U.S. v. Eccles

• Citation: 850 F.2d 1357
• Decision Date: 01 July 1988
• Docket Number: Nos. 87-5062,87-5089 and 87-5099,s. 87-5062
• Parties: UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. Karen ECCLES, Defendant-Appellee, Cross-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1357

850 F.2d 1357

UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. Karen ECCLES, Defendant-Appellee, Cross-Appellant.

Nos. 87-5062, 87-5089 and 87-5099.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 4, 1988.

Decided July 1, 1988.

Richard A. Small, Sp. Atty., U.S. Dept. of Justice, Los Angeles, Cal., for plaintiff-appellant.

Joshua C. Needle, Santa Monica, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN and HALL, Circuit Judges, and BELLONI, ^* District Judge.

GOODWIN, Circuit Judge:

Karen Eccles brings an interlocutory appeal from the district court's denial of her motions for dismissal of her indictment, disqualification of the prosecutor, and disclosure of grand jury transcripts. In addition, the government appeals and Eccles cross-appeals from the district court's order granting in part and denying in part the defendant's motion to suppress statements On October 4, 1984, the defendant was indicted by a federal grand jury sitting in the Central District of California in a prosecution brought by a Department of Justice "Strike Force." Eccles was charged with five counts of making false declarations before the district court in violation of 18 U.S.C. Sec. 1623 (1982). The indictment arose from statements that Eccles made during testimony in a suppression hearing in United States v. Simpson, 813 F.2d 1462 (9th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 233, 98 L.Ed.2d 192 (1987). These statements were inconsistent with statements that Eccles subsequently made to government agents and attorneys.

she made to government agents and attorneys.

The court suppressed all statements made by the defendant prior to the appearance of a deputy public defender appointed to represent her, finding that all her uncounseled statements "were the product of psychological coercion in violation of her fifth amendment rights to due process of law and to be free from coerced self-incrimination." The government filed a timely notice of appeal.

On March 30, 1987, the defendant filed a clearly untimely notice of appeal from the district court's December 8, 1986 denial of her motions for dismissal of the indictment due to prosecutorial misconduct before the grand jury, for disqualification of the Strike Force, and for disclosure of grand jury transcripts. Eccles cited as grounds for jurisdiction, despite the untimely notice of appeal, United States v. Benjamin, 812 F.2d 548 (9th Cir.1987), which had been decided on March 11, 1987. On the same day, she filed a notice of cross-appeal, which raised the same issues addressed by her notice of appeal. The notice of cross-appeal also challenged the district court's denial in part of her motion for suppression. On April 6, 1987, the district court deemed the defendant's notices of appeal and of cross-appeal to have been filed as of March 30, 1987.

1. Motion to Suppress.

The government appeals and the defendant cross-appeals from the order granting in part and denying in part the defendant's motion to suppress. Before we reach the merits, we must first address the question whether we have appellate jurisdiction over this interlocutory appeal from the district court's ruling on a motion for suppression.

"As a general rule, an order by a district court denying or granting a motion to suppress is not an appealable final order under [28 U.S.C. Sec.] 1291. Such an order is 'but a step in the criminal case preliminary to a trial thereof,' and is thus interlocutory." People of the Territory of Guam v. Mafnas, 721 F.2d 683, 685 (9th Cir.1983) (quoting DiBella v. United States, 369 U.S. 121, 131, 82 S.Ct. 654, 660, 7 L.Ed.2d 614 (1962)). See DeMassa v. Nunez, 747 F.2d 1283, 1286 (9th Cir.1984); In re Search Warrants (Executed on January 23, 1983), 750 F.2d 664, 666-68 (8th Cir.1984).

Congress has by statute provided for interlocutory appeals by the government from a district court order "suppressing or excluding evidence ... if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding." 18 U.S.C. Sec. 3731 (1982). However, in this case, the United States attorney did not provide the necessary certification to the district court until after we heard oral argument.

We have held that delayed filing of a section 3731 certificate, although disfavored, does not destroy appellate jurisdiction. See Meier v. Keller, 521 F.2d 548, 553 (9th Cir.1975), cert. denied, 424 U.S. 943, 96 S.Ct. 1410, 47 L.Ed.2d 348 (1976). Precedent therefore compels us to allow the government to perfect jurisdiction in this case by filing the appropriate certificate after oral argument. We recognize, however, that a general rule excusing the government from filing a certificate until after oral argument would eviscerate the statutory requirement that the United States attorney certify that the appeal has not been taken to delay trial. See 18 U.S.C. Sec. 3731. We therefore follow the lead of the Fifth Circuit in United States v. Herman The district court granted in part and denied in part the defendant's motion to suppress statements that she made to government agents and attorneys. The district court excluded statements made by the defendant to FBI Special Agent Robert Hamer and other members of the Strike Force between July 18 and July 24, 1984, finding that all such statements were the product of psychological coercion and were therefore involuntary. It found admissible all statements made by the defendant after the arrival of Janet Levine, a deputy federal public defender appointed to represent her.

                44 F.2d 791, 794 (5th Cir.1977), and "serve notice upon [the government] that we will entertain no future section 3731 appeals unless the appropriate certificate is incorporated in the record on appeal."    On its face, a failure to certify is a violation of the statute confirming the right to appeal
                

The district court found that Special Agent Hamer approached Eccles on July 18, 1984, although at that time he lacked an arrest warrant, a search warrant, or probable cause to obtain a warrant. At this time and at subsequent meetings, the government never advised Eccles of her constitutional rights. During meetings from July 18 to July 24, 1984, one or more agents: 1) told the defendant that her life was in danger from Simpson and his attorney, that the attorney had been indicted for murder, and that a murder had been committed in Simpson's apartment; ¹ 2) told her that she could not trust anyone outside of the government and not to contact anyone; 3) told her that she should obtain relocation through the Witness Protection Program, thereby obtaining income, housing, education, and detoxification, and, most importantly, that she then could be reunited with her daughter; 4) switched the location of the clinic from which she received methadone, thereby ensuring that she could receive her methadone only in the presence of Special Agent Hamer; 5) moved the defendant from her residence, claiming that it was too dangerous, and then compelled her to stay at locations chosen by and paid for by Hamer; and 6) at some times denied her request to use the telephone.

The district court also found that the appearance of Deputy Public Defender Levine provided sufficient legal advice and moral support for the defendant to make informed and voluntary statements to the government.

Based upon these factual findings, the district court concluded as a matter of law that all statements made by the defendant prior to the appearance of her court-appointed attorney "were the product of psychological coercion in violation of her fifth amendment rights to due process of law and to be free from coerced self-incrimination."

It's very clear in terms of the treatment regarding her and her daughter, the implications of all of the circumstances surrounding the possible threats on her life, her daughter's life, putting her together with her daughter in the witness protection program, the kind of promises that were put out on the [one] hand, the fear put out on the other hand. All of these kinds of things, given her background, which was well known to the Strike Force and to the F.B.I. at that time, her dependence on chemical substances, the methadone and other kinds of treatments that were supposedly used to abate that dependence that were almost fully in the control of the F.B.I. [,] all of the surrounding circumstances point directly to psychological coercion.

The district court declined to find that statements made after Levine's arrival were the result of the government's coercion. It found that there was the "opportunity, if nothing more, for Miss Levine to make herself available to Miss Eccles, Miss Eccles to talk with her, receive advice from her, and also to receive moral support." The court therefore concluded that any statements made by the defendant after Review of the district court's factual findings is for clear error, while the district court's conclusion as to voluntariness of a confession is reviewed de novo. See United States v. Wolf, 813 F.2d 970, 974 (9th Cir.1987). Due process requires the exclusion of statements only when "government officials employed coercive interrogation tactics which rendered the defendant's confession 'involuntary' as a matter of law." Id.

the appointment of an attorney were admissible.

In order to be voluntary, a confession must be "the product of a rational intellect and a free will." Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960). The fifth amendment secures "the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence." Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964)....