U.S. v. Tingle

• Citation: 658 F.2d 1332
• Decision Date: 13 October 1981
• Docket Number: No. 80-1704,80-1704
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Katrina Ann TINGLE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1332

658 F.2d 1332

UNITED STATES of America, Plaintiff-Appellee, v. Katrina Ann TINGLE, Defendant-Appellant.

No. 80-1704.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 9, 1981.

Decided Oct. 13, 1981.

John L. Cleary, San Diego, Cal., for defendant-appellant.

Roger W. Haines, Jr., Asst. U. S. Atty., argued, M. James Lorenz, Charles Gorder, Asst. U. S. Atty., on the brief San Diego, Cal., for plaintiff-appellee.

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

Before PREGERSON and REINHARDT, Circuit Judges, and HARDY, ^* District Judge.

REINHARDT, Circuit Judge.

Katrina Ann Tingle appeals her conviction of conspiracy to purloin and purloining funds from a federal credit union, in violation of 18 U.S.C. §§ 371, 657. Tingle argues that her confession, which supported the conviction, was involuntary.

I

On May 21, 1980, Tingle, 21, was an employee of the San Diego Navy Federal Credit Union. Early that morning, Tim Hurley, an employee of the credit union, arrived for work and found Tingle bound and gagged in the back room of the office. The credit union safe was open, and all the money had been removed. Tingle told Hurley that she had been attacked by an unknown assailant who had tied her up and stolen the money from the safe.

Hurley called the local police who arrived and questioned Tingle. The Federal Bureau of Investigation (FBI) was notified of the "robbery." FBI Special Agents Sibley and Ayers arrived at the credit union, spoke to the local police officer, and escorted Tingle to their automobile parked in front of the credit union in order to speak with her privately.

Tingle sat in the back seat of the automobile with Sibley while Ayers sat in the front seat. The interrogation which followed lasted for approximately one hour. Tingle repeated to the special agents what she had told the local officer. Sibley gave Tingle a standard FBI Advice of Rights form and asked her to read it aloud. Tingle read the form, indicated that she understood her rights and was willing to answer questions, and signed the written waiver.

Sibley then accused Tingle of lying. He told her that he believed she and her boyfriend had staged the robbery. Tingle denied her involvement. At that point, both agents were firmly convinced that Tingle had staged the "robbery" because of what they viewed as its amateurish commission. Sibley began to explain to Tingle the advantages of cooperating in an effort to get her to tell the truth. He enumerated the crimes of which she might be guilty. He told her that she faced a twenty year sentence for bank robbery, twenty-five years if it was armed robbery, five years for conspiracy, five years for lying to a federal agent, and an additional potential penalty of five years if Tingle were to lie to a grand jury. ¹ Tingle repeatedly maintained her innocence.

Sibley explained that it would be in Tingle's best interest to cooperate. There was some discussion about Tingle's release on her own recognizance during court proceedings. Sibley stated that he would inform the prosecutor if Tingle were to cooperate, or would alternatively inform the prosecutor that she was "stubborn or hard-headed" if she refused. Sibley suggested that it was quite possible that he had been told by Tingle's boyfriend that she was the one responsible for the entire planning and execution of the staged robbery.

At the beginning of the interrogation Sibley had determined that Tingle was the mother of a two-year-old child. In an effort to obtain a confession, Sibley told her either that she would not see the child for a while if she went to prison or that she might not see the child for a while if she went to prison. ² His purpose was to make it clear to her that she had "a lot at stake."

During Sibley's interrogation Tingle began to sob. She was noticeably shaking. She continued to cry for at least ten minutes. She confessed that for a period of two months her boyfriend and a friend of his had formulated a plan to stage the "robbery" of the credit union. Tingle stated that she had gone to work on the morning of May 31st and opened the safe. Her boyfriend then arrived, bound Tingle to a chair, taped her eyes and mouth closed, took the money from the safe, and left.

Prior to trial, Tingle moved to suppress the confession on the ground that it was coerced. The district court denied the motion. On appeal, Tingle argues that the district court erred in admitting the confession. She also asserts that the evidence is insufficient to support her conviction.

II

"(A) defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession ... (citation omitted) and even though there is ample evidence aside from the confession to support the conviction." Jackson v. Denno, 378 U.S. 368, 376, 84 S.Ct. 1774, 1780, 12 L.Ed.2d 908 (1964). The reasons for excluding a coerced confession were explained fully by the Court in Jackson. First, confessions obtained in a coercive manner are likely to be unreliable. More important, involuntary confessions are forbidden

because of the "strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will," Blackburn v. Alabama, 361 U.S. 199, 206-207, (80 S.Ct. 274, 279-80, 4 L.Ed.2d 242) and because of "the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves." Spano v. New York, 360 U.S. 315, 320-21 (79 S.Ct. 1202, 1205-6, 3 L.Ed.2d 1265).

Jackson, 378 U.S. at 386, 84 S.Ct. at 1785.

In order to be voluntary, a confession must be "the product of a rational intellect and a free will." Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960). The fifth amendment secures "the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence." Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). Consequently, a confession "must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence." Id. at 7, 84 S.Ct. at 1493 (quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 186-87, 42 L.Ed. 568 (1897)).

A confession is involuntary whether coerced by physical intimidation or psychological pressure. Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1963). Law enforcement conduct which renders a confession involuntary does not consist only of express threats so direct as to bludgeon a defendant into failure of the will. Subtle psychological coercion suffices as well, and at times more effectively, to overbear "a rational intellect and a free will." As the Supreme Court noted in Malloy, "(w)e have held inadmissible even a confession secured by so mild a whip as the refusal, under certain circumstances, to allow a suspect to call his wife until he confessed." 378 U.S. at 7, 84 S.Ct. at 1493 (citing Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963)).

The government must prove that a confession is voluntary by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972). On appeal, we must "examine the entire record and make an independent determination of the ultimate issue of voluntariness." Beckwith v. United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1 (1976) (quoting Davis v. North Carolina, 384 U.S. 737, 741-42, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966)).

III

Tingle argues that her confession was involuntary because Sibley coerced her into confessing by threatening that she would not see her child for a long time if she did not cooperate and by warning of the long term of imprisonment which could be imposed. She also contends that it was improper for Sibley to promise to seek lenient treatment and early release for her if she did cooperate.

The record simply does not support Tingle's claim that Sibley made any improper promise or agreed to seek her early release. We must examine more closely, however, Tingle's contention that her confession was involuntary as a result of statements which caused her to fear that she would not see her child for a long time if she refused to cooperate.

In Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963), the Supreme Court considered a confession that had been made

only after the police had told her that state financial aid for her infant children would be cut off, and her children taken from her, if she did not "cooperate." These threats were made while she was encircled in her apartment by three police officers and a twice convicted felon who had purportedly "set her up." There was no friend or adviser to whom she might turn. She had had no previous experience with the criminal law, and had no reason not to believe that the police had ample power to carry out their threats.

Id. at 534, 83 S.Ct. at 920. The Court concluded that the confession had been coerced. Id.

In Lynumn, the coercion consisted of the interrogators' express threat that the petitioner's children would be taken away from her if she did not cooperate. In this case, the threat is not as explicit nor as extreme, but the coercive purpose and effect are indistinguishable from that in Lynumn. Agent Sibley recited a virtual litany of the maximum penalties for the crimes of which Tingle was suspected, totaling 40 years imprisonment. He expressly stated, in a manner that could only be interpreted in light of...