcript of Jury Trial ("R.T.") at 48.  Wolf argues that the kind of "help" Vasquez promised was to protect him from being beaten, either by Vasquez himself or by other Mexican officers
                

CROSS-EXAMINATION OF VASQUEZ BY WOLF

Q. And you say that if I would talk to you, you could help me; is that correct?

A. Yes.

Q. Now, could you elaborate on that a little bit? Could you tell the Court what it was that you said to me to get me to talk? Did you say you would let me go if I would talk and avoid hitting me like that?

A. It is true, that's what I told you.

Q. Very well. I argue that the statement was involuntary and was based upon violated plea bargaining. He has admitted it right in court. ⁶

* * *

* * *

REDIRECT EXAMINATION OF VASQUEZ BY GOVERNMENT COUNSEL

Q. Commander Vasquez, did you ever threaten to hit the defendant if he didn't talk to you?

A. No.

Q. What did you promise him if he told you the truth, if anything?

A. To help him in the report, with the purpose of other authorities would not beat him. That's all I promised him. I could not release him. I could not release him. The vehicle had already been reported stolen. I had to comply. ⁷

* * *

* * *

RECROSS OF VASQUEZ BY WOLF

Q. Now, you say that if I told the truth, I would not be beaten by other policeman, the state judicial police force, specifically?

A. Maybe.

....

Q. [I]s it or is it not true that you asked me if I would just tell you who I am selling the vehicles to, you would let me go?

A. No, not release you, but I was going to help you, but I never said what kind of help. ⁸

Wolf contends that this colloquy proves that when Vasquez offered to "help" Wolf if he talked, Vasquez meant that he would protect Wolf from being beaten by Mexican police.

Wolf also argues that other circumstances surrounding his confession support his claim of coercion. First, he maintains that even subtle threats by Mexican officers justifiably evoke great fear due to frequently published accounts of torture of American prisoners by Mexican authorities. Second, he points out that he was isolated from his family and friends and was not informed of any right against self-incrimination or any right to consult an attorney. ⁹ Third, he notes that he initially refused to talk and his confession immediately followed the alleged threats. Finally, he points out that his confession was in fact not entirely accurate ¹⁰ and argues that the inaccuracy suggests that he did not confess out of a desire to "come clean" but rather that he was coerced into giving some sort of inculpatory statement to avoid being beaten.

The government takes issue with Wolf's characterization of Vasquez' testimony, contending that when Vasquez' statements are viewed in context, it is unreasonable to Due process does not bar the use of a confession as evidence unless government officials employed coercive interrogation tactics which rendered the defendant's confession "involuntary" as a matter of law. In Colorado v. Connelly, --- U.S. ----, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), the Court explained that "while mental condition is surely relevant to an individual's susceptibility to police coercion, mere examination of the confessant's state of mind can never conclude the due process inquiry." Id. at 521. Rather,

                interpret his vague promise of "help" as implying that he would protect Wolf from being beaten if Wolf talked.  The government suggests rather that Vasquez simply promised Wolf "[t]o help him in the report." 11   While admittedly Vasquez testified at the suppression hearing that his purpose in offering Wolf help was to make sure "other authorities would not beat him," 12 the government contends that Vasquez never communicated this purpose to Wolf during the interrogation.  Rather, Vasquez' purpose in helping Wolf was disclosed solely to the judge presiding over the suppression hearing.  In support of this interpretation of the transcript, the government emphasizes that Vasquez clearly testified that during the interrogation he "never said what kind of help" he would provide Wolf. 13   The government suggests that any other ambiguous statements supporting an inference that Vasquez threatened Wolf were the product of language difficulties (Vasquez' examination was conducted through a Spanish interpreter) and Wolf's use of compound and leading questions during cross-examination.  Finally, the government also points out that Wolf told FBI agent Ryan three weeks later "he was treated by [the Mexican highway patrol] fairly" and that Wolf did not complain to Ryan of being beaten or threatened. 14
                

[w]hile each confession case has turned on its own set of factors justifying the conclusion that police conduct was oppressive, all have contained a substantial element of coercive police conduct. Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.

Id. at 520; see also Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 453, 88 L.Ed.2d 405 (1985) ("the admissibility of a confession turns as much on whether the techniques for extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means[,] as on whether the defendant's will was in fact overborne").

In determining whether the tactics used by the Mexican police were coercive to the point of violating Wolf's due process rights, we review the district court's factual account of what happened during Wolf's interrogation under the clearly erroneous test. See United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). We review de novo the court's conclusion that the confession was voluntary because Connelly 's focus on the constitutional acceptability of the government conduct rather than merely on the defendant's state of mind at the time of the confession "requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles...." Id. at 1202; see also Crane v. Kentucky, --- U.S. ----, 106 S.Ct. 2142, 2145, 90 L.Ed.2d 636 (1986) ("manner in which a statement was extracted is, of course, relevant to the purely legal question of its voluntariness"); Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 450, 88 L.Ed.2d 405 (1985) (in a habeas corpus proceeding the federal court need not defer to a state court's finding that a confession was voluntary because "the ultimate issue of 'voluntariness' is a legal question requiring independent After hearing and assessing the credibility of the witnesses testifying at the suppression hearing, the district court denied Wolf's motion to suppress his confession to Vasquez. The court declared that:

federal determination" and not a question of...