U.S. v. Byram

• Decision Date: 04 March 1998
• Docket Number: No. 97-2273,97-2273
• Citation: 145 F.3d 405
• Parties: UNITED STATES of America, Appellant, v. Herman Joseph BYRAM, Jr., Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 405

145 F.3d 405

UNITED STATES of America, Appellant, v. Herman Joseph BYRAM, Jr., Defendant, Appellee.

No. 97-2273.

United States Court of Appeals, First Circuit.

Heard March 4, 1998.

Decided May 20, 1998.

Margaret D. McGaughey, Assistant United States Attorney, with whom Jay P. McCloskey, United States Attorney, and James L. McCarthy, Assistant United States Attorney, were on brief for the United States.

Jeffrey M. Silverstein, by appointment of the court, with whom Billings & Silverstein was on brief for appellee.

Before BOUDIN, Circuit Judge, COFFIN and CYR, Senior Circuit Judges.

BOUDIN, Circuit Judge.

In June, 1997, Herman Byram, Jr., was indicted by a federal grand jury as a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(e). In the district court, Byram moved to suppress two statements he had made: one while in police custody and the other comprising his later trial testimony in a state criminal case involving a different defendant. The district court granted the motion, and the government brought this interlocutory appeal under 18 U.S.C. § 3231.

The background facts, testified to at the suppression hearing, are virtually undisputed. On the evening of June 12, 1996, and into the early morning of the next day, Byram was at the house of his friend Donald Boyce. In the early morning of June 13, Sean Bither, another friend of Boyce, was fatally shot during a game of Russian Roulette. Boyce--who allegedly had helped hold the gun to Bither's head--was later indicted and convicted of murder in Maine state court.

On June 13th, 1996, Detective Sergeant Dennis Appleton was assigned to supervise the case, and he learned that someone named "Frenchie" had been a witness to the shooting. Some time later, Appleton discovered that "Frenchie" was Herman Byram and that at some point during the evening, Byram had loaded Boyce's gun. Byram was on probation at the time. After the shooting Byram did not report to his parole officer for several months, and could not be found by the police.

At some point in the months following the shooting, Appleton contacted Special Agent Kenneth MacMaster of the Maine State Police. MacMaster had been assigned to a federal task force. Appleton told MacMaster that the police were looking for Byram as a witness, and that Byram might be charged under federal law as a felon in possession of a weapon, based on Byram's loading of the gun on the night of Bither's murder. (Byram's explanation was that he had reloaded the gun twice in the hope that Boyce would use the ammunition harmlessly.)

On February 19, 1997, after a warrant had been issued for his arrest, Byram turned himself in to his parole officer. Byram was immediately jailed and, the next day, was taken to Caribou Superior Court for arraignment. Learning of Byram's arrest, Appleton sent Detective James Madore to the courthouse to interview Byram and serve him with a subpoena for Boyce's trial. Appleton told Madore to ask not only about the murder, but also about Byram's handling of the gun; it is not clear whether Appleton told Madore about the possibility of a possession charge against Byram.

Madore interviewed Byram in a small conference room in the courthouse with no one else present, directing his main questioning to Bither's death. Byram explained that he was in the courthouse for a parole violation; Madore knew that this meant that Byram was a felon. At first, Byram was reluctant to talk, but he spoke readily after Madore told him that he was not "implicated in any of this." Madore did not read Byram his Miranda rights at any point in the interview.

After discussing Byram's presence in the Boyce house on the night of the murder, Madore turned to Byram's handling of the gun. Byram discussed the details, apparently with no reluctance. At the end of the interview, Madore handed Byram the subpoena, and Byram returned to the courthouse holding cell. Later that day, Byram was arraigned, pled guilty to a violation of the terms of his probation, and was sentenced to six months in prison. Madore reported on his interview to Appleton and filed a written report.

On March 4, 1997, Agent MacMaster reviewed that report, and around that time he again discussed the matter with Appleton. Knowing that Byram was to testify at Boyce's murder trial, the two men agreed to take no further action until then. Appleton also spoke to William Stokes, who was to prosecute Boyce in state court, about Byram's prospective testimony. They discussed whether to advise Byram of his rights, but Appleton left the final decision up to the prosecutor.

On March 25, 1997, Byram, still in jail, was brought under subpoena to testify at the Boyce trial in state court. Neither Stokes nor anyone else advised him of his right not to incriminate himself or suggested that he consult an attorney. Byram testified in detail not only to the events surrounding the murder, but also to his having twice loaded Boyce's gun earlier in the day. After the testimony Appleton once again contacted MacMaster to report that Byram had incriminated himself on the stand.

A couple of months later MacMaster received the transcript of Byram's testimony, and reviewed it. On May 30, 1997, MacMaster himself interviewed Byram at the Aroostook County Jail. MacMaster began the interview by reading Byram his Miranda rights, but did not ask him any questions about his handling of the gun. About three weeks later, a federal grand jury indicted Byram on the charge of being a felon in possession because of his handling of the gun on the day of Bither's death.

Before trial, the district court held a hearing on Byram's motion to suppress his two statements. Byram testified and claimed to remember that he had been read his rights by Madore at the first interview. However, the government admitted that Madore's evidence would be to the contrary, and the government and the judge agreed that Madore's memory of the events was probably more accurate than Byram's. The court also heard testimony from Madore, Appleton and MacMaster and accepted a stipulation from the parties concerning Stokes's actions.

After hearing argument from the parties, the court ruled on the motion to suppress in open court. Preliminarily, the court found that Byram in fact had not been advised of his Miranda rights by Madore, and also that Appleton, Madore, and MacMaster had acted in good faith, properly giving the murder case priority over the possession charge. The court held that, at the February 1997 interview, Byram had been in custody for Miranda purposes.

In explaining the reasons for suppression, the judge first noted that he found the voluntariness of both Byram's statement to Madore and Byram's open court testimony "suspect," and went on to say, "I'm satisfied that the defendant was not advised of his rights at any time ... prior to those statements and that he should have been.... I'm not going to suggest at which stage or by whom." The court then concluded that Byram had been deprived of his due process rights, and granted the motion to suppress both statements. This appeal followed.

On appeal, the government has decided not to challenge the district court's exclusion of Byram's initial statement to Madore in the courthouse on February 20, 1997; but it vigorously objects to the exclusion of Byram's March 25, 1997, trial testimony. We consider in turn three possible grounds for exclusion of the trial testimony: that it was the "fruit" of an involuntary confession, that it was the result of outrageous police conduct that shocks the conscience, and that it was the fruit of the Miranda violation.

Voluntariness. The district court expressed doubt whether Byram's statements to Madore and his testimony in open court were "voluntary" but did not expressly decide the issue. If we shared serious doubts about the voluntariness of the statements, we would probably remand for further findings because involuntariness is the best-settled and narrowest ground on which this case could be decided; the Miranda fruits issue, as we will see, is unusually difficult. However, the voluntariness standard has been refined by the Supreme Court in a manner that makes a voluntariness claim too doubtful to warrant a remand, and we think it useful to explain why.

Historically, the requirement that admissible confessions be "voluntary" reflected a variety of values; these included deterring coercion, assuring reliability of confessions, and protecting the suspect's free choice whether to confess. Thus, at common law, confessions produced by promises not to prosecute or offers of leniency were often excluded as involuntary. See 1 W. LaFave & J. Israel, Criminal Procedure § 6.2, at 440 (1985). And early Supreme Court cases looked in the same direction. E.g., Lisenba v. California, 314 U.S. 219, 234, 62 S.Ct. 280, 86 L.Ed. 166 (1941).

However, in recent years, the Supreme Court has confined the voluntariness concept by holding that only confessions procured by coercive official tactics should be excluded as involuntary. Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). See United States v. Santos, 131 F.3d 16, 19 (1st Cir.1997); LaFave & Israel, supra, § 6.2 at 87 (Supp.1990). "Free choice" is no longer a touchstone; indeed, the Supreme Court has ruled in Connelly that a volunteered confession was admissible even if the product of a psychosis that undermined the suspect's ability to make a free and rational choice.

Judging whether improper police coercion occurred depends on the circumstances, but despite the district court's reservations it would be difficult to describe Byram's statements as coerced under Connelly. At no point did the police threaten violence or serious retaliation if Byram refused to speak; the questioning was not prolonged; and the atmosphere at the February 1997 courthouse interview appears to have been benign. Indeed, Byram does not seriously argue that...