U.S. v. Lebrun

• Decision Date: 03 October 2002
• Docket Number: No. 01-4005.,01-4005.
• Citation: 306 F.3d 545
• Parties: UNITED STATES of America, Appellant, v. Michael Edward LeBRUN, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

306 F.3d 545

UNITED STATES of America, Appellant, v. Michael Edward LeBRUN, Appellee.

No. 01-4005.

United States Court of Appeals, Eighth Circuit.

Submitted: May 14, 2002.

Filed: October 3, 2002.

COPYRIGHT MATERIAL OMITTED

Matt J. Whitworth, Asst. U.S. Atty., argued, Kansas City, MO, for appellant.

Glenn E. Bradford, argued, Kansas City, MO (Edward F. Walsh, on the brief), for appellee.

Before HANSEN, Chief Judge, MORRIS SHEPPARD ARNOLD, Circuit Judge, and PRATT,¹ District Judge.

PRATT, District Judge.

The United States of America appeals from the district court's² ruling suppressing all out-of-court statements made by Michael Edward LeBrun on September 21, 2000. We affirm the district court's ruling.

I.

In January 1968, Michael Edward LeBrun and United States Naval Ensign Andrew Muns were shipmates aboard the U.S.S. Cacapon, a Navy fueling vessel. Both men were assigned to work in the ship's disbursement office, an area where cash was kept in a safe for purposes of paying the ship's personnel. Sometime in the late evening hours of January 16, or in the early morning hours of January 17, 1968, while the ship was moored in Subic Bay, Philippines, Ensign Muns disappeared. Shortly after Muns' disappearance, approximately $8600 was found to be missing from the disbursement office. Naval investigators conducted an investigation and concluded that Muns had stolen the money from the disbursement office and deserted the Navy.

Having never believed the conclusion of the Navy, Muns' sister convinced Special Agent Peter Hughes of the Naval Criminal Investigative Service, Cold Case Homicide Unit (NCIS), to reopen the investigation in August 1998. On four separate days in November 1999, NCIS agents interviewed LeBrun concerning his involvement in Muns' disappearance. On the first occasion, November 17, 1999, Special Agent Hughes told LeBrun that he was conducting security clearance background investigations on people that LeBrun worked with in the military. He asked LeBrun to meet him at the Gardner, Kansas Police Department. Once there, Hughes informed LeBrun that the true purpose of the meeting was to discuss the disappearance of Muns. During the nearly five hour interview, LeBrun provided vague answers and agreed to submit to a polygraph examination. Two days later, on November 19, 1999, LeBrun drove himself to the Kansas Bureau of Investigation to take a polygraph examination. Upon his arrival, LeBrun was informed of his Miranda rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). No polygraph examination was taken that day, but a four hour interview was conducted. LeBrun returned to the Kansas Bureau of Investigation on November 20, 1999, was again given his Miranda rights, and again consented to speak to investigators. On this occasion, he stated that he may have repressed memories regarding Muns' disappearance and asked Hughes if he knew of a therapist who could help him reveal the memories. Again, no polygraph examination was administered. On November 21, 1999, LeBrun met with investigators at the Olathe, Kansas Police Department. LeBrun was advised of his Miranda rights, executed a Civilian Suspect Acknowledgment and Waiver of Rights Form, and proceeded to participate in an interview with investigators. At the end of the interview, LeBrun indicated that he wanted to attempt to recover his repressed memories and suggested another interview in approximately three weeks. On December 16, 1999, Special Agent Hughes called LeBrun to inquire as to his progress. LeBrun relayed that he had not recovered any repressed memories since the last interview. Hughes had no further contact with LeBrun until after his confession on September 21, 2000.

In September 2000, Hughes and two other NCIS agents, Special Agents Early and Grebas, decided to talk to LeBrun again. The agents believed that LeBrun was the primary suspect in Muns' disappearance. Agent Hughes indicated that a significant amount of planning took place prior to the interview in an effort to make it as formal a process as possible. Agents planned in advance how LeBrun would be transported to the interview, who would conduct the interview, and whether or not the Miranda warnings would be read to him³. They also arranged to have enlarged photos of LeBrun's family and house, the U.S.S. Cacapon and LeBrun's shipmates, and other scenes from LeBrun's life on the walls in the interview room.

On September 21, 2000, Special Agent Early and Corporal Hunter of the Missouri Highway Patrol drove to LeBrun's office, without prior notice, in plain clothes. Corporal Hunter identified himself to LeBrun, told him they were conducting an investigation, and asked LeBrun to accompany them. LeBrun asked what the investigation was about. Corporal Hunter told him that they could not tell him what it was about, but that it had nothing to do with his family. LeBrun, believing that it had to do with certain potentially illegal activities of his employer, agreed to accompany the officers.

Once outside, LeBrun was told by the officers that they would give him a ride. LeBrun offered to drive himself, but the officers told him they would prefer he ride with them. LeBrun rode to the Highway Patrol Station in the front passenger seat of an unmarked highway patrol car. Both Agent Early and Corporal Hunter carried firearms, however, LeBrun was only aware that Corporal Hunter was armed.

Once at the Highway Patrol Station, LeBrun was told that he was not under arrest, and that he was free to terminate the interview and leave the building at any time. Agent Early, who had not yet identified himself as an NCIS investigator, advised LeBrun that he was subject to audio and video recording anywhere in the building. Agent Early then led LeBrun to the interview room. The walls of the window-less room were covered with the enlarged photos from LeBrun's life. LeBrun was seated in a straight chair with his back to the wall. Once seated, Agent Early identified himself as an NCIS investigator. Agent Grebas entered a short time later and began the interview. Agents Early and Grebas sat in chairs with armrests and rollers a few feet in front of LeBrun. No furniture was positioned between the agents and LeBrun. The agents were not armed while in the interrogation room.

Agents Early and Grebas admittedly lied to LeBrun about the level of evidence they had implicating him in Muns' disappearance. Early during questioning, Agent Early told LeBrun, "There is absolutely no doubt that you were responsible for Ensign Muns death. Absolutely no doubt about it. I know you know that. I know you believe it. I believe it."⁴ The agents also intimated that they had two eyewitnesses to Muns' death and a suicide note written by a third individual that implicated LeBrun in Muns' death. Agent Early indicated that the only issue he and Agent Grebas were interested in was whether Ensign Muns' death was premeditated or spontaneous. Agent Early also told LeBrun, "[W]e have information and we have evidence that is going to result in grand jury proceedings."⁵ The agents told LeBrun that they were ready to proceed with a premeditated murder charge against him, that he would be extradited to Alaska, his reputation would be destroyed, his family's reputation would be destroyed, and he would be financially ruined. The Agents also told LeBrun that Muns' family would file a civil suit against him and asked LeBrun, "How do you think [Jon Benet Ramsey's] family is living today."⁶ The agents advised LeBrun that Ensign Muns' family was present at the Highway Patrol Station and were prepared to forgive him if he admitted to a spontaneous killing.⁷

After approximately thirty-three minutes, LeBrun confessed to the murder of Ensign Muns. He stated that Muns walked into the disbursement office while he was stealing money from the ship's safe. According to LeBrun, he panicked and killed Muns. LeBrun then went on to describe how he disposed of the victim's body and eventually reenacted the murder with Agent Early in the role of the victim. After the reenactment, LeBrun asked to use the bathroom and requested a cigarette break. Special Agent Early accompanied LeBrun to the restroom and then escorted him outside for a cigarette.⁸ After reentering the station, LeBrun was asked if he wanted to apologize to Muns' sister. She entered the interview room, along with Special Agent Billington of NCIS who represented to LeBrun that he was Muns' brother. Agents Early and Grebas knew that LeBrun was recovering from cancer and told him that the agent posing as Muns' brother had advanced cancer and had only a short time to live. Agent Billington told LeBrun that he wanted to find out everything about his "brother's" death. LeBrun became emotional and apologized to Muns' sister for his death. He asked if he could maintain contact with the family as he uncovered more memories about the death, but was advised that he should communicate through NCIS agents. In total, the interview lasted approximately two hours. At its conclusion, LeBrun consented to a search of his home. Agents Early and Grebas drove LeBrun home and conducted the search. LeBrun was not arrested that day, but was later arrested and indicted for felony murder.

LeBrun moved to suppress inculpatory statements made during the interview. LeBrun claimed that he was subjected to a custodial interrogation without the benefit of Miranda warnings and that his confession was involuntary. The Government argued that LeBrun's confession was voluntary and that he was not in custody, thus no Miranda warning was required. The district court concluded that all but two of the factors outlined in United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990), weighed in favor of a finding that LeBrun was in custody and that LeBrun's confession was inadmissible based on the failure to advise LeBrun of his Miranda rights. The district court also found LeBrun's confession to be...