U.S. v. Barone, 91-2128

• Decision Date: 09 April 1992
• Docket Number: No. 91-2128,91-2128
• Citation: 968 F.2d 1378
• Parties: UNITED STATES of America, Appellant, v. Pasquale G. BARONE, a/k/a Patsy, a/k/a Anthony Capone, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1378

968 F.2d 1378

61 USLW 2053

UNITED STATES of America, Appellant, v. Pasquale G. BARONE, a/k/a Patsy, a/k/a Anthony Capone,

Defendant, Appellee.

No. 91-2128.

United States Court of Appeals, First Circuit.

Heard April 9, 1992.

Decided July 6, 1992.

Carole S. Schwartz, Special Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., and Gregg L. Sullivan, Asst. U.S. Atty., Boston, Mass., were on brief for appellant.

Bernard Grossberg, Boston, Mass., for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and YOUNG, ^* District Judge.

COFFIN, Senior Circuit Judge.

The government appeals from a district court order suppressing a series of post-arrest statements made by defendant Pasquale Barone. The court found that Barone's right to cut off questioning about a Boston homicide was not "scrupulously honored" by law enforcement officers and that, consequently, they had violated his Fifth Amendment right to remain silent. See Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975). The court also found, however, that Barone made his statements voluntarily. The government argues that, in light of the voluntariness finding, the court should not have suppressed the statements. For reasons we explain below, we uphold the order.

I.

In light of their importance to the claim on appeal, we shall relate the facts of Barone's arrest and subsequent contacts with law enforcement officers in some detail. ¹

At approximately noon on Friday, July 22, 1988, Barone was arrested in an Ohio supermarket where he worked as a stockboy. Although the Massachusetts warrant for his arrest was issued on a charge of unlawfully carrying firearms, the government primarily sought Barone at that time to solicit his cooperation in the investigation of a 1985 murder in Boston. The government believed that Barone had murdered James Limoli upon orders from Vincent Ferrara, a powerful organized crime figure whom the government had been investigating for some time. ²

Four law enforcement officers participated in Barone's arrest: Ohio FBI Agent Michael Bartley, Lieutenant Ralph Gale of the Lorain County, Ohio, Sheriff's Department and a pair of Boston police detectives, Charles Fleming and William Dickinson, who also were members of the United States Organized Crime Strike Force. On the way to the police station after the arrest, as Fleming began to advise Barone of his Miranda rights, the defendant started to recite them himself, stating, "I have a right to remain silent and I have a right to an attorney." The officers added that anything the defendant said could be used against him, and that if he began talking, he could stop at any time. The district court concluded that this exchange provided Barone with "minimally adequate advice of his Miranda rights," Order at 24, noting that he would have received a more elaborate description of those rights had he not claimed familiarity with them.

The issue of Vincent Ferrara's role in the Limoli murder was first raised in the car. According to the officers, Barone initiated the conversation by telling them, "you don't want me, you want Ferrara." The defendant testified, however, that Fleming introduced the topic, telling him that, "we really don't want you. We want Ferrara." The district court made no explicit finding on this conflicting testimony.

The officers and Barone arrived at the Lorain County Sheriff's Department at about 12:30 p.m. Barone was booked, asked some background questions and then placed in a holding cell. Within thirty minutes of his arrival at the jail, Bartley and Dickinson went to speak with him at the holding cell. Without repeating the Miranda warnings, the officers told the defendant that they knew he was involved in the Limoli homicide and that they wanted to discuss the murder. Barone responded by saying there were no witnesses, no gun had been found, and he queried, "why would I kill my best friend?" The officers pressed the defendant to talk, but he said he did not want to discuss the Limoli matter until he got back to Boston. The officers recognized this as an assertion of the right to remain silent about the murder, and they left.

A short time later, Lt. Gale spoke with Barone. Gale, who knew that Barone had refused to talk to Bartley and Dickinson, urged him to cooperate with the Boston authorities. Gale discussed the Charles Street Jail in Boston, where Barone would be sent, noting that it generally was not a safe place and that Barone would be in particular danger there--an implicit reference to the danger posed by Ferrara. ³ Barone told Gale that the case against him would have to be proven in court, that he and Ferrara knew what to expect from each other, and that he would take care of himself.

The district court found that Gale's contact with Barone at this time was designed "to pressure Mr. Barone to abandon the assertion of his right to remain silent and to influence Mr. Barone to cooperate." Order at 27. As a result, the district court found that Gale had failed to "scrupulously honor" Barone's right to remain silent. The court viewed this exchange between the officer and defendant as a reassertion by Barone of his right to remain silent about the Limoli murder.

Less than two hours later, Bartley and Dickinson made a third attempt to solicit Barone's cooperation in the Limoli investigation. Once again, they gave no additional Miranda warnings. And once again, Barone told the officers that he wanted to wait until he got back to Boston to assess the case against him before deciding whether to talk about Limoli. The officers stopped questioning on that subject, but did go on to discuss other matters.

Further contact with Barone did not occur until 7 p.m. the next evening. In the interim, Dickinson spoke with his partner in Boston, Detective Martin Coleman, advising him of Barone's arrest and refusal to discuss the Limoli murder. Dickinson told Coleman that Barone felt no compulsion to cooperate because he believed authorities had no witnesses or evidence against him. Dickinson indicated that he wished to make another effort with Barone, but was concerned about a possible Miranda violation. To discuss this concern, as well as general strategy for obtaining information from Barone, Dickinson contacted Assistant United States Attorney Jeffrey Auerhahn in Boston. Auerhahn advised Dickinson that as long as Barone again acknowledged his Miranda rights, the detective could make another attempt to elicit cooperation.

In an apparent effort to assist Dickinson, authorities in Boston, including Auerhahn and Coleman, had arranged to meet Friday afternoon with Barone's brother-in-law, Walter Jordan. Jordan had agreed to provide significant information about the Limoli homicide. These officials hoped that, when they next questioned Barone, reference to details provided by Jordan would convey the impression that they did have a witness to implicate him. This, the government hoped, would give Barone an incentive to cooperate.

On Saturday evening, when Dickinson and Fleming returned to the jail, they did not ask Barone if he had changed his mind about discussing the Limoli murder. Nor did they give him a fresh set of Miranda warnings. They did mention, however, that he did not have to speak with them, and they also asked the defendant if he remembered his rights. Barone indicated that he did. After making sure that the conversation was not being recorded and that the officers would not take notes, Barone agreed to speak with them.

The discussion began in a friendly, low key manner on topics other than the Limoli homicide. ⁴ At some point during the course of the conversation, the detectives told Barone that they knew he was involved in the murder. They asked questions involving details obtained from Jordan. They repeated the assertion that Barone's life would be in danger in Boston. The district court found that this approach--highlighting the strength of the government's case against him and the danger he would face if returned to Boston without government protection--was intended "to induce [Barone] to change his mind about remaining silent concerning Limoli...." Order at 36. ⁵

The strategy succeeded. Id. Barone began Saturday night to provide information about the Limoli murder. ⁶ The district court found that his change of heart occurred because the government had failed to "scrupulously honor" his decision on Friday not to discuss the Limoli murder until he was back in Boston:

I find the defendant was cajoled and subtly threatened by some of the facts concerning the potential case against him and the danger he would be in from Mr. Ferrara if he was returned to Boston.

Order at 37.

The court noted that, under Miranda, this finding of undue pressure on Barone to change his mind "may alone render his statements involuntary." Id. The court nevertheless went on to conclude that, taking into account the totality of the circumstances, Barone's waiver of his right to remain silent had been voluntary. According to the court, the defendant had sufficient age, intelligence and experience to execute a knowing waiver, knew his Miranda rights, and had, in fact, made a calculated decision to cooperate.

Barone discussed the Limoli murder with the detectives in another conversation the next afternoon, and, following his return to Boston on Monday, July 25, gave additional information to FBI Agent Michael Buckley and Detective Coleman. During the course of that interview, Barone called his sister, who informed him that she had hired a lawyer for him. Upon learning that he was represented by counsel, the officers immediately stopped questioning Barone. They indicated, however, that they would return to see the defendant the next day. He refused to see them at that time.

In March 1990, Barone, along with seven co-defendants, was charged in a 65-count superseding indictment with racketeering and numerous other offenses, including...