U.S. v. Mitchell, 3

• Citation: 966 F.2d 92
• Decision Date: 08 June 1992
• Docket Number: No. 3,No. 405,D,3,405
• Parties: , 61 USLW 2015, 22 Envtl. L. Rep. 21,291 UNITED STATES of America, Appellant, v. W. John MITCHELL, II, a/k/a Jack Mitchell; Gary Brouillette; Prudential Committee of Websterville Fire Districtof Websterville, Vermont, Defendants-Appellees. ocket 91-1383.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 92

966 F.2d 92

34 ERC 2109, 61 USLW 2015, 22 Envtl.

L. Rep. 21,291

UNITED STATES of America, Appellant, v. W. John MITCHELL, II, a/k/a Jack Mitchell; Gary

Brouillette; Prudential Committee of Websterville

Fire District No. 3 of Websterville,

Vermont, Defendants-Appellees.

No. 405, Docket 91-1383.

United States Court of Appeals, Second Circuit.

Argued Nov. 22, 1991.

Decided June 8, 1992.

Peter W. Hull, Asst. U.S. Atty., D. Vermont, Burlington, Vt. (George J. Terwilliger, III, U.S. Atty., and David V. Kirby, Asst. U.S. Atty., D. Vermont, of counsel), for appellant.

Bonnie Barnes, Middlebury, Vt. (William K. Sessions, Middlebury, Vt., Gabor Rona

and Eric Parker, Barre, Vt., of counsel), for defendants-appellees.

Before: PRATT, MAHONEY and McLAUGHLIN, Circuit Judges.

MAHONEY, Circuit Judge:

The United States appeals, pursuant to 18 U.S.C. § 3731 (1988), from a pretrial ruling of the United States District Court for the District of Vermont, Franklin S. Billings, Jr., then-Chief Judge, entered May 15, 1991 that suppressed certain statements made by defendants-appellees W. John Mitchell and Gary Brouillette to representatives of the United States Environmental Protection Agency ("EPA"). United States v. Mitchell, 763 F.Supp. 1262 (D.Vt.1991). The district court ruled that: (1) the statements were obtained during custodial interrogations without Mitchell and Brouillette having been advised of their constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and (2) the statements were procured through trickery and deception in violation of the Due Process Clause of the Fifth Amendment.

We reverse.

Background

A. The Events at Issue.

Mitchell is responsible for operating the water system of Websterville Fire District No. 3 ("WFD No. 3") in Websterville, Vermont under the supervision of the Prudential Committee of WFD No. 3 (the "Prudential Committee"), a legal entity under Vermont law of which Mitchell is a member. WFD No. 3 is a public community water system that supplies drinking water to approximately 420 people in Websterville. Mitchell receives $1,525.00 a year for these services. He is also a custodian/bus driver for the Barre Town Elementary School, a selectman in Barre Town, and has at times served as a part-time police officer in Barre Town and Barre City.

WFD No. 3 provides water from two quarries. This water is subject to various tests pursuant to the Safe Drinking Water Act, 42 U.S.C. § 300f (1988) et seq., and the National Primary Drinking Water Regulations, 40 C.F.R. pt. 141 (1991). One such required test is a daily sampling (at the point where the water enters into the distribution system) for the turbidity level, which measures the amount of suspended particulate matter in the water. Such particulate matter can come from human or animal feces, erosion, or surface water runoff, and can be a source of disease. It can also shield disease-producing organisms from destruction by commonly used disinfectants, such as chlorine. Some forms of particulate matter may also contribute to the development of a group of organic chemicals known as trihalomethanes, at least one of which, chloroform, is a known carcinogen.

Brouillette is also a member of the Prudential Committee. His responsibilities include taking samples of the water supply from an appropriate point in the system, transporting these samples to Barre City for turbidity tests, and reporting the results of these tests to the State of Vermont, which compiles the results of the testing and reports the compilation to the EPA. Brouillette is paid $25.00 per year for these services. He has been employed as a sales representative for the last twenty-six years, a position that requires frequent travel.

During the summer of 1990, the EPA became suspicious that the turbidity reports from WFD No. 3 were being falsified. An investigation was commenced under the direction of EPA Special Agent Miner W. Tuttle. Tuttle reviewed the low and consistently uniform results that had been reported from Websterville in the past and had aroused EPA concern, and EPA investigators conducted their own test on the water supply. Tuttle then decided to interrogate Mitchell and Brouillette concerning the suspected false turbidity reporting.

On July 10, 1990, Tuttle arrived unannounced at Mitchell's home, accompanied by EPA Special Agent Jennifer Olsen and Ed Bour, a government chemist. Tuttle presented his EPA credentials, which specified that he was an official of the EPA Office of Criminal Investigations, and a discussion ensued for twenty to thirty minutes on the front porch of Mitchell's house. Tuttle then accompanied Mitchell on a tour of the WFD No. 3 system, which took approximately another hour. In the course of the conversations between Tuttle and Mitchell, both at Mitchell's home and at the water facility, Mitchell made certain inculpatory statements indicating that the turbidity reports were not conducted daily, as required and reported. In particular, Mitchell revealed his knowledge that the turbidity tests were probably not conducted on weekends or when Brouillette was absent from the Websterville area. At no time did Agent Tuttle, or any other government agent, provide Mitchell with Miranda warnings.

After they interviewed Mitchell, Tuttle and his colleagues went unannounced to Brouillette's house. Brouillette was initially unavailable, but was interviewed later in the afternoon upon returning home from work. Tuttle again displayed his EPA credentials and identified himself. Brouillette then invited Tuttle and his colleagues into Brouillette's home, where an interview ensued in the kitchen. Brouillette's wife and daughter were in an adjacent room. This interview lasted thirty to forty-five minutes. As with Mitchell, no Miranda warnings were given. During this interview, Brouillette told Tuttle that water samples for the turbidity tests were not taken from an appropriate entry point of the water system, but were in fact drawn from a faucet at Brouillette's home. Brouillette apparently made other statements indicating that the required turbidity testing and reporting standards were not being followed.

B. The Proceedings Below.

On September 13, 1990, a federal grand jury sitting in Rutland, Vermont returned a thirty-four count indictment against Mitchell, Brouillette, and the Prudential Committee. The grand jury charged the defendants with conspiracy to make false statements to the EPA concerning the results of turbidity tests conducted on the Websterville water supply, in violation of 18 U.S.C. § 371 (1988), and with thirty-three individual counts of willfully making false statements or representations by filing monthly reports that misrepresented the conduct of daily turbidity tests, in violation of 18 U.S.C. § 1001 (1988). Mitchell and Brouillette were arraigned on October 29, 1990, pleaded not guilty, and were released on unsecured personal recognizance bonds.

Mitchell and Brouillette thereafter moved to suppress the statements obtained from them by Tuttle during the July 10, 1990 interviews. The district court conducted a suppression hearing at which Tuttle, Mitchell, and Brouillette testified regarding the interviews.

Tuttle testified that he arrived at Mitchell's home on July 10, 1990, presented Mitchell with his credentials, and asked Mitchell to read them, which Mitchell appeared to do "for a minute or so." Tuttle did not independently advise Mitchell that Tuttle was a representative of the EPA's Office of Criminal Investigations, but his credentials so stated. Mitchell was told that he was not in custody and did not have to talk to the EPA representatives.

Tuttle explained to Mitchell that Tuttle "needed to interview [Mitchell] relative to his involvement with the water system," and engaged him in general conversation on that subject. According to Tuttle, Mitchell never indicated he did not wish to respond to Tuttle's inquiries; rather, Mitchell was "extremely cooperative." At no time, either at Mitchell's house or later at the water facility, did Tuttle or his colleagues make any threats or promises to Mitchell.

Eventually, the interview turned to specific questions about how the system operated and who was responsible for the turbidity testing. At its conclusion, in response to an inquiry by Mitchell regarding "what was going to happen," Tuttle advised that he would write a report and submit it to the EPA, "and then from there to the U.S. attorney's office....[,] who decided what would happen."

On cross-examination, Tuttle admitted to telling Mitchell that it was a crime to lie to a federal agent when it appeared that Mitchell was providing varying accounts as to the frequency of the turbidity testing. Tuttle also pressed Mitchell for amplified responses to Tuttle's questions concerning the turbidity tests, inquiring whether Mitchell was "sure" that the turbidity tests were conducted daily, as Mitchell originally stated. Mitchell then conceded that the tests were not conducted on weekends, and subsequently that they were not conducted when Brouillette was "on vacation," ultimately referring Tuttle to Brouillette for more specific information.

Tuttle testified that at times Mitchell appeared somewhat reluctant to talk about specific topics, and ultimately became "heated" as he became upset with the course of the interview, but never manifested a desire to terminate the interview. At one point during their conversation, Mitchell expressed frustration with dealing with the government and its regulations. Mitchell also indicated to Tuttle, however, "that he was really anxious to have the help" of the EPA. Tuttle felt that overall, Mitchell told Tuttle "everything ... that he ... honestly knew and ... was cooperating."

Mitchell testified that he looked at Tuttle's credentials, but did not notice the reference thereon to the EPA Office of Criminal Investigations. He indicated that he was...