U.S. v. Long, 87-2535

• Decision Date: 20 July 1988
• Docket Number: No. 87-2535,87-2535
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul LONG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 975

852 F.2d 975

57 USLW 2131

UNITED STATES of America, Plaintiff-Appellee, v. Paul LONG, Defendant-Appellant.

No. 87-2535.

United States Court of Appeals, Seventh Circuit.

Argued March 31, 1988.

Decided July 20, 1988.

Mark A. Rose, Peoria, Ill., for defendant-appellant.

Bradley W. Murphy, Asst. U.S. Atty., J. William Roberts, U.S. Atty., Peoria, Ill., for plaintiff-appellee.

Before WOOD, Jr., POSNER and EASTERBROOK, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Paul Long divulged his role in several Tazewell County, Illinois burglaries in exchange for the County's promise that it would do no more than impose a sentence equal and concurrent to that received for several neighboring Fulton County burglaries also committed by Long. The United States, which had no role whatsoever in Long's Tazewell or Fulton County state court prosecutions, later charged him with violating a federal statute prohibiting possession of a weapon by a career criminal, offering as part of its proof Long's Tazewell County disclosure, which had led to the recovery of a stolen gun. Long sought to suppress the statement and the gun, arguing that his Tazewell County disclosure was voluntary for purposes of the state prosecution but involuntary and inadmissible for purposes of the federal prosecution. The district court denied the motion to suppress. Following a bench trial, defendant was convicted and sentenced to a term of eighteen years to run concurrently to the concurrent fifteen-year sentences he had received for his Tazewell County and Fulton County convictions. ¹ We affirm.

I. BACKGROUND

A Fulton County law enforcement officer arrested Long for his suspected role in several Fulton County burglaries. Several hours after his initial arrest (he temporarily escaped and was recaptured) Long admitted, after receiving Miranda warnings, that he had committed three burglaries in Fulton County. The next morning several officers searched Long's residence, discovering items they suspected were stolen. Later in the day, around early evening, several officers from Tazewell County visited Long in the Fulton County jail and told him of the discovery of suspected stolen items at his residence and of the likelihood that charges would also be filed against him in Tazewell and other counties. Long asked that potential charges in all counties be resolved at one time in exchange for his cooperation; the officers declined. Long then proposed that he cooperate with Tazewell County authorities in exchange for the County's promise that his Tazewell County sentence would not exceed the sentence he received in Fulton County and would run concurrently to the Fulton County sentence. After consulting with the Tazewell State's Attorney's Office, the officers agreed, reaffirming that the agreement covered Tazewell and not any other counties. With the agreement consummated, Long proceeded to admit his role in several Tazewell County and several more Fulton County burglaries. He admitted taking a gun in one of the Tazewell crimes, which was found by Fulton County officers during the recovery of property stolen from that county. In state court Long received a sentence of fifteen years for the Fulton County burglaries, and as agreed to, a concurrent sentence of fifteen years for the Tazewell County burglaries.

Subsequently, Long was prosecuted in federal court; possession of a gun by a three-time felon violated federal law. 18 U.S.C.App. Sec. 1202(a) (repealed 1986). An important part of the government's case was Long's disclosure regarding the gun pursuant to his cooperation agreement with Tazewell County. Reasoning that the disclosure was voluntary for federal purposes, the district court admitted Long's statement, and subsequently Long was convicted of the firearms violation.

II. DISCUSSION

Neither Tazewell County nor the United States did anything improper, but Long would like the incriminating evidence suppressed in federal court because of his failure to foresee his federal criminal liability. Long agrees that the deal he made with Tazewell County to provide information regarding burglaries in exchange for a promise regarding the state sentence he would receive was properly carried out and that the County in no way did anything injurious of his rights: Tazewell did nothing to hide any federal criminal prosecution he might face, or mislead him, and made it clear that the agreement was limited to the consequences he might face in Tazewell County proceedings. He also agrees that the federal government in no way participated in or was aware of the Tazewell County activities and did nothing to deceive him or to elicit his statement regarding the gun. Long's claim is that his statement to state officers was not voluntary for purposes of a federal prosecution because he was not warned of the potential federal criminal charges, even though the state officials were unaware of any such federal consequences.

The situation can be viewed in several ways. The first approach, and that argued by Long, is to view this as a question of whether Long voluntarily confessed. "[T]he Court's confession cases hold that the ultimate issue of 'voluntariness' is a legal question requiring independent federal determination." Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 450, 88 L.Ed.2d 405 (1985); United States v. Hawkins, 823 F.2d 1020, 1022-23 & n. 1 (7th Cir.1987). Therefore we conduct a de novo review of voluntariness following the legal standard set out in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Under Schneckloth we consider the totality of the circumstances:

"Is the confession a product of an essentially free and unconstrained voice by his maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process."

In determining whether a defendant's will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances--both the characteristics of the accused and the details of the interrogation. Some of the factors taken into account have included the youth of the accused; his lack of education; or his low intelligence; the lack of any advice to the accused of his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment such as the deprivation of food or sleep. In all of these cases, the Court determined the factual circumstances surrounding the confession, assessed the psychological impact on the accused, and evaluated the legal significance of how the accused reacted.

412 U.S. at 225-26, 93 S.Ct. at 2046-47 (citations omitted) (quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961)). Following only the criteria set out in Schneckloth, the conclusion that Long's statement was voluntary is inescapable. The questioning was conducted in a cooperative manner; Miranda warnings were given; Long initiated the discussion regarding an agreement; Long had several prior convictions; he had received Miranda warnings on numerous other occasions and is not particularly young; and he was not punished or coerced. However, this case also requires that, in addition to the criteria listed above, we consider that a defendant's will can be overborne by inducement. See Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 203, 50 L.Ed.2d 194 (1976) (per curiam); Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 186-87, 42 L.Ed. 568 (1897). The most far-reaching statement regarding the relationship between voluntariness and inducement is found in Bram, a case cited by Long. In an oft-repeated quote the Bram Court stated, in part, that a confession is not voluntary if it is "obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence." 168 U.S. at 542-43, 18 S.Ct. at 186-87. Over seventy years later the Court explained Bram:

Bram dealt with a confession given by a defendant in custody, alone and unrepresented by counsel. In such circumstances, even a mild promise of leniency was deemed sufficient to bar the confession, not because the promise was an illegal act as such, but because defendants at such times are too sensitive to inducement and the possible impact on them too great to ignore and too difficult to assess.

Brady v. United States, 397 U.S. 742, 754, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970). Bram has not been liberally applied. It does not establish a per se rule; a review of the totality of the circumstances is still required and any inducement offered to the defendant is but one fact, albeit an important one, in that analysis. See United States v. Reynolds, 532 F.2d 1150, 1159-60 (7th Cir.1976); United States v. Springer, 460 F.2d 1344, 1347 (7th Cir.), cert. denied, 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1972). The cooperative atmosphere and the fact that Long initiated negotiations militates against finding the situation here particularly coercive, see Reynolds, 532 F.2d at 1157, notwithstanding that Long was not represented by counsel. As the district court found, Long is a person experienced in the criminal justice system who is attempting to strike the best possible bargain while his leverage remained high. It appears that Tazewell County was anxious to recover the items taken by Long as quickly as possible and was willing to strike a cooperation agreement to expedite the recovery. Any delay by Long may have frustrated the County's purpose and lessened his bargaining power. Long acted quickly in order to obtain the best possible deal and not because he was an overly sensitive defendant susceptible to inducement, like that which Bram sought to protect.

In practice, a more accurate statement of the rule for those non-extraordinary cases falling outside of...