U.S. v. Antoon

Citation933 F.2d 200
Decision Date05 June 1991
Docket NumberNo. 90-3739,90-3739
PartiesUNITED STATES of America, Appellant, v. Michael S. ANTOON; John A. Bettor; Xavier W. Folino d/b/a Fairview Pharmacy.
CourtU.S. Court of Appeals — Third Circuit

Paul J. Brysh, Bonnie R. Schlueter (argued), Office of U.S. Atty., Pittsburgh, Pa., for appellant.

William P. Weichler (argued), Ambrose & Friedman, Erie, Pa., for appellee Michael S. Antoon.

Before STAPLETON, COWEN and ROSENN, Circuit Judges.

OPINION OF THE COURT

COWEN, Circuit Judge.

This appeal concerns the admissibility in a criminal trial of statements and conversations recorded by a witness wearing a concealed body recorder. The central issue is whether the witness' cooperation was voluntary or coerced. The district court excluded the evidence because it found that the witness' free will was overborne by his fear that he would be indicted as a co-conspirator if he refused to cooperate. Because we hold the district court clearly erred in concluding that the witness' consent was involuntary under the circumstances, we will reverse.

I.

Defendant Michael S. Antoon, M.D. and Donald Millar have been friends for more than ten years. They became acquainted through Millar's work as a paramedic servicing the Erie, Pennsylvania hospital where Antoon works as an emergency room physician. Over the years, they have become close social companions.

In 1988, the Federal Bureau of Investigation ("FBI"), the Drug Enforcement Agency ("DEA"), and the Pennsylvania State Police launched a narcotics investigation of Antoon. They suspected that he was issuing phony prescriptions to obtain drugs to distribute illegally. On March 1, 1989, the three agencies executed a search warrant at Antoon's residence. Pursuant to the warrant, the agencies seized medical records, including copies of prescriptions, financial records, and various other documents from Antoon's home. Some of the prescriptions seized were written by Antoon to Millar for controlled substances.

Acting on this lead, Trooper Charles Lewis of the Pennsylvania State Police contacted Millar on May 2, 1989. Lewis telephoned Millar, told him he wanted to talk about Antoon, and arranged to interview Millar at his home later that day. At the meeting, which lasted approximately one hour, Lewis confronted Millar with copies of the prescriptions seized from Antoon's residence written in Millar's name. Lewis opined that the prescriptions were not issued for valid medical reasons and asked Millar if he had been aware of the improper purpose at the time. Millar admitted that he had been. He then confessed that he returned the pills to Antoon after filling the prescriptions.

Frightened by his conversation with Lewis, and aware that he potentially faced criminal charges for his involvement, Millar tried unsuccessfully to contact Antoon from May 2nd to May 11th. During that interval, Millar met with Lewis and other agents several times. At those meetings, Lewis and others suggested that Millar help the government. They asked Millar to wear a body recorder to record incriminating conversations with Antoon. They reminded Millar that he could be indicted as a co-conspirator and told him that he would not be indicted if he wore the body recorder. They also reminded Millar that he could lose his job if he became implicated in a criminal matter. Millar, however, testified that no one told him he would be charged with a crime or lose his job if he refused to wear the wire. 1 Although Millar initially refused to help, he claimed that his resolve eroded when he was unable to contact Antoon. On May 11, 1989, Millar agreed to wear the body recorder and signed a consent to that effect. 2

After obtaining Millar's signed consent in which he acknowledged that his consent was voluntarily given, the agents fitted a Nagra body recorder on Millar. Later that day, Millar met with Antoon and recorded an incriminating conversation in which Antoon vaguely acknowledged that Millar would return to Antoon the drugs Antoon ostensibly prescribed for Millar. Millar subsequently attempted to arrange other conversations, but was unsuccessful.

On February 16, 1990, a federal grand jury indicted Antoon on various drug charges. The thrust of the indictment is that Antoon conspired to issue phony prescriptions in order to obtain and distribute controlled substances. 3 Millar was not indicted as a co-conspirator.

On April 24, 1990, Antoon filed a motion to suppress the conversations Millar recorded on May 11, 1989. Antoon contended that Millar had not cooperated with law enforcement officials voluntarily. At a pretrial hearing, Millar testified about the circumstances under which he consented to wear the body recorder. Based on Millar's testimony, the district court concluded that Millar's consent was involuntary, and ordered that the incriminating conversation was inadmissible. This appeal by the government followed. We have jurisdiction pursuant to 18 U.S.C. Sec. 3731.

II.

Under federal law, it is illegal to use the contents of an electronically recorded conversation, unless a party to that conversation consents. Specifically, 18 U.S.C. Sec. 2511(1)(d) makes it illegal to use the contents of any wire, oral, or electronic communication where the information was obtained through an interception in violation of section 2511(1). 4 Under 18 U.S.C. Sec. 2511(2)(c), it is not unlawful for a person acting under color of law to intercept a communication, where a party to that communication has given prior consent. 5 Because of section 2511(1)(d), the United States cannot use intercepted communications in a criminal prosecution unless a party to the communication first consented to the interception pursuant to section 2511(2)(c). In the case at bar, the United States cannot use the conversation Millar recorded against Antoon unless Millar gave prior consent to record it.

Although the right at stake in an exclusionary hearing to prevent admission of conversations recorded in violation of 18 U.S.C. Sec. 2511 is statutory, not constitutional, we look to Fourth Amendment precedent to determine whether a party to a communication consented to an interception within the meaning of 18 U.S.C. Sec. 2511. See, e.g., United States v. Kelly, 708 F.2d 121, 125 (3d Cir.), cert. denied, 464 U.S. 916, 104 S.Ct. 279, 78 L.Ed.2d 258 (1983) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) as setting forth the relevant contours of what constitutes voluntary consent). We must therefore apply Bustamonte to determine whether Millar's consent to wear the body recorder was "free" and "voluntary."

Under the Bustamonte framework, consent is a question of fact determined from the totality of the circumstances. Under the totality of the circumstances test, consent is not voluntary merely because a person makes a "knowing" choice among alternatives. Bustamonte, 412 U.S. at 224, 93 S.Ct. at 2046. The ultimate test of voluntariness is whether, under the circumstances, the consent was an exercise of free will or whether the actor's free will "has been overborne and his capacity for self-determination critically impaired." Id. at 225, 93 S.Ct. at 2047. 6 Consent to a wiretap is not voluntary where "it is coerced, either by explicit or implicit means or by implied threat or covert force." Kelly, 708 F.2d at 125. Thus, we must examine the circumstances surrounding Millar's consent to determine if it was a product of his free will, or whether his will was overborne by explicit or implicit means.

Our inquiry into the voluntariness of Millar's consent is restricted. We must accord the district court's conclusion that Millar's consent was involuntary great deference, unless our examination of the record shows that the district court committed clear error. United States v. Hashagen, 816 F.2d 899, 906 (3d Cir.1987). The district court's conclusion will stand unless it "(1) is completely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no rational relationship to the supportive evidentiary data." Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir.1972).

III.

The core issue of this appeal then is whether there is any evidence to support the district court's conclusion that Millar's consent was coerced. Based on our review of the record, we conclude the district court committed clear error. Because our inquiry is fact specific, we attach the relevant portions of Millar's testimony as an appendix to this opinion.

Millar's testimony is devoid of minimum evidentiary support for the conclusion that his consent was involuntary. In his direct examination, Millar explained why he decided to wear the body recorder. "I voluntarily decided to cooperate because I had had a lack of conversation from Dr. Antoon concerning the situation." App. at 134. 7 Because Millar was unable to contact Antoon after he was approached by the authorities, he was left to fend for himself. Millar was, as the saying goes, between a rock and a hard place. He could refuse to cooperate with the authorities and risk going to jail himself, or he could betray his friend, help the government, and stay out of jail. Millar decided to cooperate.

Millar offered another explanation for his cooperation--the desire to clear his name.

It was initially indicated to me that there was discussion that the prescriptions were in my name and were supposedly asked for by me, and I just wanted to clear my name as far as the indications that all those prescriptions were for my person.

App. at 134. Millar evidently thought he had more to lose from allowing people to believe that he was using drugs, than from betraying his close friend.

Antoon concedes that Millar's direct examination strongly suggests that Millar's consent was voluntary, but argues that Millar's testimony on cross-examination showed that he consented only after his will was...

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