U.S. v. Miller

• Decision Date: 07 June 2006
• Docket Number: No. 05-2978.,05-2978.
• Citation: 450 F.3d 270
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Taryll MILLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

450 F.3d 270

UNITED STATES of America, Plaintiff-Appellee, v. Taryll MILLER, Defendant-Appellant.

No. 05-2978.

United States Court of Appeals, Seventh Circuit.

Argued April 19, 2006.

Decided June 7, 2006.

Barry D. Glickman (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Linda M. Wagoner (argued), Angola, IN, for Defendant-Appellant.

Before COFFEY, EASTERBROOK, and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge.

Taryll Miller was convicted of distributing cocaine and sentenced to 300 months' imprisonment. He contends that statements he made to the police should have been suppressed as involuntary, but the district court's findings of fact make that argument frivolous. Miller was twice given Miranda warnings before saying anything, and the district court concluded that the police did not engage in any coercive tactics that would spoil the voluntariness of the statements Miller made in his car and at his home. Miller contends that the police threatened to arrest his girlfriend and put their child in foster care if he did not confess; the judge found otherwise, and that conclusion is not clearly erroneous.

According to Miller, the district judge acted inconsistently by excluding statements he made at the police station while allowing the prosecutor to use the statements he had made earlier in his car and at his home. The judge concluded that, at the station, the police had threatened to arrest him and his girlfriend if he asked for an attorney or exercised his right to remain silent, and that this threat made his statements involuntary. There is no factual inconsistency: the judge concluded that the threat had been made at the police station but not earlier. See United States v. Adeyeye, 359 F.3d 457, 462 (7th Cir.2004). And if there is legal inconsistency, Miller is the beneficiary, because the judge should have allowed all of the statements to be admitted into evidence.

The police offered Miller a way to retain his freedom: come clean and cooperate in the investigation of his suppliers and customers. If Miller chose silence plus counsel, implying an adversarial stance — as the police told him he had every right to do — the natural consequence was immediate custody and prosecution for Miller and his girlfriend. The police had probable cause to arrest them both, for the house they shared contained not only illegal drugs but also illegal weapons (including an AK-47 assault rifle). Miller chose to pledge cooperation and both were left at liberty, just as the police had promised. Miller was not prosecuted until after he reneged on his pledge to help the investigation.

A choice between cooperation and freedom, on the one hand, and silence followed by custody and prosecution, on the other, is a common one. This is the real choice many suspects face whether or not the police lay it out it in so many words; clear articulation of the options makes a choice better informed and thus more rather than less voluntary. That's why we held in Johnson v. Trigg, 28 F.3d 639 (7th Cir. 1994), that a promise to release the suspect's mother from custody if he confesses does not make his statement involuntary; if the police have good ground for holding the mother, the information adds to the options at the suspect's disposal. Cf. Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). Suspects are not entitled to full information, see Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), but can't complain when they get it and learn that some of the options are unpalatable.

An objectively unwarranted threat to arrest or hold a suspect's paramour, spouse, or relative without probable cause could be the sort of overbearing conduct that society discourages by excluding the resultant statements. See Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963) (which we understood in Johnson to demonstrate that hostage-taking is unduly coercive). But a factually accurate statement that the police will act on probable cause to arrest a third party unless the suspect cooperates differs from taking hostages. Cf. Hartman v. Moore, ___ U.S ___, 126 S.Ct. 1695, ___ L.Ed.2d ___ (2006) (probable cause for criminal accusation defeats a claim for damages based on retaliatory prosecution). Miller has not given us any reason to doubt that the police accurately stated what they would do if he clammed up, and he does not deny that the Constitution would have allowed them to carry out that plan, for they had probable cause to arrest both Miller and his girlfriend. This is not to say that candor always is essential; a modicum of trickery is tolerable during criminal investigations. See United States v. Ceballos, 302 F.3d 679, 694-95 (7th Cir.2002); Holland v. McGinnis, 963 F.2d 1044, 1055 (7th Cir.1992); United States v. Rutledge, 900 F.2d 1127, 1130-31 (7th Cir.1990). How far agents may go to mislead is not in question here, however, for they told Miller the (unwelcome) truth.

Requiring the police to keep their plans secret could not help suspects: if Miller had been unable to make a deal by offering information and cooperation, then both adult occupants of the place where the drugs and guns were found could have been arrested; their arrests would have made it necessary to institutionalize their child or place him in foster care unless relatives were available and willing to assist. Miller was able to keep his girlfriend and child together by providing information and a promise of cooperation. The choice that the police extended — cooperate and remain free, or be silent and enter custody together with the confederate in his household — made him better off than official reticence and his own ignorance of consequences would have done. An offer that makes the recipient better off cannot be condemned as coercive. See Henn v. National Geographic Society, 819 F.2d 824 (7th Cir.1987). It would be unthinkable to have a legal rule requiring the police to say, in response to a suspect's inquiry: "We are forbidden to tell you what will happen to you, your girlfriend, and your child if you decline to cooperate."

Now we turn to the penalty for Miller's crimes. When imposing sentence, the district judge took into account testimony at another trial. The informant who led the police to Miller was murdered, and Miller's uncle was convicted of that crime. The district court considered the transcript of the uncle's testimony at that trial. Although the transcript is not in the appellate record — a shortcoming for which Miller is responsible, see Fed. R.App. P. 10(a) — the appellate briefs tell us that Miller's uncle named him as an accessory in the murder. Miller contends that the court's consideration of this transcript violates the Constitution, because the uncle was not subject to cross-examination at his sentencing. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). But Crawford rests on the confrontation clause of the sixth amendment, which the Supreme Court has held does not apply to sentencing. Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). We therefore concluded in United States v. Roche, 415 F.3d 614, 618 (7th Cir.2005), that Crawford does not make hearsay inadmissible once guilt has been established.

Nor does the combination of Crawford with United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), change the rules of evidence at sentencing. See United States v. Luciano, 414 F.3d 174, 179 (1st Cir.2005); United States v. Martinez, 413 F.3d 239, 243-44 (2d Cir. 2005); United States v. Brown, 430 F.3d 942, 943 (8th Cir.2005). The remedial portion of Booker deprives the Sentencing Guidelines of their quality as "laws," a step that enables judges to resolve factual disputes as they did before that decision. See United States v. Watts, 519 U.S. 148 117 S.Ct. 633, 136 L.Ed.2d 554 (1997). By statute, "[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." 18 U.S.C. § 3661. Judges should not lean on unreliable hearsay, but testimony in another trial, subject to cross-examination in open court, is among the most reliable kinds of hearsay. Miller was free to call his uncle to the stand in his own sentencing if he wanted to pursue this subject, but he chose not to do so; perhaps he thought that this would open the door to details that he preferred the judge not to learn. Nor did Miller offer any other evidence on the subject of the informant's murder, or ask the United States to produce any person for examination as a hostile witness. The court offered him an opportunity to test his uncle's statements in a way that could sift fact from fiction; the decision not to use this opportunity squelches Miller's argument based on the due process clause. See United States v. Atkin, 29 F.3d 267 (7th Cir.1994). His argument rests (as it must given his decision not to put his uncle's testimony in the appellate record) on the proposition that hearsay never can be used in sentencing, and that proposition is wrong.

Even without treating Miller as an accomplice to murder, the Sentencing Guidelines prescribed a range of 324 to 405 months. The district judge refused to apply the Guidelines as written, however. Following 21 U.S.C. § 841(b)(1)(B), which was enacted in 1986, the Guidelines have treated 1 gram of crack cocaine the same as 100 grams of powder cocaine since their inception. In 1995 the Sentencing Commission announced amendments that would have equated the sentences for powder and...