United States v. Byram

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 97-2273



                    UNITED STATES OF AMERICA,



                            Appellant,



                                v.



                    HERMAN JOSEPH BYRAM, JR.,



                       Defendant, Appellee.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF MAINE



           [Hon. Morton A. Brody, U.S. District Judge]


Before



                     Boudin, Circuit Judge,

                                

             Coffin and Cyr, Senior Circuit Judges.


Margaret D. McGaughey, Assistant United States Attorney, with

whom Jay P. McCloskey, United States Attorney, and James L.

McCarthy, Assistant United States Attorney, were on brief for the

United States.

     Jeffrey M. Silverstein, by appointment of the court, with whom

Billings & Silverstein was on brief for appellee.


May 20, 1998


BOUDIN, Circuit Judge.  In June, 1997, Herman Byram, Jr.,

was indicted by a federal grand jury as a felon in possession of a

firearm in violation of 18 U.S.C.  922(g)(1), 924(e).  In the

district court, Byram moved to suppress two statements he had made:

one while in police custody and the other comprising his later

trial testimony in a state criminal case involving a different

defendant.  The district court granted the motion, and the

government brought this interlocutory appeal under 18 U.S.C. 

3231.

  The background facts, testified to at the suppression

hearing, are virtually undisputed.  On the evening of June 12,

1996, and into the early morning of the next day, Byram was at the

house of his friend Donald Boyce.  In the early morning of June 13,

Sean Bither, another friend of Boyce, was fatally shot during a

game of Russian Roulette.  Boyce--who allegedly had helped hold the

gun to Bither's head--was later indicted and convicted of murder in

Maine state court.

  On June 13th, 1996, Detective Sergeant Dennis Appleton

was assigned to supervise the case, and he learned that someone

named "Frenchie" had been a witness to the shooting.  Some time

later, Appleton discovered that "Frenchie" was Herman Byram and

that at some point during the evening, Byram had loaded Boyce's

gun.  Byram was on probation at the time.  After the shooting Byram

did not report to his parole officer for several months, and could

not be found by the police.

  At some point in the months following the shooting,

Appleton contacted Special Agent Kenneth MacMaster of the Maine

State Police.  MacMaster had been assigned to a federal task force. 

Appleton told MacMaster that the police were looking for Byram as

a witness, and that Byram might be charged under federal law as a

felon in possession of a weapon, based on Byram's loading of the

gun on the night of Bither's murder.  (Byram's explanation was that

he had reloaded the gun twice in the hope that Boyce would use the

ammunition harmlessly.)

  On February 19, 1997, after a warrant had been issued for

his arrest, Byram turned himself in to his parole officer.  Byram

was immediately jailed and, the next day, was taken to Caribou

Superior Court for arraignment.  Learning of Byram's arrest,

Appleton sent Detective James Madore to the courthouse to interview

Byram and serve him with a subpoena for Boyce's trial.  Appleton

told Madore to ask not only about the murder, but also about

Byram's handling of the gun; it is not clear whether Appleton told

Madore about the possibility of a possession charge against Byram.

  Madore interviewed Byram in a small conference room in

the courthouse with no one else present, directing his main

questioning to Bither's death.  Byram explained that he was in the

courthouse for a parole violation; Madore knew that this meant that

Byram was a felon.  At first, Byram was reluctant to talk, but he

spoke readily after Madore told him that he was not "implicated in

any of this."  Madore did not read Byram his Miranda rights at any

point in the interview.

  After discussing Byram's presence in the Boyce house on

the night of the murder, Madore turned to Byram's handling of the

gun.  Byram discussed the details, apparently with no reluctance. 

At the end of the interview, Madore handed Byram the subpoena, and

Byram returned to the courthouse holding cell.  Later that day,

Byram was arraigned, pled guilty to a violation of the terms of his

probation, and was sentenced to six months in prison.  Madore

reported on his interview to Appleton and filed a written report.

  On March 4, 1997, Agent MacMaster reviewed that report,

and around that time he again discussed the matter with Appleton. 

Knowing that Byram was to testify at Boyce's murder trial, the two

men agreed to take no further action until then.  Appleton also

spoke to William Stokes, who was to prosecute Boyce in state court,

about Byram's prospective testimony.  They discussed whether to

advise Byram of his rights, but Appleton left the final decision up

to the prosecutor.

  On March 25, 1997, Byram, still in jail, was brought

under subpoena to testify at the Boyce trial in state court. 

Neither Stokes nor anyone else advised him of his right not to

incriminate himself or suggested that he consult an attorney. 

Byram testified in detail not only to the events surrounding the

murder, but also to his having twice loaded Boyce's gun earlier in

the day.  After the testimony Appleton once again contacted

MacMaster to report that Byram had incriminated himself on the

stand.

  A couple of months later MacMaster received the

transcript of Byram's testimony, and reviewed it.  On May 30, 1997,

MacMaster himself interviewed Byram at the Aroostook County Jail. 

MacMaster began the interview by reading Byram his Miranda rights,

but did not ask him any questions about his handling of the gun. 

About three weeks later, a federal grand jury indicted Byram on the

charge of being a felon in possession because of his handling of

the gun on the day of Bither's death.

  Before trial, the district court held a hearing on

Byram's motion to suppress his two statements.  Byram testified and

claimed to remember that he had been read his rights by Madore at

the first interview.  However, the government admitted that

Madore's evidence would be to the contrary, and the government and

the judge agreed that Madore's memory of the events was probably

more accurate than Byram's.  The court also heard testimony from

Madore, Appleton and MacMaster and accepted a stipulation from the

parties concerning Stokes's actions.

  After hearing argument from the parties, the court ruled

on the motion to suppress in open court.  Preliminarily, the court

found that Byram in fact had not been advised of his Miranda rights

by Madore, and also that Appleton, Madore, and MacMaster had acted

in good faith, properly giving the murder case priority over the

possession charge.  The court held that, at the February 1997

interview, Byram had been in custody for Miranda purposes.

  In explaining the reasons for suppression, the judge

first noted that he found the voluntariness of both Byram's

statement to Madore and Byram's open court testimony "suspect," and

went on to say, "I'm satisfied that the defendant was not advised

of his rights at any time . . . prior to those statements and that

he should have been. . . .  I'm not going to suggest at which stage

or by whom."  The court then concluded that Byram had been deprived

of his due process rights, and granted the motion to suppress both

statements.  This appeal followed.

  On appeal, the government has decided not to challenge

the district court's exclusion of Byram's initial statement to

Madore in the courthouse on February 20, 1997; but it vigorously

objects to the exclusion of Byram's March 25, 1997, trial

testimony.  We consider in turn three possible grounds for

exclusion of the trial testimony:  that it was the "fruit" of an

involuntary confession, that it was the result of outrageous police

conduct that shocks the conscience, and that it was the fruit of

the Miranda violation.

  Voluntariness.  The district court expressed doubt

whether Byram's statements to Madore and his testimony in open

court were "voluntary" but did not expressly decide the issue.  If

we shared serious doubts about the voluntariness of the statements,

we would probably remand for further findings because

involuntariness is the best-settled and narrowest ground on which

this case could be decided; the Miranda fruits issue, as we will

see, is unusually difficult.  However, the voluntariness standard

has been refined by the Supreme Court in a manner that makes a

voluntariness claim too doubtful to warrant a remand, and we think

it useful to explain why.

  Historically, the requirement that admissible confessions

be "voluntary" reflected a variety of values; these included

deterring coercion, assuring reliability of confessions, and

protecting the suspect's free choice whether to confess.  Thus, at

common law, confessions produced by promises not to prosecute or

offers of leniency were often excluded as involuntary.  See 1 W.

LaFave & J. Israel, Criminal Procedure  6.2, at 440 (1985).  And

early Supreme Court cases looked in the same direction.  E.g.,

Lisenba v. California, 314 U.S. 219, 234 (1941).

  However, in recent years, the Supreme Court has confined

the voluntariness concept by holding that only confessions procured

by coercive official tactics should be excluded as involuntary. 

Colorado v. Connelly, 479 U.S. 157, 167 (1986).  See United Statesv. Santos, 131 F.3d 16, 19 (1st Cir. 1997); LaFave & Israel, supra,

 6.2 at 87 (Supp. 1990).  "Free choice" is no longer a touchstone;

indeed, the Supreme Court has ruled in Connelly that a volunteered

confession was admissible even if the product of a psychosis that

undermined the suspect's ability to make a free and rational

choice.

  Judging whether improper police coercion occurred depends

on the circumstances, but despite the district court's reservations

it would be difficult to describe Byram's statements as coerced

under Connelly.  At no point did the police threaten violence or

serious retaliation if Byram refused to speak; the questioning was

not prolonged; and the atmosphere at the February 1997 courthouse

interview appears to have been benign.  Indeed, Byram does not

seriously argue that Madore coerced him during the interview. 

There is even less reason to regard Byram's later trial testimony

as the result of coercion.

  Byram's main claim throughout has been that he was

tricked by Madore's assurance that he was not implicated in

Bither's death, literally true so far as the murder charge was

concerned but a suggestio falsi as pertains to a possible

possession charge.  Certainly some types of police trickery can

entail coercion:  consider a confession obtained because the police

falsely threatened to take a suspect's child away from her if she

did not cooperate.  See Lynumn v. Illinois, 372 U.S. 528, 534

(1963).  See also Spano v. New York, 360 U.S. 315, 323 (1959).

  But trickery is not automatically coercion.  Indeed, the

police commonly engage in such ruses as suggesting to a suspect

that a confederate has just confessed or that police have or will

secure physical evidence against the suspect.  While the line

between ruse and coercion is sometimes blurred, confessions

procured by deceits have been held voluntary in a number of

situations.  Frazier v. Cupp, 394 U.S. 731, 739 (1969) (confession

obtained by false statement that co-conspirator had confessed); see

also Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir. 1992),

cert. denied, 506 U.S. 1082 (1993).  But see United States v.

Rogers, 906 F.2d 189, 192 (5th Cir. 1990).

  Given the narrowed definition of coercion in Connelly, it

would be very hard to treat as coercion a false assurance to a

suspect that he was not in danger of prosecution.  (Of course, a

false assurance might undercut the gist of a warning, raising

questions whether Miranda had been satisfied; but that is a

different problem that we need not address since no Mirandawarnings at all were given here.)  We conclude that under ConnellyByram's interview statement, like his trial testimony, would not be

"involuntary" even if he were deceived, a legal conclusion that

makes any remand pointless.

  Outrageous Misconduct.  Byram argues that regardless of

coercion, the methods used to obtain his statements were so

shocking to the conscience that they violated his rights to

"substantive due process."  The classic case is Rochin v.

California, 342 U.S. 165, 172 (1952), where retrieving evidence by

pumping the suspect's stomach was regarded as so at odds with

civilized values that the evidence had to be excluded.  Since

Rochin, courts have from time to time invoked this standard to

exclude evidence, but normally with some caution and only in the

most extreme of cases.  See, e.g., United States v. Fernandez-Caro,

677 F. Supp.  893, 894-95 (S.D. Tex. 1987); cf. United States v.

Santana, 6 F.3d 1, 4 (1st Cir. 1993) ("[T]he outrageous misconduct

defense is almost never successful.").

  Given the district court's finding of good faith, the

police conduct cannot be described as shocking to the conscience or

beyond the bounds of civilized behavior.  The police were

investigating a homicide and thought, correctly, that Byram was a

helpful witness, not implicated in the murder.  As to the

possession charge, Appleton did not tell Madore to omit the Mirandawarning during the interview; and Madore, although he should have

known that Byram was a suspect, said that he was focusing on the

murder (and the district court apparently believed him).

  Further, the Supreme Court's tolerance of police guile in

Frazier makes clear that the police can often mislead suspects, at

least where coercion is not involved; thus, it is impossible to

treat all such false statements as improper, let alone outrageous

or uncivilized.  Police investigation can be a rough business, and

untruths may sometimes be necessary to save a kidnap victim,

retrieve a missing firearm, or for other reasons quite apart from

the desire to solve a specific crime already committed.  See New

York v. Quarles, 467 U.S. 649, 656-57 (1984).  In this case, "facts

more egregious than those presented here" would be required to

"rise to a level of a due process violation."  Moran v. Burbine,

475 U.S. 412, 432 (1986).  

  Miranda.  This brings us to the Miranda doctrine which,

with certain exceptions, renders inadmissible statements obtained

through custodial interrogation unless the police officer informed

the suspect of his right to remain silent and to consult an

attorney.  Miranda v. Arizona, 384 U.S. 436, 478-79 (1966). 

Despite the government's reserved objection, we think that during

the interview with Madore, Byram was unquestionably being subject

to deliberate custodial interrogation.  Garcia v. Singletary, 13

F.3d 1487 (11th Cir. 1994), involving an on-the-spot inquiry by a

guard who saw a prisoner burning his mattress, is miles away from

the present case.

     But Miranda does not extend to Byram's trial testimony. 

He was brought from jail under subpoena, but the testimony was

given in open court and involved none of the dangers of jail-cell

interrogation that prompted Miranda.  The Supreme Court has held

that a grand jury witness is not entitled to a Miranda warning

before testifying, United States v. Mandujano, 425 U.S. 564, 579

(1976) (plurality opinion), and it would hardly hold otherwise in

the case of trial testimony, see id. at 582.  Judges often warn

trial witnesses, or even call in counsel, where a witness appears

to be on the verge of incriminating himself, but this admirable

practice is not commanded by the Constitution.

     The question, then, is whether the earlier statements

unlawfully obtained under Miranda tainted the court testimony. 

Where a confession is coerced, evidence derived directly from the

confession can also be excluded as involuntary under a doctrine

similar to the "fruit of the poisonous tree" doctrine.  However, in

Oregon v. Elstad, 470 U.S. 298, 309-10 (1985), the Supreme Court

flatly forbade automatic application of the fruits doctrine for

Miranda violations.  Compare 1 LaFave & Israel, supra,  9.5, at

762 (discussing pre-Elstad decisions in lower courts).

     Some circuits have taken the view that Elstad is the end

of any use of the fruits doctrine based on a Miranda violation. 

Yet Elstad itself involved what most people would regard as a

highly "technical" violation of Miranda--a volunteered statement by

the suspect in his own home before being taken to the police

station.  More importantly, the later statements made at the police

station, held admissible in Elstad, were made after the

conventional Miranda warnings were given.  Thus, the Eighth Circuit

suggested that Elstad may be confined to cases where the Mirandaviolation is merely technical.  United States v. Carter, 884 F.2d

368, 373 (8th Cir. 1989).

     Our own view, highly tentative in the absence of more

guidance from the Supreme Court, is that Elstad would be hard to

confine to technical violations; its language emphasizing the

voluntariness test as the prime safeguard is too powerful for that. 

But by the same token we think that Elstad does not wholly bar the

door to excluding evidence derived from a Miranda violation--at

least where the Miranda violation is not merely technical, where

there is a substantial nexus between the violation and the second

statement, and where the second statement is not itself preceded by

an adequate Miranda warning.

     This is very much a description of the present case. 

Here, in contrast to Elstad, the original Miranda violation was not

technical.  We accept that Madore questioned Byram in good faith

and did not consciously aim at implicating him in a crime, yet by

any objective test, the threat that Byram would be implicated in a

possession charge was clear.  See Rhode Island v. Innis, 446 U.S.

291, 301-02 (1980).  Madore further assured Byram that he was not

implicated in any of "this."  Thus, Byram returned to jail likely

believing that his statements did not put him in danger.

     Byram remained in jail without ready access to legal

counsel until called to testify under the subpoena that Madore had

served on him.  Then, with no new warning that he could remain

silent or consult with a lawyer (again, in contrast to Elstad),

Byram was deliberately asked questions by the prosecutor to elicit

the same self-incriminating statements about possession that Madore

had extracted.  Byram's trial testimony was thus very much

facilitated by the original Miranda violation, which was neither

technical nor mitigated by an intervening warning.

     Two members of the panel think that under all the

circumstances, Byram's state trial testimony should be suppressed

in the federal case as the product of a Miranda violation.  The

third member of the panel has doubts whether this is consistent

with the literal language of Elstad but agrees that Elstad is

distinguishable on its facts and that the Supreme Court was not

laying down an iron rule debarring a "fruits" argument in all

Miranda cases.  All members of the panel agree that the events in

this case are unusual and that Elstad discourages any promiscuous

use of the fruits doctrine in ordinary Miranda cases.

     Accordingly, we conclude that both sets of statements--

Byram's admissions to Madore and Byram's trial testimony in the

Boyce case--should be suppressed, although our reasoning is

somewhat different from that of the district court.  The

suppression order is therefore affirmed.