United States v. Billy Lee Jorgensen

871 F.2d 725, 1989 WL 23805

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 25, 1989
• Docket: 87-2487
• Status: Published

Opinions

MAGILL, Circuit Judge.

In this case, the district court¹ dismissed a motion to suppress inculpatory statements made by a criminal suspect to federal investigators before he was arrested or charged. We agree with the district court’s findings and accordingly affirm.

On October 26,1987, Billy Lee Jorgensen pled guilty to two counts of transporting stolen goods in interstate commerce. However, Jorgensen, who subsequently received two concurrent three-year prison sentences, preserved his right to appeal from the district court’s dismissal of his motion to suppress all statements he made when questioned in a FBI office on July 19, 1985. Jorgensen’s motion asserted that his statements were inadmissible because they were obtained without proper Miranda warnings, by psychological coercion, and during plea bargaining negotiations.

I. BACKGROUND

This case began with the theft of a tractor and trailer containing 40,000 pounds of Oscar Mayer meat products (valued at approximately $80,000). During the weekend of June 22, 1985, the meat trailer was shipped interstate. When the shipment reached Altoona, Iowa, it was stolen by a group authorities believed consisted of Billy Lee Jorgensen, his older brother Garry Jorgensen, David Atchley, and Dirk Sun-gle. Witnesses who had seen the thieves with the stolen meat trailer after it broke down in Monroe, Iowa identified photographs of Billy Lee Jorgensen and Mr. Atchley² on July 11, 1985. After the photo identifications, Special Agent David T. Ox-ler, a nineteen-year FBI veteran stationed at the Bureau’s headquarters at 1 Corporate Place in West Des Moines, contacted Billy Lee Jorgensen to request an interview in regard to the meat trailer theft.

Oxler allowed Jorgensen to choose where and when to conduct the interview. Eventually, Jorgensen elected to be questioned in Oxler’s office at approximately 10:00 a.m. on July 19, 1985. The office was located on the fifth floor of a large commercial office building that contains private businesses and the FBI offices. Oxler informed Jorgensen that, he could either drive to the interview on his own, or a Bureau employee could “pick him up.” Jorgensen believed that Oxler’s wording was euphemistic and tacitly compelled him either to comply with Oxler’s request to come in for questioning or to submit to immediate arrest and detention by the FBI. Oxler insists that he simply offered Jorgen-sen a ride to the FBI offices in case he had no other means of transportation.

Oxler emphasizes that although he encouraged Jorgensen to come in for questioning, it should have been apparent to Jorgensen that he was free to decline. Ox-ler stated during Jorgensen’s suppression hearing that on “innumerable” occasions, suspects he wished to interview had refused to appear.

Despite his suspicion that Oxler had ordered him to appear for questioning by applying subtle coercion, Jorgensen did appear at the West Des Moines FBI offices on the morning of July 19,1985, along with his brother Garry. Jorgensen explained at the suppression hearing that Garry accompanied him for “support,” because Jorgen-sen feared the interview would lead to his arrest. Oxler and Jorgensen have offered conflicting descriptions of the FBI headquarters and its atmosphere. Physically, it consisted of a small waiting room, a “squad room” occupied by several agents and their secretaries, and a supervisor’s office (in which the interview of Billy Lee Jorgensen took place).

To Oxler, the two-hour interview was informal, routine and, under the circumstances, fairly friendly.³ In contrast, Jor-gensen insists that when Oxler led him in to be questioned, Oxler ordered Garry Jor-gensen to stay in the waiting room and prepare to be questioned after his brother. Oxler apparently never informed either of the Jorgensens that they were free to leave. Nor did he give them Miranda warnings.

Jorgensen asserts that door buzzers, locking doors, agents with visible weapons, and other security devices in the FBI offices made him feel as though he were in custody. However, the offices had no holding cells or other facilities for detaining arrestees or suspects. In addition, the offices had no security guard on duty. All told, the record gives us two tales of one set of offices. We must consider whether the FBI offices were Oxler’s innocuous bureaucratic workplace or Jorgensen’s tacitly (but effectively) intimidating detention center.

Those present at the questioning were Oxler, Jorgensen and Officer Larry Street-er of the Altoona Police Department. Streeter had investigated the case when it was a local Altoona, Iowa matter. Agent Oxler led the investigation when Altoona relinquished the case to the FBI. Jorgen-sen claims that Streeter arrived late and added to the generally menacing atmosphere when he entered the interview room, unstrapped a gun, and hung it on a peg. Oxler and Streeter deny this. They recall that Streeter was there from the beginning and that they did not display weapons in Jorgensen’s presence.

Oxler denies having made or even discussed any “deals” with Jorgensen. In contrast, Jorgensen testified that “Mr. Ox-ler told me that they did not want me or my brother. They wanted the higher up people, and if we would tell them everything that’s happened, they will not bring no charges against us on the agreement that we were willing to testify against other people.” Transcript at 60. Oxler recalls informing Jorgensen of photo identification evidence linking him to the meat trailer theft. See supra at 726. The FBI was planning a sting operation, he explained, since it suspected that “higher-up people” ordered the theft. Oxler testified that he explained the operation to Jorgensen and that he emphasized that full disclosure of his knowledge of the meat trailer theft would benefit him.

Oxler also testified that he explained that although he had evidence that Jorgensen had participated in the theft, he was primarily concerned with investigating the “higher-ups” who purchased the stolen meat trailer from the thieves. Therefore, Jorgensen probably could reduce his inevitable punishment by cooperating. According to Oxler, he routinely offers such advice, which falls short of making deals or promises but implies that leniency is obtainable, to criminal suspects.

Jorgensen listened to Oxler for a few minutes and then requested to confer with Garry Jorgensen. After walking alone to the waiting room and conversing with his brother, Jorgensen returned and discussed the theft with Oxler and Streeter. The two officials then found Jorgensen unusually “talkative.” He told them that he and a colleague had received $15,000 for the stolen meat.

Later, Oxler concluded that Jorgensen was not only a willing interviewee, he was “almost a braggart in regard to all his [criminal] activities, and he was indicating * * * other things that were going on that he had knowledge of, [other] ongoing criminal activities.” Transcript at 32. Officer Streeter’s testimony at the suppression hearing supports Oxler’s statement about Jorgensen’s self-incriminating “bragging”: “ * * * he liked to brag about everything he liked to do, and he was trying to be a big time criminal and to impress us * * *. He * * * told us about * * * numerous thefts that he was involved in.” Transcript at 52. Streeter also emphasized that Jor-gensen “volunteered” the incriminating admissions and “was free to leave the room.”

Two weeks after his interview, Jorgen-sen provided Oxler and Streeter with information that led to the arrest of the perpetrator of an unrelated crime. When Jor-gensen was arrested for his participation in the meat trailer theft approximately two years after the interview with Oxler and Streeter, he was shocked to be charged after such a substantial lapse of time.⁴ He believed his cooperation during and after the 1985 interview had earned him both immunity from prosecution for the meat trailer theft and protection from the “higher-ups.” He claims (and Oxler denies) that when the July 19, 1985 interview ended, Oxler’s parting words were “go lead a normal life. No charges will be filed against you if you testify.” Garry Jorgensen also protested upon his arrest that he thought “a deal had been made” two years earlier.

II. DISCUSSION

We apply a “clearly erroneous” standard of review when assessing a decision by the district court to deny a motion to suppress. United States v. Eisenberg, 807 F.2d 1446, 1449 (8th Cir.1986) (citing United States v. Lewis, 738 F.2d 916, 920 (8th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985)). Therefore, we must affirm unless the decision of the district court is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, in light of the entire record, we are left with a firm and definite conviction that a mistake has been made. United States v. Pantazis, 816 F.2d 361, 363 (8th Cir.1987) (citing United States v. Lewis, 738 F.2d 916, 920 (8th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985)).

Jorgensen appeals the denial of his motion to suppress on three grounds:

(A) He was not adequately advised of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

(B) His confession was involuntary, stemming from promises of leniency and other forms of psychological coercion in violation of the fifth amendment of the United States Constitution.

(C) The July 19,1985 interview constituted inadmissible plea bargaining negotiations under Fed.R.Crim.P. 11(e), (6)(D).

We address these grounds individually.

A. No Miranda Warnings

The Miranda v. Arizona doctrine requires law enforcement officials to follow clearly defined procedures before interrogating criminal suspects in their custody. The Supreme Court defines custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. See also United States v. Venerable, 807 F.2d 745, 747 (8th Cir.1986). When considering whether a suspect is in custody for Miranda purposes, a court must consider the totality of the circumstances. United States v. Rorex, 737 F.2d (8th Cir.1984). See also United States v. Helmel, 769 F.2d 1306, 1321 (8th Cir.1985). The Miranda safeguards only apply to interrogation in a custodial setting. Miranda, 384 U.S. at 477-78, 86 S.Ct. at 1629-30.

We agree with the district court that Jorgensen, during his questioning on July 19, 1985, was not entitled to the protections afforded to criminal suspects by Miranda because he was not in custody.

Jorgensen was not placed under arrest. The officers allowed him to go by himself to an unlocked, unguarded section of the FBI offices to speak to his brother. This kind of latitute is clearly inconsistent with custodial interrogation, the situation without which the procedural safeguards of Miranda do not come into effect. We are not persuaded that Jorgensen’s freedom of action was significantly limited during the interview. Agent Oxler has testified that “I had no question in my mind that [the interview] wasn’t custodial * * *. I had no intention of making an arrest * * *. I didn’t think we were close to a situation requiring the invocation of the Miranda rights.” Transcript at 28. We agree with Oxler’s assessment.

The United States Supreme Court’s opinion in Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), is on point. The Court explained that “ * * * police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’ ” Id. at 495, 97 S.Ct. at 714.

Since Jorgensen has failed to demonstrate that he was subjected to custodial interrogation, we do not find the district court’s dismissal of his Miranda claim clearly erroneous.

B. Voluntariness

Jorgensen’s second argument against the admissibility of his admissions is that they were involuntary: obtained through promises of leniency and other forms of psychological coercion. He asserts that because of the physical layout and atmosphere of the FBI offices and the substance of Oxler and Streeter’s questioning, he was intimidated and consequently spoke involuntarily.

Voluntariness remains the standard for the admissibility of confessions. See Brown v. Mississippi, 297 U.S. 278, 279, 285, 56 S.Ct. 461, 462, 464, 80 L.Ed. 682 (1936) (the use of involuntary confessions violates due process). The test used to apply this constitutionally based standard is whether, in light of the totality of the circumstances, pressures exerted upon the suspect have overborne his will. Haynes v. Washington, 373 U.S. 503, 513-14, 83 S.Ct. 1336, 1343, 10 L.Ed.2d 513 (1963); see also Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961) (suspect’s will is overborne when a confession is not the product of an essentially free and unconstrained choice). The Eighth Circuit has also embraced the “overborne will” doctrine. See Rachlin v. United States, 723 F.2d 1373, 1377 (8th Cir.1983). Two factors must be considered in the voluntariness inquiry: the conduct of the law enforcement officials and the capacity of the suspect to resist pressure to confess. Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 518-19, 93 L.Ed.2d 473 (1986).

Although there does appear to have been a mildly coercive atmosphere at the FBI offices during Jorgensen’s interview, we are not persuaded that it rose to the level of a constitutional violation. Moreover, the United States Supreme Court, in Mathiason, see supra at 729, has emphasized that “[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime.” Mathiason, 429 U.S. at 495, 97 S.Ct. at 714.

It is true that Oxler and Streeter, by informing Jorgensen that they had eyewitness testimony identifying him as one of the meat trailer thieves, created a situation in which he was fearful of imminent arrest. Plus, the evidence does appear to support Jorgensen’s testimony that with its buzzers, locking doors, and armed agents, the FBI offices in West Des Moines in some ways do resemble a police station house.

However, it is equally true that Jorgen-sen never asked over the course of two hours to stop the interview except when he paused for the brief discussion with his brother. Also, since Jorgensen had previously experienced the ordeal of arrest and custodial detention, his argument that he was intimidated by the ambiance of an office with no security guards or holding cells — an office in a rather plain and un-threatening commercial office building— merely because it had doors with locks and buzzers is not persuasive. As we noted earlier, Oxler permitted Jorgensen to choose the time and place of the interview and to walk unescorted to the waiting room to speak to his brother. Overall, we are not convinced that official coercion or his own incapacity to withstand the pressure of the interview scenario caused Jorgensen to confess to his participation in the meat trailer theft. Rather, he appears to have agreed, either on his own or in conference with his brother, with the advice offered by Agent Oxler: the surest means of limiting his punishment was to speak candidly to Oxler and Streeter. Jorgensen’s candor did not obtain for him the lenient “deal” that he had hoped for, but since we see no evidence that the officers made direct or implied promises other than to inform other law enforcement authorities of Jorgensen’s cooperation, we agree with the district court that there was no fifth amendment violation.

C. Fed.R.Crim.P. 11(e)(6)(D)

Jorgensen’s third argument is that his admissions during the July 19, 1985 interview were inadmissible because he reasonably believed the interview constituted a plea bargaining negotiation. He supports his claim by citing Fed.R.Crim.P. 11(e)(6)(D):'

(e) Plea Agreement Procedure.

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(6) Inadmissibility of Pleas, Plea Discussions, and Related Statements. Except as otherwise provided in this paragraph, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

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(D) any statement made in the course of plea discussions with an attorney for the government which do not result in a plea of guilty later withdrawn.

Oxler and Streeter clearly are not “attorneys for the government” for Rule 11(e)(6)(D) purposes, but Rachlin v. United States, 723 F.2d 1373, 1376 (8th Cir.1983), indicates that when law enforcement officials have express authority from government attorneys to act as their surrogates, statements made to them by a criminal suspect are inadmissible.

In this case, Oxler and Streeter were not engaged in plea bargaining negotiations. The U.S. Attorney’s office gave the officers no authority to bargain. Indeed, it was not informed that an investigation of the meat trailer theft was taking place. Since there was no plea bargaining or requisite authority to bargain, the district court’s conclusion that Rule 11(e)(6)(D) does not protect Jorgensen is not clearly erroneous.

III. CONCLUSION

The district court’s conclusions that Jor-gensen was not entitled to Miranda warnings, that he made his admissions voluntarily, and that he was not entitled to the protections afforded by Fed.R.Crim.P. 11(e)(6)(D) are supported by substantial evidence in the record. Finding no clear error in the district court’s dismissal of Jorgen-sen’s motion to suppress his statements of July 19, 1985, we affirm.

1 . The Honorable Harold D. Vietor, Chief Judge, United States District Court for the Southern District of Iowa.

2 . Atchley initiated the theft. The Jorgensens and Sungle came to assist him after the tractor broke down. Unable to repair the tractor, the thieves stole another one and hooked it to the meat trailer before escaping to Missouri.

3 . Oxler's testimony is based on his recollections of the interview and written notes he took and later had transcribed. Oxler testified that the FBI has a written rule forbidding tape recordings of non-undercover interviews.

4 . After the arrest, which occurred in July 1987, the police read Jorgensen the Miranda warnings. Subsequently, Jorgensen reaffirmed much of the information about the meat trailer theft that he provided in the interview of July 19, 1985. Transcript at 92-93. We are uncertain whether Jorgensen confessed fully in the 1987 statement, but a remand is unnecessary because we will proceed directly to the merits of his 1985 confession.