U.S. v. Bienvenue

• Decision Date: 30 September 1980
• Docket Number: No. 79-1657,79-1657
• Citation: 632 F.2d 910
• Parties: 7 Fed. R. Evid. Serv. 824 UNITED STATES of America, Appellee, v. Donald BIENVENUE, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 910

632 F.2d 910

7 Fed. R. Evid. Serv. 824

UNITED STATES of America, Appellee, v. Donald BIENVENUE, Appellant.

No. 79-1657.

United States Court of Appeals First Circuit.

Argued June 5, 1980.

Decided Sept. 30, 1980.

John C. Boeckeler, Concord, N. H., with whom Cullity & Kelley, Manchester, N. H., was on brief, for appellant.

Robert J. Lynn, Asst. U. S. Atty., Concord, N. H., with whom William H. Shaheen, U. S. Atty., Concord, N. H., was on brief, for appellee.

Before CAMPBELL, Circuit Judge, BOWNES, Circuit Judge, and BOYLE, District Judge. ^*

FRANCIS J. BOYLE, District Judge.

The Defendant, Donald Bienvenue, has appealed from his conviction of conspiracy to import cocaine. Appellant was convicted by a jury and sentenced to seven years imprisonment and a special parole term of three years.

On February 14, 1979, Appellant's wife, Susan Bienvenue, was arrested upon her return from Bogata, Colombia, by a customs inspector at the Miami International Airport in Miami, Florida, for possession of cocaine. Susan Bienvenue was accompanied by the couple's three year old son, Brian. Susan and her son Brian had over one pound of cocaine concealed in three pairs of shoes packed in their luggage and in the shoes they were wearing. ¹ Shortly after being placed under arrest, Susan asked if she could call her husband, adding "he's expecting my call." The customs inspector refused the request.

Agents from the Drug Enforcement Administration took custody of Susan, the five pairs of shoes and cocaine, and the passports and airline tickets of Susan and Brian. The face of the tickets revealed that they were issued by a travel agency in Manchester, New Hampshire. The Drug Enforcement Administration agents asked Susan if her husband would be able to come down to Miami that evening to pick up the boy, and Susan, who earlier had reported that her husband was a Manchester Police Officer, indicated that she did not know whether her husband could make the trip. The Drug Enforcement Administration agents then called an agent of the Drug Enforcement Administration in Manchester, who arranged to meet with the Appellant at the Manchester Police Station.

When the Manchester Police first requested that the Appellant come to the station, the Appellant stated that he could not come right then because he was expecting an important phone call. After the Manchester Police informed the Appellant that his wife had been arrested in Miami and the Appellant informed the Manchester Police that he was getting Kelle McGranoghan as a baby-sitter for his other child, the Appellant went to the station. He was not arrested or searched, but he was read his rights prior to any questioning. The Appellant denied any knowledge of his wife's trip to Colombia, and stated that after he had an argument with his wife, she went to Chicago. In response to further questioning, Appellant admitted that he had been to Colombia once in either November or December of 1978, and that he had booked the trip through an unidentified Manchester travel agency. Although the original purpose of the agents' investigation was to secure the Appellant's cooperation in persuading his wife to make a controlled delivery of the cocaine to the ultimate recipient, after learning of his trip to Colombia, the agents informed him that he was suspected of conspiracy to import cocaine. The Appellant then left the station to consult with an attorney. Appellant alleges that he requested a telephone number where his son could be reached, and that his request was denied in an effort to coerce his cooperation.

That evening, the Manchester Police obtained and executed a state search warrant for the Appellant's residence. During the search the officers seized a blank passport application and airline ticket stubs covering two prior trips to Columbia made by the Appellant. These tickets showed on their face that they were booked through different travel agencies from the one used by the Appellant's wife. Canvassing of the travel agencies in Manchester revealed that Donald and Susan Bienvenue, Dennis Therrien, and Kelle McGranoghan had made a total of five trips to Colombia booked through various travel agencies with a sixth trip planned for March, 1979. ²

Other evidence introduced at trial included a taped phone call between Appellant and Therrien, testimony that Appellant had signed the passport applications of his wife and son which indicated they were going to Colombia, and testimony that on the day his wife flew to Colombia he told another baby-sitter that he was going to Therrien's house where he was expecting a call from his wife. Dennis Therrien was a Manchester Fire Department dispatcher, and Appellant telephoned Therrien at work on a tape recorded telephone line ³ shortly after his departure from the police station where he had learned that his wife had been arrested in Florida. This tape was played at trial, and in the conversation Appellant stated that it "didn't look good" and that the police were "trying to nail me for conspiracy." One of Therrien's co-workers transferred the call to a private line, and Therrien continued the conversation for another fifteen to twenty minutes in a different room. After this call, Therrien placed two outgoing calls and left work prior to the end of his shift, saying he was sick.

Appellant presents four issues to this Court on appeal. First, Appellant contends that the District Court erred in failing to suppress the statements he made to the Government at the initial interview in the Manchester Police Station because these statements were coerced in violation of his fourth amendment rights through the denial of his request for a telephone number to contact his son. Next, Appellant contends that the travel records of the various agencies which gave the police the names of other travel agencies and informed them of his other trips were improperly admitted as the fruit of an unlawful search of his apartment. Defendant also argues that his wife's statement to the customs inspector indicating the Appellant was expecting her call was improperly admitted under Rule 804(b)(5) of the Federal Rules of Evidence and was a denial of his sixth amendment right of confrontation. Lastly, Appellant contests the District Court's ability to impose a special parole term in a conspiracy violation under the Comprehensive Drug Abuse Prevention and Control Act. The Government contends that the statements by the Appellant were voluntary, that the travel agency records were obtained from an independent source or under the inevitable discovery doctrine, that the wife's statement was properly admitted, and that the District Court may impose a special parole term for a conspiracy violation of the Comprehensive Drug Abuse Prevention and Control Act.

Appellant's first claim concerns the voluntariness of the statements given to the Government at the initial interview in the Manchester Police Station. Appellant does not contend that the interrogation of the Appellant was custodial interrogation, and the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), are therefore inapplicable. However, "noncustodial interrogation might possibly in some situations, by virtue of some special circumstances be characterized as one where 'the behavior of . . . law enforcement officials was such as to overbear petitioner's will to resist and bring about confessions not freely self-determined . . . .' " Beckwith v. United States, 425 U.S. 341, 347-48, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1 (1976) (quoting Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961)). In such circumstances, statements are involuntary if, "considering the totality of the circumstances, the free will of the witness was overborne." United States v. Washington, 431 U.S. 181, 188, 97 S.Ct. 1814, 1819, 52 L.Ed. 238 (1977). "When such a claim is raised, it is the duty of an appellate court . . . 'to examine the entire record and make an independent determination of the ultimate issue of voluntariness.' " Beckwith v. United States, supra, 425 U.S. at 348, 96 S.Ct. at 1617 (quoting Davis v. North Carolina, 384 U.S. 737, 741-742, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966)). Because in this instance the undisputed facts are dispositive, it is only necessary that we consider those facts in our independent determination of the voluntariness of the Appellant's statements. Johnson v. Hall, 605 F.2d 577, 580 (1st Cir. 1979); Makarewicz v. Scafati, 438 F.2d 474, 477 (1st Cir. 1971). See also Procunier v. Atchley, 400 U.S. 446, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971).

In the present case we are satisfied that the statements made by the Appellant at the initial interrogation in the Manchester Police Station were voluntarily given. The following facts are undisputed. Appellant was a Manchester Police Officer and his interrogation took place within the familiar surroundings of his place of employment. No threats of force or disciplinary action were used, and the Appellant voluntarily came to the station and was free to leave at any time. In fact, when the Appellant became the focus of the interrogation, he was allowed to leave the station, at his request, to consult with an attorney. Appellant disputes the Government's version of the interrogation and contends that his free will was overborne by "psychological coercion" resulting from the withholding of a telephone number where his son could be contacted coupled allegedly with representations made by the police that his son was in a state of traumatic shock. However, even accepting the Appellant's version as accurate, the totality of the undisputed circumstances, especially in the light of Appellant's ability to leave the station, establishes that the statements were voluntarily given and that the Appellant's free will was not overborne by "psychological coercion." The only disputed evidence of "psychological coercion" stems from the...