United States v. Haak
This text of 884 F.3d 400 (United States v. Haak) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Reena Raggi, Circuit Judge:
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
BACKGROUND
I. Haak's Non-Custodial Statements to Authorities
A. Haak Voluntarily Comes to the Police Station
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.
B. The Overall Context of the Interview
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 *403 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
,
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."
C. Haak's Initial Inculpatory Statements
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.
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Reena Raggi, Circuit Judge:
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
BACKGROUND
I. Haak's Non-Custodial Statements to Authorities
A. Haak Voluntarily Comes to the Police Station
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.
B. The Overall Context of the Interview
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 *403 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
,
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."
C. Haak's Initial Inculpatory Statements
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?"
*404
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."
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."
D. The Police Statements at Issue
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,"
Zawierucha: There's a multi-county, federal investigation where people are gonna get wrapped up in a conspiracy charge for distributing heroin containing fentanyl. Primarily the people that are the direct people that distributed this, especially if it caused a death, are gonna be the number one targets.
Haak: Okay.
Zawierucha: You don't need this s-t.
Haak: No, I don't.
After a brief, unrelated exchange about a case known to Haak in which Zawierucha revealed himself to have been the arresting officer, Zawierucha continued,
I'm not looking to screw you over, not looking even to come after you on this. But you need to make a conscious decision. Okay? I told you you're walking out of here. You are walking out of here. But there's a death investigation that *405 this department here is investigating along with the Drug Enforcement Administration, caused by heroin containing fentanyl that you sold to the deceased.
Zawierucha then asked Haak again whether he had known of Forness's death. When Haak answered, "No, I, honest to God, didn't," Zawierucha told him, "I believe you."
I'm not looking to mess with you, I'm not looking to come after you, but you gotta get on board or you, you shut your mouth and then the weight of the federal government is gonna come down on you. But you obviously got this from somebody. Okay.
Zawierucha then told Haak that heroin-related deaths were increasing and that law enforcement knew that some of the fentanyl being mixed with heroin came from a common Mexican source. Zawierucha said he was looking for Haak's "cooperation on this so we can backtrack this and hopefully prevent some deaths."
Zawierucha then reviewed some of the text message evidence inculpating Haak in Forness's death, including a 2:30 p.m. message indicating that Haak was then en route to deliver the fatal drugs to Forness. Asked if that sounded familiar, Haak said it did, except that he "thought it was Friday."
The heroin you sold [Forness], that you directly sold him, I'm just-no if, ands or buts about it, okay? That was, it came from you. He's dead because he shot it into his veins. And that's why I asked you if it had fentanyl in it. Now obviously you've got a plug that you got it from. That's how you're supporting yourself.
Zawierucha: Alright, now here's the thing. I'm going to ask you, and it's your call. Either you can get on board, put the team jersey on here, play for this team, or you can be on the losing team.
Haak (laughing): I don't want to be on that team.
Zawierucha: No? I'm just telling you, it's as simple as that. I'm making an analogy here. I'm looking for your cooperation on this . But you're going to save yourself a world of hurt. Alright? Who's your plug?
E. Haak Identifies Two of his Drug Suppliers
Haak then identified his source as "Fran," a male a little older than he whose last name he did not know but whose phone number he provided.
Asked how much heroin he had sold Forness, Haak said, "four or five bags."
F. Soliciting Haak's Cooperation in a Controlled Buy
Zawierucha then told Haak that news of Forness's death was "going to get out," but should not get out through Haak: "Don't go spreading the word."
As Zawierucha started to move to another point, Haak looked at his cell phone and observed that he had to get his car home for his mother, who had a "hair appointment" that afternoon.
Zawierucha then discussed Haak making a controlled purchase of heroin from Fran, asking the largest amount Haak thought he could obtain: "Could you get a bundle?"
For the final ten minutes of the interview, Zawierucha and Haak discussed the anticipated controlled buy. In the course thereof, Zawierucha asked Haak about his own heroin use and pressed him as to whether he had given heroin to anyone other than Forness, because "somebody else ends up dead, then you've got a problem."
Zawierucha then told Haak,
Obviously, this isn't going to go away, this whole investigation. Alright. But I think you're doing the absolute right thing by getting on board and that's why I told you I think it behooves you to *407 listen to what I had to say. I'm not going to hold you up. You need to be somewhere. But here's the deal. In the near future, ... we're going to have you make one of these calls. You have no problem doing that?
Zawierucha again pressed Haak as to any other persons who might have received fentanyl-laced heroin, and Haak again denied such knowledge. Zawierucha then emphasized the danger to Haak himself in using heroin containing fentanyl. The men's final exchange was as follows:
Zawierucha: [M]ost likely, you're not going to get pulled into this thing because you're helping us. Okay? And I'm assuming you're on board, and you want to help us because it's the right thing to do.
Haak: Yeah.
Zawierucha: So nobody else dies from this s-t.
Haak: Absolutely.
II. Haak Arranges Two Controlled Buys and Is Then Charged by Federal Authorities with Drug Trafficking
Over the next few days, Haak, working under the direction of law enforcement authorities, arranged for two controlled purchases of heroin from Francis ("Fran") Tessina, who was then arrested. On March 10, 2015, six days after the interview detailed above, a federal complaint was filed charging both Haak and Tessina with distributing and conspiring to distribute heroin in violation of
III. District Court Proceedings
Before the district court, Haak filed an omnibus pre-trial motion seeking, among other things, to suppress his March 4, 2015 statements to Detective Zawierucha. Haak argued that (1) he was not properly advised of his Miranda rights in that he was not told that if he could not afford an attorney, one would be appointed for him; and (2) his statements were coerced by the threat that " 'the weight of the federal government would fall on him' " if he did not cooperate. Govt. App'x 30-31.
Magistrate Judge McCarthy, to whom all pre-trial matters were assigned, concluded that neither of Haak's arguments warranted suppression, the first, because the video recording showed that Zawierucha did provide the allegedly omitted warning; and the second, because the magistrate judge identified no impropriety in threatening a defendant with prosecution if he did not cooperate. Nevertheless, the magistrate judge ordered further briefing
*408
as to the voluntariness of Haak's statements in light of Zawierucha's interview representations that he was " '
not trying to screw with
[Haak],' " " '
not even looking to come after
[him]
on this.
' " Request for Additional Briefing at 4-5 (emphasis in original). The magistrate judge also expressed concern that Zawierucha had told Haak that " 'the weight of the federal government [would] come down' on him
only if he remained silent,
" and had referenced cooperation as " 'putting on the team jersey' " and " 'playing for this team' " because, in the magistrate judge's view, "who in their right mind would reasonably expect that if they did so (by speaking up rather than remaining silent), they would end up being prosecuted by their own 'team'?"
After receiving additional briefing, the magistrate judge recommended that the district court suppress Haak's March 4, 2015 statements as involuntary because they were induced by Zawierucha's false promise that, if Haak cooperated, "he would not be prosecuted." Report & Recommendation, July 8, 2016, at 11.
The government filed objections to the magistrate judge's report with the district court, which rejected them and granted Haak's suppression motion.
See
United States v. Haak
,
The government timely appealed, invoking this court's jurisdiction pursuant to
DISCUSSION
I. Standard of Review
On appeal from a challenged suppression order, we review a district court's findings of fact for clear error, and its resolution of questions of law and mixed questions of law and fact
de novo
.
See
United States v. Bershchansky
,
We review the legal significance of undisputed facts
de novo
.
See
United States v. Bohannon
,
II. Haak's Statements Should Not Have Been Suppressed
When, as here, a defendant seeks to suppress non-custodial statements made to law enforcement authorities, the single issue before the court is whether the statements were voluntary,
i.e.
, the "product of an essentially free and unconstrained choice by [their] maker,"
Schneckloth v. Bustamonte
,
While "coercive police activity" is a "necessary predicate" to holding a confession constitutionally involuntary,
Colorado v. Connelly
,
With these principles in mind, we consider the district court's conclusion that the third of these sets of circumstances, the conduct of law enforcement officers in falsely promising Haak immunity from prosecution, overbore Haak's will and rendered his March 4, 2015 statements involuntary.
A. Haak's Statements Made Before the Purported Promise of Immunity Cannot Be Deemed Involuntary
At the outset, we note that the first statements by Detective Zawierucha that the district court identified to imply a promise of immunity were made some five minutes into the recorded interview, specifically at Video Recording, Mar. 4, 2015, 13:25:30, when the detective said, "I'm not
*410
trying to screw with you." By that time, however, Haak had already made statements or given signs that a jury could deem inculpatory. For example, when Zawierucha told Haak that his own phone records together with Forness's text messages showed that "obviously, you've been supplying him with some heroin," Haak nodded his head in what could be understood as agreement.
Thus, even on the district court's theory of coercion, there was no basis to identify these exchanges, or any others occurring before the purported promise of immunity, as involuntary.
See
Colorado v. Connelly
,
For reasons we proceed to explain, however, the totality of the circumstances fails to show that any of Haak's March 4, 2015 statements was constitutionally involuntary and, thus, we reverse the suppression order in its entirety.
B. The Totality of Circumstances Does Not Show that Haak's Will Was Overborne by a False Promise of Immunity
This court has recognized that "[m]aterial misrepresentations based on unfulfillable or other improper promises might perhaps overbear a defendant's will,"
United States v. Ruggles
,
Acknowledging this precedent, the district court construed Detective Zawierucha's statements to Haak as more than vague promises of leniency. Rather, the district court concluded that Zawierucha's statements sent a "loud, clear, and unmistakable" message that "in exchange for Haak's cooperation, he would not be charged."
United States v. Haak
,
1. Zawierucha Did Not Promise Haak Immunity
To support its conclusion that Haak was coerced into making incriminating statements by a promise of immunity, the district court relied on the various statements
*411
highlighted in this opinion's Background section.
See
supra
pp. 404-06
.
As the district court acknowledged, none of the statements promise Haak "in so many words" that he will not be charged with any crime if he cooperates with the police.
United States v. Haak
,
For example, Zawierucha's initial statement that "I'm not trying to screw with you,"
To be sure, the last two statements are followed by Zawierucha's assertions that he is "not looking even to come after you on this,"
That conclusion is further supported by the fact that Zawierucha effectively explained to Haak the reason he was not then looking to arrest him: Haak was not among the "number one targets" of an ongoing federal-state investigation into a larger scheme for the distribution of fentanyl-laced heroin. Video Recording, Mar. 4, 2015, at 13:25:50. That hardly communicated to Haak that he would never be charged for his own criminal conduct. Indeed, Zawierucha told Haak that his situation was very serious; he was caught up in a "death investigation,"
The district court nevertheless concluded that when the last two pronouncements are read together, they clearly offered Haak a binary choice between having the weight of the federal government come down on him or facing no charges at all in return for cooperation.
See
United States v. Haak
,
*413
(internal quotation marks omitted) ).
8
More to the point, such statements do not imply a promise of immunity in return for cooperation.
See
United States v. Braxton
,
In sum, neither the words spoken by Detective Zawierucha nor the context in which he spoke them communicated a clear and unmistakable promise of immunity in return for cooperation. Haak was promised that he would not be arrested that day but, rather, would be allowed to go home. What other consideration he would receive for cooperation was left unspecified and, thus, cannot be deemed coercive.
See
United States v. Gaines
,
This conclusion is only reinforced by the fact that, at the end of the interview, Zawierucha told Haak that "this [investigation] isn't going to go away." Video Recording, Mar. 4, 2015, at 13:48:26. Zawierucha did state that Haak "most likely" was "not going to get pulled into this thing because you're helping us."
Nor can a clear promise of immunity be implied from Zawierucha's employment of a "team" analogy to frame Haak's cooperation choice: "[e]ither you can get on board, put the team jersey on here, play for this team, or you can be on the losing team. ... I'm looking for your cooperation on this. But you're going to save yourself a world of hurt."
The district court also thought the team analogy implied a promise of immunity, highlighting Zawierucha's statement that " 'you're gonna save yourself a world of hurt' " by joining what Haak "thought was the winning team," only to learn that "his teammates-led by team captain Zawierucha-had deserted him," when "[h]e was charged with a crime, and 'the weight of the federal government [came] down on [him].' "
United States v. Haak
,
First, the statement that Haak would save himself "a world of hurt" by cooperating with the government is hardly a promise of immunity. As already observed, countless defendants who enter into cooperation *414 agreements without immunity expect to save themselves "a world of hurt" in any number of respects, most related to reduced jail time.
Second, Zawierucha's "team" reference cannot imply a promise of immunity because the analogy is routinely used-by law enforcement officials, defense attorneys, even courts-to refer to cooperators generally, the vast majority of whom do not receive immunity.
See, e.g.
,
United States v. Coronado
, No. 12-cr-83S,
Thus, Zawierucha's solicitation of Haak to join the government team to "save yourself a world of hurt" did not imply immunity, either by itself or when considered together with Zawierucha's other highlighted statements.
2. The Totality of the Circumstances Does Not Demonstrate that Haak's Will Was Overborne by Police Conduct
In the absence of a false promise of immunity, there is no other support in the totality of circumstances for the challenged suppression order. Any ambiguity in the quoted police statements is not enough to demonstrate coercion because, as the district court recognized, and our own review of the undisputed facts confirms, both Haak's characteristics and the conditions of the interrogation weigh in favor of holding Haak's statements voluntary.
Haak is an adult and, as the district court observed, "[h]is actions before, during, and after" the recorded interview exhibit maturity and "at least average intelligence."
United States v. Haak
,
The same conclusion obtains with respect to circumstances pertaining to the conditions of the interrogation. As noted, Haak was not in custody. He voluntarily came to the police station and knew from the outset that he did not have to speak with the police but, rather, could stop the interview at any time and walk out of the station.
See
United States v. Ruggles
,
Two officers were present for the interview, both dressed in casual plain clothes and neither displaying any weapons. Haak himself was unrestrained throughout the interview.
See
Parsad v. Greiner
,
The district court acknowledged that these two sets of circumstances "largely cut in favor of finding Haak's statements to be voluntary."
In sum, even if there is any ambiguity in the quoted police statements as to the benefit Haak might derive from cooperation, the totality of circumstances does not manifest police coercion but rather weighs convincingly in favor of voluntariness. Accordingly, the suppression of Haak's statements as constitutionally involuntary is unwarranted.
CONCLUSION
For the reasons stated, we conclude that the police did not falsely promise Haak immunity from prosecution in return for his cooperation. In the absence of such a promise, nothing in the totality of circumstances demonstrates that Haak's will was overborne during his non-custodial police interview so as to render the statements he made at that time constitutionally involuntary. To the contrary, the totality of circumstances indicates that Haak's statements were voluntary.
Accordingly, the district court order suppressing Haak's March 4, 2015 statements is REVERSED, and the case is REMANDED for further proceedings consistent with this opinion.
The parties did not prepare a transcript of the video recording, which presents no audibility problems. Accordingly, the statements quoted here are drawn from the court's own review. Any differences between these quotations and those of the district court are minor and immaterial to resolution of this appeal.
As the district court observed, the Miranda warning that Zawierucha neglected to give Haak was that anything he said could be used against him.
On July 1, 2015, Tessina was indicted for possessing with intent to distribute and distributing heroin and fentanyl on March 9 (Count One), and possessing with intent to distribute heroin and fentanyl on March 10 (Count Two), in violation of
See generally Cambridge English Dictionary, https://dictionary.cambridge.org/us/dictionary/english/screw (last visited Feb. 22, 2018) (including "deceive someone" among American slang meanings of "screw").
See generally Merriam-Webster Learner's Dictionary, http://www.learnersdictionary.com/definition/sandbag (last visited Feb. 22, 2018) (stating "sandbag" is "used figuratively to describe treating ... someone unfairly").
See generally Longman Dictionary of Contemporary English, https://www.ldoceonline.com/dictionary/mess-with (last visited Feb. 22, 2018) (including "to deceive" among meanings of phrasal verb "to mess with somebody / something").
See generally Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/come% 20after (last visited Feb. 22, 2018) (including "to try to find or capture (someone you want to hurt or punish)" among meanings of phrasal verb "come after").
Thus, to the extent Haak's brief might be construed to revive his threat challenge, the argument fails on the merits.
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