U.S. v. Rutledge

• Decision Date: 26 April 1990
• Docket Number: No. 89-2608,89-2608
• Citation: 900 F.2d 1127
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roger RUTLEDGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1127

900 F.2d 1127

UNITED STATES of America, Plaintiff-Appellee, v. Roger RUTLEDGE, Defendant-Appellant.

No. 89-2608.

United States Court of Appeals Seventh Circuit.

Argued Jan. 18, 1990.

Decided April 26, 1990.

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

Patrick W. Martin, Quinn, Johnston, Henderson & Pretorius, Peoria, Ill., for defendant-appellant.

Before CUMMINGS, POSNER, and MANION, Circuit Judges.

POSNER, Circuit Judge.

The principal question presented by this appeal is the voluntariness of a confession. After selling a modest quantity of cocaine (9.47 grams, 83 percent pure) to an undercover agent, Roger Rutledge was indicted by a federal grand jury and then arrested by federal officers and placed in custody in the federal courthouse in Chicago to await his initial appearance before a magistrate. While they were waiting, the officers gave Rutledge, both orally and in writing, the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Rutledge initialed each warning and also signed a waiver of his Miranda rights; the voluntariness of the waiver is not in question. The officers then asked Rutledge whether he would be willing to give them a statement. There is disagreement over the exchange that followed. Rutledge testified: "I asked them if the things I was saying was incriminating myself and they kept saying 'No.' " An officer testified: "He asked me about his cooperation. The question was ... [whether] any cooperation that he gave us would be helpful, and I responded by saying that all cooperation is helpful." The district judge, who held that the defendant's confession (which followed this exchange) was voluntary, more or less accepted the government's version, for he said: "I'm sure there was a conversation or a question that he asked concerning how it [anything he told the officers] would be used, and he was told that his cooperation would be helpful." At the same time, the judge acknowledged that the statement was, at least in hindsight, false; as we are about to see, the cooperation that Rutledge tendered by confessing "helped" him to a sentence four to six times longer than he would have received had he kept mum.

Pursuant to a plea agreement in which Rutledge agreed to cooperate with the government and the government agreed to drop one of the charges against him and to bring his cooperation to the attention of the sentencing judge, Rutledge pleaded guilty to the sale for which he had been arrested. The confession he had made after being arrested, however, had revealed that he had dealt in a substantially larger quantity of drugs than the government had suspected or had charged him with dealing, and this revelation that he had engaged in criminal conduct related to the offense to which he had pleaded guilty increased his sentencing exposure under the Sentencing Guidelines from between 12 and 18 months in prison to between 57 and 71 months. The judge sentenced him to 71 months. The appeal challenges the propriety of the judge's relying on the confession to jack up Rutledge's sentence.

We are bound by the judge's finding of who said what; that is a determination of credibility, and can rarely be disturbed on appeal--and not in this case. There is nothing inherently incredible about the officer's version of what was said, though it required some prompting to get him to say it. But we make an independent judgment as to whether, all circumstances considered, the confession that Rutledge made after waiving his right to remain silent was voluntary and therefore admissible. Colorado v. Connelly, 479 U.S. 157, 169-70, 107 S.Ct. 515, 523-24, 93 L.Ed.2d 473 (1986).

United States v. Hawkins, 823 F.2d 1020, 1022 (7th Cir.1987), is the authority in this circuit that the appellate court must determine for itself the voluntariness of a confession. The soundness of the holding has been questioned within the circuit, however, Wilson v. O'Leary, 895 F.2d 378, 383 (7th Cir.1990); Weidner v. Thieret, 866 F.2d 958, 961 (7th Cir.1989); Sotelo v. Indiana State Prison, 850 F.2d 1244, 1253-55 (7th Cir.1988) (concurring opinion), and both Wilson and Weidner say the holding is open to reexamination. Although it is not unheard of to require an appellate court to make a finding of fact, Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), it is odd. Its oddness is only partly dispelled by observing that whether a confession is voluntary is not really a fact, but a characterization. There is indeed no "faculty of will" inside our heads that has two states, on and off, such that through careful reconstruction of events the observer can determine whether the switch was on when the defendant was confessing. But merely to observe that voluntariness is not a fact does not answer the question whether the determination of voluntariness should be made by the trial judge, by the jury (if there is one), or by the appellate court. Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), holds, it is true, that in a federal habeas corpus proceeding brought by a state prisoner the district judge must make an independent determination of whether the prisoner's confession had been voluntary, rather than deferring to the state court's determination, as 28 U.S.C. Sec. 2254(d) requires in the case of findings of fact. But based as it is on an interpretation of the habeas corpus statute, Miller casts only an oblique ray of light on the question whether a court of appeals in a federal criminal case should determine the voluntariness of a confession. Since the determination will vary with the circumstances of the case, uniformity of decision--an important goal of appellate decision-making--may be neither attainable nor important. And as noted in Bryan v. Warden, 820 F.2d 217, 219-20 (7th Cir.1987), Miller is in considerable and unfruitful tension with the equally well established principle that the voluntariness of a waiver of Miranda rights and of other rights is a question of fact governed by the clearly erroneous rule of appellate review.

But this is all by the way. The government (as if oblivious to our opinions even when they are favorable to it) does not question the validity of Hawkins, and we must therefore make an independent determination of the voluntariness of Rutledge's statement. It is a task complicated by the fact that courts have not been successful in devising a standard that will determine in a consistent fashion when confessions should be excluded on grounds of involuntariness. Of course if the confession is unreliable, it should go out, along with other unreliable evidence. It is on this basis that confessions extracted by torture are excluded. But in most cases in which a confession is sought to be excluded because involuntary, there is little likelihood that the inducements placed before the defendant were so overpowering as to induce an untrue confession. The courts in such cases retreat to the proposition that a confession, to be admissible, must be the product of a free choice. Watts v. Indiana, 338 U.S. 49, 53, 69 S.Ct. 1347, 1357, 93 L.Ed. 1801 (1949) (plurality opinion), illustrates the approach, but it is just the faculty of will approach, and, as the courts are beginning to suspect, Colorado v. Connelly, supra, 479 U.S. at 170, 107 S.Ct. at 523, it leads nowhere. Taken seriously it would require the exclusion of virtually all fruits of custodial interrogation, since few choices to confess can be thought truly "free" when made by a person who is incarcerated and is being questioned by armed officers without the presence of counsel or anyone else to give him moral support. The formula is not taken seriously. Connelly may have driven the stake through its heart by holding that a confession which is not a product of the defendant's free choice--maybe he was so crazy, retarded, high on drugs, or intoxicated that he did not even know he was being interrogated--is admissible so long as whatever it was that destroyed the defendant's power of choice was not police conduct. In any event, very few incriminating statements, custodial or otherwise, are held to be involuntary, though few are the product of a choice that the interrogators left completely free.

An alternative approach, which is implied by Connelly and may well describe the courts' actual as distinct from articulated standard, is to ask whether the government has made it impossible for the defendant to make a rational choice as to whether to confess--has made it in other words impossible for him to weigh the pros and cons of confessing and go with the balance as it appears at the time. This approach, sketched in Weidner v. Thieret, supra, 866 F.2d at 963-64, implies, for example, that if the government feeds the defendant false information that seriously distorts his choice, by promising him that if he confesses he will be set free, or if the government drugs him so that he cannot make a conscious choice at all, then the confession must go out. Rutledge appeals to this standard in contending that he could not make a rational choice whether to confess unless he knew whether the confession would expose him to a heavier sentence that the government interfered with his choice by falsely stating that cooperation could only help, and not hurt, him; that in short the false statement...