U.S. v. Lewis, 87-1001

• Citation: 833 F.2d 1380
• Decision Date: 11 December 1987
• Docket Number: No. 87-1001,87-1001
• Parties: 24 Fed. R. Evid. Serv. 432 UNITED STATES of America, Plaintiff-Appellant, v. Jerri C. LEWIS, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1380

833 F.2d 1380

24 Fed. R. Evid. Serv. 432

UNITED STATES of America, Plaintiff-Appellant, v. Jerri C. LEWIS, Defendant-Appellee.

No. 87-1001.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 16, 1987.

Decided Dec. 11, 1987.

Jeffrey W. Lawrence, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellant.

Barry J. Portman, Federal Public Defender, San Francisco, Cal., for defendant-appellee.

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

Before CHOY, ALARCON and O'SCANNLAIN, Circuit Judges.

ALARCON, Circuit Judge:

The government appeals from the district court's order suppressing a confession on motion of defendant Jerri C. Lewis (Lewis) in this bank robbery prosecution. We reverse.

The factual issues concerning the motion to suppress were submitted to the court in the declarations filed by each party. The district court stated at the hearing on the motion to suppress that it would resolve all controverted facts in favor of the government for purposes of its ruling. The district court concluded "[j]ust on the basis of the facts as put forward in the government's memorandum and affidavit, that the first statement was not knowing and voluntary." The court also stated that it had reviewed the facts "in the light most favorable to the government." Ordinarily, we review conflicting evidence in the light most favorable to the prevailing party in the district court. Here, however, the district court stated it was "discounting" the defendant's claims about what was said to her by the agents and was "just going on the basis of what is in the agent's papers." Our task then is to determine whether the district court's oral findings are supported by the evidence presented in the declaration submitted by the government.

STATEMENT OF FACTS

A. Evidence Produced by the Government

On October 10, 1986, Michael E. Degnan, a Special Agent of the Federal Bureau of Investigation (Degnan), identified Lewis as the person depicted in photographs taken during the robbery of a bank on October 9, 1986. Degnan recognized Lewis because he had been the case agent in a prosecution wherein she was charged and convicted of bank robbery. Lewis was arrested on October 20, 1986.

On October 21, 1986, Degnan and Special Agent Fujita went to the prison ward of the San Francisco General Hospital to interview Lewis. When the agents arrived, they learned for the first time from the hall nurse that Lewis had just returned from surgery for removal of an abscess on her left shoulder caused by the injection of narcotics. The nurse granted them permission to see Lewis. The agents decided to enter and tell her that they had come to interview her but would return the next day because she had just undergone surgery.

Lewis was asked if she remembered Degnan. She replied that she did. Agent Fujita then inquired whether Lewis knew him. She replied that he was "the individual who couldn't run." On October 15, 1986, Agent Fujita had attempted to catch up with Lewis.

Lewis appeared to be in pain. Special Agent Degnan remarked: "you look kind of rough." He asked her how she was feeling. She replied: "O.K."

Degnan told her that they had come to talk to her upon learning that she had finally been arrested. Degnan advised her that he had found out that she had just come out of surgery. Lewis was told that the agents would come back the next day to talk to her about the robberies. Degnan asked her whether she was going to "come clean." Lewis said that she would. Degnan asked her how many they would talk The agents returned the next day, October 22, 1986, to the hospital prison ward to question Lewis. The hall nurse informed them that Lewis was alert and not under any medication which would affect her ability to be interviewed. Lewis appeared to be alert and looked much better than she had the day before. Agent Degnan asked her how she was feeling. She stated "okay."

                about.  She responded, "three."    Degnan asked her about the number of robberies to find out if she had committed more than those known by the authorities.  If Lewis had stated that she had committed additional robberies, they would have searched their files prior to the interview the next day.  The entire period of time spent with Lewis was approximately two minutes
                

Special Agent Fujita informed her that before she could be interviewed, they had to advise her of her rights. He gave her a copy of the FO 395 Advice of Rights and Waiver Form to read along with him. He then read the form to her. She signed the form to indicate that she waived her right to counsel and was willing to make a statement and answer questions. She also acknowledged by her signature the fact that "[n]o promises or threats have been made to me and no pressure or coercion of any kind has been used against me."

Lewis initially admitted committing three robberies, two of the same bank. As the interview progressed, Special Agent Fujita showed her a photograph of the New Montgomery Street bank robbery. She stated that this photograph was not very good and then requested that she be shown the other photographs. She was then shown a photograph of the October 9, 1986 bank robbery and stated that these photographs were not very good and she would consider taking the case to trial. No reference was made to her statements of the previous day during this conversation.

B. Personal Observations of the Court

Lewis filed a motion to suppress the statements she made on October 21, 1986 and October 22, 1986. She argued in her memorandum of points and authorities filed in support of her motion that her October 21, 1986 statement was involuntary because she was a "heroin addict suffering from the effects of drug withdrawal [and] was questioned in her hospital bed hours after she had awakened from a general anesthetic administered during surgery." She also claimed that suppression of the October 22, 1986 statement was compelled because it was obtained through "exploitation of the involuntary admission made the previous day."

The court scheduled argument on the motion to suppress the statements for December 18, 1986. Prior to hearing argument on that date from counsel, the court stated that "the first statement was not knowing and voluntary." Before stating its conclusion that the confession was involuntary, the court said: "Now, anybody that has ever been under a general anesthetic following an operation knows that as you come out of a general anesthetic you are not accountable for what you say and do."

After advising the parties of its view of the facts and the law, and prior to hearing from counsel, the court explained: "[N]ow that is my reaction to the facts before me." The court then commented: "I will be glad to hear ... any evidence that anybody wants to present whenever the defendant appears." (Emphasis added).

Lewis' counsel advised the court he was "prepared to submit, in view of your honor's comments...." The court then permitted the Assistant United States Attorney to speak. The government counsel began his argument by stating that the evidence contained in Degnan's declaration showed that during the first statement on October 21, 1986, Lewis "was at the time aware of what was going on and was able to talk to the agents." The court interrupted the prosecutor's argument regarding the legal effect of the brief conversation on October 21, 1986, on the admissibility of the confession obtained the following day, to inquire whether it was his contention that the earlier statement was voluntary or involuntary. The prosecutor replied: "My contention is that the first statement was Well, you see, I can't go with you on that. One of the reasons why, and I am frank to say, I am influenced by personal experience. I mean, I represent to you that I have never been a heroin addict and I have never experienced what it is like to come out from under heroin, but I have come out from under an anesthetic. And people have told me that--and I seem to be perfectly all right--and people have told me that I said the most incredible things during the few first six hours or so after I came out of a general anesthetic. And I have had the same experience related by other people.

                voluntary."    The court then made the following comment
                

You are not accountable for what you do or say for quite a number of hours after you come out of a general anesthetic. So I cannot find that a person who is both withdrawing from heroin and coming out from under a general anesthetic and is under arrest and confronted by FBI agents is in a position to make a voluntary and knowing statement at that time.

Later in the hearing the court observed:

As I said, I think that when agents go into the hospital room of a woman who is coming out from heroin and coming out from a general anesthetic and asks a question on the merits, whether you call it trick or whatever, they are taking advantage of her. They should have never asked the question. It was a clear case of not asking. And I think it was an abuse of the proper procedures in this case. And so I am not saying it was coerced. But I think it was abusive and clearly improper. And I would have to, therefore, treat the first statement as having been voluntary--involuntary. Excuse me.

ANALYSIS

A. Standard of Review

The government seeks reversal of the order of suppression of the October 22, 1986 statement on alternative grounds. First, the government argues that the testimony accepted as true by the district court does not support the conclusion that the October 21, 1986 statement was involuntary. Alternatively, the government contends that even it is assumed that the October 21, 1986 admission was involuntary, the confession obtained from Lewis on October 22, 1986, after a written waiver of her Miranda rights, was admissible because it was sufficiently attenuated from the statement given on the previous day. The government does not intend to offer...