Agent Bramley replied that he could not grant him immunity and explained that immunity was in the hands of the United States Attorney, but "that I would act very stringently on his behalf in bringing his cooperation to the attention of the United States Attorney's office...." (N.T. 17). Mr. Sibley then proceeded to tell the agents about his taking money from the operators of Moyer's Landfill. The interview lasted for 45 minutes to an hour. (N.T. 19). No Miranda warning was given to the defendant. (N.T. 19). Mr. Sibley had come voluntarily to the Lansdale FBI office. He was not charged with a crime, and was not in custody nor was he placed under arrest. A few days later, Agent Bramley telephoned Mr. Sibley and told him that the United States Attorney wanted to talk to him on June 3, 1981, in the office of the United States Attorney.
On June 3, 1981, Mr. Sibley joined the agents and Assistant United States Attorneys Peter Smith and Geoffrey Beauchamp in Mr. Smith's office in the United States Courthouse in Philadelphia. Mr. Smith told the defendant that the United States intended to prosecute him but would treat him as leniently as possible under the circumstances. (N.T. 23). As on the two previous occasions (the May 20 and May 26 meetings), the defendant was not given a Miranda warning. He was told, however, that he should retain counsel. The defendant was then shown a typed memorandum containing the statement which he made at the May 26 meeting in the FBI office in Lansdale. He made some corrections and then signed the memorandum. (N.T. 24).
The defendant contends that the statements taken from him on May 20, May 26 and June 3, 1981, and all evidence, statements and testimony derived, directly and indirectly therefrom, should be suppressed because the aforesaid statements "were obtained in violation of the defendant's privilege against self-incrimination and in violation of due process of law," "were coerced and involuntarily made", were made without the assistance of counsel, and were made in response to statements of the government agents which overbore the defendant's will. In essence, the defendant contends that the totality of the circumstances surrounding the defendant's statements to the Agents makes the statements involuntary. The defendant relies upon Bram v. United States, 168 U.S. 532, 18 S. Ct. 183, 42 L. Ed. 568 (1897).
It is well settled that in testing the voluntariness of a statement, the Court must determine whether the government's behavior was such as to overbear the defendant's will to resist and therefore bring about a statement not freely self-determined. Rogers v. Richmond, 365 U.S. 534, 544, 81 S. Ct. 735, 741, 5 L. Ed. 2d 760 (1961); United States v. Pomares, 499 F.2d 1220, 1222 (2d Cir. 1974). In making such a determination, the Court must consider the entire set of circumstances resulting in the inculpatory statement. See Beckwith v. United States, 425 U.S. 341, 347-48, 96 S. Ct. 1612, 1616-17, 48 L. Ed. 2d 1 (1976); Brady v. United States, 397 U.S. 742, 749, 90 S. Ct. 1463, 1469, 25 L. Ed. 2d 747 (1970).
The instant case presents a factual situation falling between the two extremes of an obviously voluntary statement given with no inducement and an obviously involuntary confession obtained under harsh custodial interrogation. Consequently, it is not surprising that neither the prosecution nor the defense has cited a case on all fours with the circumstances presented.
Both parties agree that the defendant was not in custody during any of the three discussions with government's Agents. It is agreed that the government was not obligated to give Mr. Sibley a Miranda warning on any of the three occasions. Thus, the only question to be decided by the Court is whether the government's conduct reasonably induced the defendant to believe that in the event he gave a full and complete statement he would not be prosecuted. In other words, provided the circumstances herein presented Mr. Sibley with a reasonable basis for believing that in the event he gave a statement he would not be prosecuted, then his statements can be found involuntary and should be suppressed.
A close examination of the totality of the circumstances surrounding the questioning of Mr. Sibley indicates that his statements of May 26, 1981 and June 3, 1981 were given voluntarily with full knowledge that he might be charged with a crime. At the outset of his May 26 meeting with Agents Bramley and Graff, Mr. Sibley asked about immunity, a question which showed that he was aware of his status as a potential defendant. After he asked about immunity, he was told that only the United States Attorney could confer immunity. Having been advised of the inability of Agents Bramley and Graff to confer immunity, the defendant nonetheless proceeded to give a full and complete statement of his involvement with Moyer's Landfill. Such a statement, given freely while the defendant was not in custody, was a voluntary statement. While Agents Bramley and Graff may have stressed Mr. Sibley's role as a witness, they never represented that he would not not be a defendant or that he would be granted immunity. Mr. Sibley was well aware that he might be prosecuted.
At the outset of the June 3 meeting in Assistant United States Attorney Smith's office here in the Courthouse, Mr. Sibley was advised of the government's intention to prosecute him. Mr. Sibley did not make any inquiry concerning immunity. Thus, in the face of absolute knowledge that he would be prosecuted, Mr. Sibley read, corrected, and signed a memorandum memorializing his May 26 statements to Agents Bramley and Graff. At no time during the June 3 meeting did the defendant express surprise over the government's decision to prosecute, nor did he complain that he had been led to believe he would receive immunity. If Mr. Sibley had been induced to believe that he was or would be immunized, he certainly would have made this known at the time Mr. Smith announced the government's decision to prosecute.
The totality of the circumstances surrounding Mr. Sibley's May 26 and June 3 statements gave no indication that his will was in any way overborne by the government, either by inducement or coercion. Thus, his statements at those meetings meet the test of voluntariness set forth in Rogers v. Richmond, 365 U.S. 534, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961). Mr. Sibley's May 20 statements to Agents Bramley and Graff were likewise voluntary. However, the defendant made no incriminating statements at the May 20 meeting.
In many cases, courts have reviewed the promise of the government to call to the attention of the United States Attorney the fact that the defendant has cooperated by giving a statement. Such inducements have consistently been held by the courts as not rendering the resulting statements involuntarily. See United States v. Cone, 354 F.2d 119, 121 (2d Cir. 1965); United States v. Fera, 616 F.2d 590, 594-95 (1st Cir. 1980); United States v. Glasgow, 451 F.2d 557 (9th Cir. 1971); United States v. Frazier, 434 F.2d 994 (5th Cir. 1970).
In an exhaustive survey of the law of coerced confessions, the Bram Court examined both English and American cases. In almost all of the cases reviewed by the Court in Bram, the defendant whose confession was determined involuntary was in police custody and had been subjected to a "third degree" type of questioning. While Bram has never been overruled, cases such as Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), have established requirements concerning the warnings which must be given criminal suspects. As a result, several circuit courts have questioned the complete applicability of Bram to non-custodial questioning.
In United States v. Reynolds, 532 F.2d 1150 (7th Cir. 1976), the Seventh Circuit noted
It is true that it has been said that any promise, "however slight', which induces a confession renders it involuntary and hence inadmissible. (citing Bram). This is, however, hardly the rule today.
532 F.2d at 1158. The Court noted that many subsequent decisions had upheld convictions that could arguably be termed slightly induced through promises of consideration in return for cooperation. 532 F.2d at 1158-1160, and that today the test for voluntariness is more correctly based on an examination of the totality of the circumstances surrounding the conviction. 532 F.2d at 1159-60.
In United States v. Ferrara, 377 F.2d 16 (2d Cir.), cert. denied, 389 U.S. 908, 88 S. Ct. 225, 19 L. Ed. 2d 225 (1967), the Second Circuit stated:
The Bram opinion cites with approval the statement in an English textbook that a confession is not voluntary if "obtained by any direct or implied promises, however slight'. That language has never been applied with the wooden literalness urged upon us by appellant. The Supreme Court has consistently made clear that the test of voluntariness is whether an examination of all the circumstances discloses that the conduct of "law enforcement officials was such as to overbear (the defendant's) will to resist and bring about confession not freely self-determined....'
377 F.2d at 17, citing Rogers v. Richmond, supra.
The Fifth and Ninth Circuits have likewise limited the broad language of Bram that any promise, however slight, which induces a confession, renders it involuntary and inadmissible. See, e.g., United States v. Frazier, 434 F.2d 994 (5th Cir. 1970); United States v. Cluchette, 465 F.2d 749, 754 (9th Cir. 1972); United States v. Glasgow, 451 F.2d 557, 558 (9th Cir. 1971).
Based upon the evidence presented at the hearing, this Court concludes that Mr. Sibley's statements of May 20, May 26, and June 3 were voluntary in all respects. Therefore, for the reasons heretofore set forth, the Court on January 12, 1982 denied defendant's motion to suppress.
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