U.S. v. Jorgensen

• Decision Date: 25 April 1989
• Docket Number: No. 87-2487,87-2487
• Parties: UNITED STATES of America, Appellee, v. Billy Lee JORGENSEN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 725

871 F.2d 725

UNITED STATES of America, Appellee, v. Billy Lee JORGENSEN, Appellant.

No. 87-2487.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 18, 1988.

Decided March 21, 1989.

Rehearing and Rehearing En Banc Denied April 25, 1989.

Diane Stahle, Des Moines, Iowa, for appellant.

Linda R. Reade, Des Moines, Iowa, for appellee.

Before HEANEY, ^* Senior Circuit Judge, MAGILL, Circuit Judge, and LARSON, ^** Senior District Judge.

MAGILL, Circuit Judge.

In this case, the district court ¹ dismissed a motion to suppress inculpatory statements made by a criminal suspect to federal investigators before he was arrested or charged. We agree with the district court's findings and accordingly affirm.

On October 26, 1987, Billy Lee Jorgensen pled guilty to two counts of transporting stolen goods in interstate commerce. However, Jorgensen, who subsequently received two concurrent three-year prison sentences, preserved his right to appeal from the district court's dismissal of his motion to suppress all statements he made when questioned in a FBI office on July 19, 1985. Jorgensen's motion asserted that his statements were inadmissible because they were obtained without proper Miranda warnings, by psychological coercion, and during plea bargaining negotiations.

I. BACKGROUND

This case began with the theft of a tractor and trailer containing 40,000 pounds of Oscar Mayer meat products (valued at approximately $80,000). During the weekend of June 22, 1985, the meat trailer was shipped interstate. When the shipment reached Altoona, Iowa, it was stolen by a group authorities believed consisted of Billy Lee Jorgensen, his older brother Garry Jorgensen, David Atchley, and Dirk Sungle. Witnesses who had seen the thieves with the stolen meat trailer after it broke down in Monroe, Iowa identified photographs of Billy Lee Jorgensen and Mr. Atchley ² on July 11, 1985. After the photo identifications, Special Agent David T. Oxler, a nineteen-year FBI veteran stationed at the Bureau's headquarters at 1 Corporate Place in West Des Moines, contacted Billy Lee Jorgensen to request an interview in regard to the meat trailer theft.

Oxler allowed Jorgensen to choose where and when to conduct the interview. Eventually, Jorgensen elected to be questioned in Oxler's office at approximately 10:00 a.m. on July 19, 1985. The office was located on the fifth floor of a large commercial office building that contains private businesses and the FBI offices. Oxler informed Jorgensen that he could either drive to the interview on his own, or a Bureau employee could "pick him up." Jorgensen believed that Oxler's wording was euphemistic and tacitly compelled him either to comply with Oxler's request to come in for questioning or to submit to immediate arrest and detention by the FBI. Oxler insists that he simply offered Jorgensen a ride to the FBI offices in case he had no other means of transportation.

Oxler emphasizes that although he encouraged Jorgensen to come in for questioning, it should have been apparent to Jorgensen that he was free to decline. Oxler stated during Jorgensen's suppression hearing that on "innumerable" occasions, suspects he wished to interview had refused to appear.

Despite his suspicion that Oxler had ordered him to appear for questioning by applying subtle coercion, Jorgensen did appear at the West Des Moines FBI offices on the morning of July 19, 1985, along with his brother Garry. Jorgensen explained at the suppression hearing that Garry accompanied him for "support," because Jorgensen feared the interview would lead to his arrest. Oxler and Jorgensen have offered conflicting descriptions of the FBI headquarters and its atmosphere. Physically, it consisted of a small waiting room, a "squad room" occupied by several agents and their secretaries, and a supervisor's office (in which the interview of Billy Lee Jorgensen took place).

To Oxler, the two-hour interview was informal, routine and, under the circumstances, fairly friendly. ³ In contrast, Jorgensen insists that when Oxler led him in to be questioned, Oxler ordered Garry Jorgensen to stay in the waiting room and prepare to be questioned after his brother. Oxler apparently never informed either of the Jorgensens that they were free to leave. Nor did he give them Miranda warnings.

Jorgensen asserts that door buzzers, locking doors, agents with visible weapons, and other security devices in the FBI offices made him feel as though he were in custody. However, the offices had no holding cells or other facilities for detaining arrestees or suspects. In addition, the offices had no security guard on duty. All told, the record gives us two tales of one set of offices. We must consider whether the FBI offices were Oxler's innocuous bureaucratic workplace or Jorgensen's tacitly (but effectively) intimidating detention center.

Those present at the questioning were Oxler, Jorgensen and Officer Larry Streeter of the Altoona Police Department. Streeter had investigated the case when it was a local Altoona, Iowa matter. Agent Oxler led the investigation when Altoona relinquished the case to the FBI. Jorgensen claims that Streeter arrived late and added to the generally menacing atmosphere when he entered the interview room, unstrapped a gun, and hung it on a peg. Oxler and Streeter deny this. They recall that Streeter was there from the beginning and that they did not display weapons in Jorgensen's presence.

Oxler denies having made or even discussed any "deals" with Jorgensen. In contrast, Jorgensen testified that "Mr. Oxler told me that they did not want me or my brother. They wanted the higher up people, and if we would tell them everything that's happened, they will not bring no charges against us on the agreement that we were willing to testify against other people." Transcript at 60. Oxler recalls informing Jorgensen of photo identification evidence linking him to the meat trailer theft. See supra at 726. The FBI was planning a sting operation, he explained, since it suspected that "higher-up people" ordered the theft. Oxler testified that he explained the operation to Jorgensen and that he emphasized that full disclosure of his knowledge of the meat trailer theft would benefit him.

Oxler also testified that he explained that although he had evidence that Jorgensen had participated in the theft, he was primarily concerned with investigating the "higher-ups" who purchased the stolen meat trailer from the thieves. Therefore, Jorgensen probably could reduce his inevitable punishment by cooperating. According to Oxler, he routinely offers such advice, which falls short of making deals or promises but implies that leniency is obtainable, to criminal suspects.

Jorgensen listened to Oxler for a few minutes and then requested to confer with Garry Jorgensen. After walking alone to the waiting room and conversing with his brother, Jorgensen returned and discussed the theft with Oxler and Streeter. The two officials then found Jorgensen unusually "talkative." He told them that he and a colleague had received $15,000 for the stolen meat.

Later, Oxler concluded that Jorgensen was not only a willing interviewee, he was "almost a braggart in regard to all his [criminal] activities, and he was indicating * * * other things that were going on that he had knowledge of, [other] ongoing criminal activities." Transcript at 32. Officer Streeter's testimony at the suppression hearing supports Oxler's statement about Jorgensen's self-incriminating "bragging": " * * * he liked to brag about everything he liked to do, and he was trying to be a big time criminal and to impress us * * *. He * * * told us about * * * numerous thefts that he was involved in." Transcript at 52. Streeter also emphasized that Jorgensen "volunteered" the incriminating admissions and "was free to leave the room."

Two weeks after his interview, Jorgensen provided Oxler and Streeter with information that led to the arrest of the perpetrator of an unrelated crime. When Jorgensen was arrested for his participation in the meat trailer theft approximately two years after the interview with Oxler and Streeter, he was shocked to be charged after such a substantial lapse of time. ⁴ He believed his cooperation during and after the 1985 interview had earned him both immunity from prosecution for the meat trailer theft and protection from the "higher-ups." He claims (and Oxler denies) that when the July 19, 1985 interview ended, Oxler's parting words were "go lead a normal life. No charges will be filed against you if you testify." Garry Jorgensen also protested upon his arrest that he thought "a deal had been made" two years earlier.

II. DISCUSSION

We apply a "clearly erroneous" standard of review when assessing a decision by the district court to deny a motion to suppress. United States v. Eisenberg, 807 F.2d 1446, 1449 (8th Cir.1986) (citing United States v. Lewis, 738 F.2d 916, 920 (8th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985)). Therefore, we must affirm unless the decision of the district court is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, in light of the entire record, we are left with a firm and definite conviction that a mistake has been made. United States v. Pantazis, 816 F.2d 361, 363 (8th Cir.1987) (citing United States v. Lewis, 738 F.2d 916, 920 (8th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985)).

Jorgensen appeals the denial of his motion to suppress on three grounds:

(A) He was not adequately advised of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

(B) His confession was involuntary, stemming from promises of leniency and other forms of psychological coercion in violation of the fifth amendment of the United States Constitution.

(C) The July 19, 1985 interview constituted inadmissible plea...