United States v. Haak
| Decision Date | 07 March 2018 |
| Docket Number | August Term 2017,No. 16-3876-cr,16-3876-cr |
| Citation | 884 F.3d 400 |
| Parties | UNITED STATES, Appellant, v. John HAAK, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
James P. Kennedy, Jr. (Frank T. Pimentel, Assistant United States Attorney, on the brief), United States Attorney for the Western District of New York, Buffalo, New York, for Appellant.
David R. Addelman, David R. Addelman, P.C., Buffalo, New York, for Defendant–Appellee.
Before: Raggi, Hall, Carney, Circuit Judges.
Defendant John Haak stands indicted in the United States District Court for the Western District of New York (Lawrence J. Vilardo, Judge ; Jeremiah J. McCarthy, Magistrate Judge ) on one count of possession with intent to distribute and distribution of the controlled substance fentanyl resulting in death. See 21 U.S.C. § 841(a)(1), (b)(1)(C). The United States here appeals from the district court's October 18, 2016 order suppressing statements that Haak made to law enforcement authorities in the course of a non-custodial interview on March 4, 2015. See United States v. Haak , 215 F.Supp.3d 218 (W.D.N.Y. 2016). The district court concluded that the statements had been coerced in violation of the Fifth Amendment by a police detective's false promise of immunity from prosecution in return for cooperation. See id. at 231 ; U.S. Const., amend. V. Upon review of the totality of the circumstances as reflected in a videotape recording of the interview at issue, we conclude that Haak's statements cannot be deemed coerced. We, therefore, reverse the challenged suppression order and remand the case for further proceedings consistent with this opinion.
In early March 2015, Hamburg, New York police officers, working on a joint federal-state task force with United States Drug Enforcement Administration ("DEA") agents, were investigating the February 28, 2015 death of James Forness from an apparent overdose of heroin laced with fentanyl. From a review of text messages found on Forness's cell phone, the police had identified defendant John Haak as Forness's likely drug supplier. Accordingly, they contacted Haak and asked him to come to the police station. Haak voluntarily did so on March 4, 2015, driving to the station in his own car and leaving approximately forty minutes later. The parties agree that Haak was never in custody throughout this time.
At the station, Haak met with Detective Sergeant Glenn Zawierucha and another officer not identified in the record. The meeting, which was held in a standard interview room and lasted slightly over one-half hour, was video-recorded. Thus, neither the conversational tone of the encounter, nor the conduct of the participants, nor the actual words spoken are disputed. We nevertheless describe the interview in some detail to facilitate our discussion herein of why it does not manifest coerced statements.
The video recording shows that the officers were dressed in casual street clothes with no weapons visible. Meanwhile, Haak was not handcuffed or otherwise restrained during the interview. Rather, all three men simply sat in chairs across from or perpendicular to one another.
Zawierucha, who conducted the interview, introduced himself, stating both his rank within the Hamburg police department and his assignment to a joint police-DEA task force. Zawierucha told Haak that he wanted to speak with him and that Haak "owe[d] it to [him]self to at least listen to what [the detective] ha[d] to say." Video Recording, Mar. 4, 2015, at 13:20:23.1 Then, even though Haak was not in custody, Zawierucha advised him of certain Miranda rights, first confirming that Haak was familiar with such rights from a prior arrest. See Miranda v. Arizona , 384 U.S. 436, 444–45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (). The detective told Haak that he had (1) "the right to remain silent; you don't even have to talk to me," Video Recording, Mar. 4, 2015, at 13:20:45; (2) the right "to speak with an attorney; you can talk to one if you want before you talk to me; if you can't afford one, one will be provided for you," id. at 13:20:48; and (3) the right "anytime" to "end this whole conversation" and "walk out of here," id. at 13:20:57.2 Zawierucha then stated that Haak had come in "on [his] own," and that the police would not be "keeping [him]"; they just wanted "to talk" to him. Id. at 13:21:02.
After confirming that Haak had understood everything said thus far, Zawierucha asked if Haak had any idea why police wanted to talk with him. Haak replied that he did not, other than to assume that the police wanted his help "busting somebody." Id. at 13:21:21. After a brief, casual exchange about persons known to both men, Zawierucha reiterated to Haak that he just wanted to have a conversation and that Haak owed it to himself to hear what the detective had to say. Zawierucha assured Haak that he would not "blow smoke" or "bulls—t" him, and that Haak could make "whatever decision you want to make, and we'll go from there." Id. at 13:22:14. "In any case," Zawierucha assured Haak, "you're walking out of here today"; "nobody is sandbagging you." Id. at 13:22:23. Haak nodded his head affirmatively during this exchange and, when asked, said he understood.
Zawierucha then came to the point of the interview: "Obviously, you're familiar with James Forness."Id. at 13:22:33. Haak agreed, whereupon Zawierucha asked him if he knew what had happened to Forness. Appearing surprised by the question, Haak said, "No, what happened to him?"
Id. at 13:22:45. Rather than answer that question, Zawierucha asked Haak when he last spoke with Forness, to which Haak replied, "a week ago, ... Thursday or Friday." Id. at 13:22:54. Pressed as to whether it could have been Saturday, Haak replied, "No." Id. at 13:23:04.
Zawierucha then told Haak that police had reviewed his cell phone records as well as Forness's text messages and—urging Haak "just [to] sit and listen to me"—stated, "obviously, you've been supplying him with some heroin." Id. at 13:24:08. Haak nodded, whereupon Zawierucha reiterated, "No secret." Id. at 13:24:14. Zawierucha then started to quote a text message from Haak to Forness on the Saturday afternoon of the latter's death in which—responding to a text message from Forness saying, "This is good stuff"—Haak told Forness, "Be careful with it because [it has] fentanyl in it." Id. at 13:24:28. Zawierucha said he would "imagine [it was] a mixture," to which Haak responded, Id. at 13:24:32. When a moment later, Zawierucha repeated, "you did tell him to be careful with it, because he said it's good stuff," Haak nodded agreement. Id. at 13:24:42.
Zawierucha then told Haak what had happened to Forness, specifically, that on the Saturday these text messages were exchanged, Forness had died from an overdose of fentanyl. Haak stated, "I had no idea." Id. at 13:25:01. Zawierucha then told Haak, "You were the last person he was actually texting, and the heroin that he shot up came from you." Id. at 13:25:03. Haak first replied, "No, it didn't," id. at 13:25:12, but when Zawierucha maintained that telephone records and text messages showed "it did," id. at 13:25:23, Haak said, "Okay," id. at 13:25:24.
Only at that point, approximately five minutes into the interview, and after Haak had already inculpated himself in supplying the drugs that killed Forness, did Zawierucha make any of the statements that the district court identified as coercive. We here italicize these statements in detailing the ensuing conversation.
Urging Haak to "sit back and take a breath," id. at 13:25:27, which Haak did, Zawierucha told him, id. at 13:25:30. Haak said, "Okay," id. at 13:25:33, whereupon Zawierucha continued, id. at 13:25:36. Haak nodded his head affirmatively as Zawierucha was speaking. The following exchange then occurred:
Id. at 13:25:50.
Id. at 13:26:35. As Haak nodded his head, Zawierucha told him, Id. at 13:27:01.
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