United States of America v. Ramiro Astello

JOHN R. GIBSON, Circuit Judge.

Ramiro Astello appeals the district court’s 2 deniál of his motion to suppress two statements he made to the police in conjunction with an investigation of the kidnapping and murder of Sky Erickson. The statements were admitted at trial, and the jury convicted Astello of kidnapping, conspiracy to commit kidnapping, and use of a firearm in relationship to a crime of violence, in violation of 18 U.S.C. §§ 1201(a), 1201(c), and 924(c) (1994 & Supp. IV 1998). Astello received a mandatory life sentence. We affirm.

On June 6, 1997, Erickson was taken from Iowa to an abandoned Minnesota farmhouse, where he was shot and killed. After an investigation and pursuant to a warrant, the police arrested Astello at his home in Estherville, Iowa on June 19. An Estherville officer took Astello to the Em-met County Sheriff Chief Deputy’s office. At the office, FBI agent Robert Birnie and Minnesota agent Don Enger informed As-tello of his Miranda rights.3 Astello signed a waiver-of-rights form at approximately 6:45 p.m.

During the questioning, the agents informed Astello that he had been arrested for kidnapping that resulted in death and that the penalty for the crime in Iowa was life in prison with no chance of parole. They also told him that he could be charged under Minnesota or federal law for the same crime. At first, Astello denied that he was involved in the kidnapping and murder. Less than an hour after the interrogation began, Astello began telling the agents what happened the night of the kidnapping. The interrogation concluded at 9:26 p.m.

Later that night, Astello asked to see the two agents again. He met with them on June 20 and supplemented his earlier statement with additional details of Erickson’s kidnapping and death.

Before trial, Astello moved to suppress the two statements as involuntary. The district court referred the motion to a magistrate judge, who found that the first statement was involuntary but that the second was not. The district court rejected the magistrate’s finding that the June 19 statement was coerced, held that both statements were voluntary, and denied As-tello’s motion to suppress. Astello appeals, arguing that the agents coeí-eed his first statement and that this tainted his second statement.

We review the district court’s ultimate determination of voluntariness de novo, but we review the factual findings underlying that determination for clear error. United States v. Otters, 197 F.3d 316, 317 (8th Cir.1999). The government must prove by a preponderance of the evidence that the challenged statements were voluntary. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).

It is undisputed that Astello received the Miranda warnings and waived his rights at the beginning of the June 19 interrogation: “[C]ases in which a defendant can make a colorable argument that a self-incriminating statement was ‘compelled’ despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare.” Berkemer v. McCarty, 468 U.S. 420, 433, 104 S.Ct. 3138, 82 L.Ed.2d 317 n.20 (1984).

*967To determine whether this is one of those rare cases, we consider the totality of the circumstances surrounding Astello’s confession, focusing on both the conduct of the agents and Astello’s capacity to resist pressure to confess. See United States v. Kilgore, 58 F.3d 350, 353 (8th Cir.1995). “The appropriate test for determining the voluntariness of a confession is whether the confession was extracted by threats, violence, or direct or implied promises, such that the defendant’s will was overborne and his capacity for self-determination critically impaired.” Id. (internal quotations and citation omitted).

In support of his argument that his June 19 statement was involuntary, Astello relies most heavily on the fact that he was not allowed to see his mother. During the interrogation, Astello, who was eighteen years old, asked to see his mother: “Well, if you give me a last chance to talk to my mom at least right now before I say anything, cuz I think I’ll just stick with the truth then.” After several more minutes of discussion between Astello and the agents, Astello repeated his request: “I want to talk to my mom first. Then I’ll talk. Yeah, I was involved in it, that’s all. You wanna hear that? I was involved in it.... I know what went on and everything about it. I told you I need to talk to my mom first.” When Enger asked what he wanted to talk to his mother about, Astello responded, “Just to tell her I’m— what’s goin’ on.” Enger then told Astello that he could talk to his mother after he told them what happened, and Astello agreed. While Astello may have been seeking guidance, Ms words indicate that he asked to see his mother after he had decided to confess. After considering all the circumstances, we hold that the agents’ failure to allow Astello to speak to his mother does not render his statement involuntary. Cf. United States ex rel. Riley v. Franzen, 653 F.2d 1153, 1160-62 (7th Cir.1981) (adopting a case-by-case approach to determine whether denial of a juvenile’s request for a parent renders a confession inadmissible); Rone v. Wyrick, 764 F.2d 532, 535 (8th Cir.1985) (parental presence not mandatory tor juvenile’s confession to be admissible in federal court).

Astello also alleges that the agents improperly used several tactics to coerce him to confess. He argues that they placed time constraints on his decision whether to talk to them, thus subjecting him to psychological pressure; they made false promises; and they played on his emotions and used his respect for his family against him. Obviously, interrogation of a suspect will involve some pressure because its purpose is to elicit a confession. In order to obtain the desired result, interrogators use a laundry list of tactics. See Richard A. Leo, Inside the Interrogation Room, 86 J.Crim. L. & Criminology 266, 278 (1996). “Numerous cases have held that questioning tactics such as a raised voice, deception, or a sympathetic attitude on the part of the interrogator will not render a confession involuntary unless the overall impact of the interrogation caused the defendant’s will to be overborne.” Jenner v. Smith, 982 F.2d 329, 334 (8th Cir.1993).

Here, the agents used a train analogy, telling Astello that the train was leaving the station and those who told the truth would be on the train while those left behind at the station would be charged with the crime. They said that the train was getting crowded, and that those who were on the train would testify against him. Certainly, these statements may have influenced Astello’s decision to tell the truth. Having carefully read and listened to the June 19 interrogation in its entirety, however, we conclude that the statements were “not so coercive as to deprive [Astello] of [his] ability to make an unconstrained decision to confess.” United States v. Mendoza, 85 F.3d 1347, 1351 (8th Cir.1996).

At times during the interrogation, the agents„seemed to imply that Astello would get something less than life in prison if he confessed. On more than one occasion, however, they specifically told Astello that *968they could not make any promises. In any event, a promise of leniency does not necessarily make a statement involuntary. See Kilgore, 58 F.3d at 358. In Sumpter v. Nix, 863 F.2d 563, 565 (8th Cir.1988), we concluded that a confession was voluntary even though the defendant alleged that his interrogators made implied promises of leniency. The defendant’s knowledge that confessing would be risky supported our conclusion. Id. Similarly, Astello knew the risks of confessing. At one point during the questioning, he said, “If I say the truth, I’m still goiri in.” Later in the interrogation, he stated, “Yeah, I’m gonna tell the truth, because I guess we’re all gonna be punished for what we did .... ”

The agents told Astello that he had disgraced his family and that his lies dishonored his family. They also told him that he had broken his father’s heart. Astello did not seem to be affected in the least by this “family dishonor” interrogation tactic. Immediately after Enger said, “[W]hy do you persist in bringing dishonor to your family, persist in bringing dishonor to you by lyin’? I mean you have nothing to gain.... [Yjorire the last of the tough guys, and everyone that is tougher than you is goiri down? Come on,” Astello commented, “That’s a shame, huh?” and laughed. Astello’s response indicates that his will was not overborne.

Finally, Astello argues that his age, limited education, and lack of experience with the criminal justice system weigh in favor of involuntariness. Astello turned eighteen only two weeks before he confessed to his involvement in the kidnapping. He had completed eleventh grade and had been arrested on two different dates for three crimes: possession of stolen property, assault, and disorderly conduct. These charges were waived from juvenile court and eventually dismissed after he was arrested in this case. The district court found that Astello was “a mature, self-assured eighteen year old person. It is clear that defendant had the capacity to understand, and did understand, what was being said at the interview, and that he had the capacity to measure his response.” The district court also found that Astello’s “prior dealings with ■ the criminal justice system would have allowed him to more fully comprehend the serious situation in which he found himself and [rendered him] less likely to be intimidated by the agents.” These findings are not clearly erroneous, and they support the district court’s determination that Astello’s June 19 statement was voluntary.

Astello knew his rights and understood the consequences of committing the crime for which he was arrested. He was questioned for less than three hours and was not mistreated in any way. Police interrogation tactics are designed to elicit a response, and the fact that the tactics produced the intended result here does not make Astello’s confession involuntary. This, of course, does not mean that we condone any of the tactics used by the agents in this case. We see no indication, however, that Astello’s will was overborne and his capacity for self-determination critically impaired.

With regard to the June 20 statement, Astello argues only that the coercion that led to his first statement tainted the second. As we have concluded that his first statement was voluntary, there is no question that the second was admissible as well.

We affirm the judgment of the district court.

. The Honorable Mark W. Bennett, United Stales District Judge for the Northern District of Iowa.

. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Astello had been informed of his rights at the time of his arrest as well.