APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. (D.C. Criminal No. 92-00472-01).
Before: Stapleton, Roth and Lewis, Circuit Judges.
Raynard Walton was convicted of one count of conspiracy to traffic in firearms without a license in violation of 18 U.S.C. § 922(a)(1)(A). Key to his conviction was the government's introduction into evidence of a confession Walton gave to agents investigating him. Because one of the agents assured Walton that his statements to them would not be used against him, and in view of the totality of the circumstances surrounding his encounter with the agents, we hold that the confession should not have been admitted at trial. We further hold that the erroneous admission of the confession was not harmless. Therefore, we will reverse Walton's conviction.
On September 14, 1990, Lorenzo Toledo, an undercover agent with the Bureau of Alcohol, Tobacco and Firearms ("ATF") in Plainfield, New Jersey, bought a Davis .380 semi-automatic pistol with a defaced serial number from Tyrone Morris, who was not licensed to deal in firearms. An ATF firearms examiner "recovered" the serial number and identified it as either AP060328 or AP060528. Two weeks prior to the date of the sale, Walton, who did have a firearms license, had purchased a Davis .380 semi-automatic with serial number AP060528.
On September 27, 1990, Toledo bought a Tokarev/Norinco 9 millimeter semi-automatic pistol with a defaced serial number from Morris. The "recovered" serial number was 308991. Three weeks prior to this sale, Walton had purchased a 9 millimeter semi-automatic pistol with serial number 308991.
On October 2, 1990, Toledo returned to Morris's home in Plainfield to purchase another firearm. Morris was talking to a man on a motorcycle, who sped away when Toledo approached. The motorcycle was registered to Walton, and Toledo later identified Walton as the man who rode it. Morris sold Toledo a Tec-9, 9-millimeter semi-assault pistol with a defaced serial number. The firearms examiner could not recover a complete serial number, succeeding only in identifying: "1 ] ] ] 33." In late August, Walton had purchased a Tec-9, 9-millimeter pistol with serial number 119553.
On October 10, 1990, Toledo purchased a Tokarev 9-millimeter semi-automatic pistol with a defaced serial number. The "recovered" serial number was either 315811 or 345811. In early September, Walton had purchased a Tokarev 9-millimeter pistol with serial number 315311.
In late November, Toledo discussed with Morris the possibility of purchasing many firearms. On the day he arranged the purchase, he was told that Morris's source for the firearms would be arriving at around 5:00 p.m. When Toledo arrived at Morris's house shortly after 5:00 p.m., another car, driven by defendant Walton, was also waiting in Morris's driveway. Toledo recognized Walton, who looked at Morris's window as if he were waiting for Morris to appear, "put up his hands . . . saying I guess, he's not here," and left. Morris never came downstairs to meet Toledo.
Morris was arrested in February 1991, and named Walton as his source for firearms in a written statement. He said Walton had supplied him with the firearms even though Walton knew Morris had previously spent time in jail. He also said that Walton had offered to obtain firearms for Morris whenever needed.
Because Morris had implicated Walton, ATF conducted a regulatory inspection of Walton's home at the address listed on his firearms license. Under federal firearms regulations, licensees must permit such an inspection once a year and must provide access to required records of purchases and sales. The agents did not inform Walton that he was suspected of being Morris's source of firearms; they allowed him to believe the inspection was solely regulatory.
During the inspection, at which both Toledo and ATF agent Kent Montford were present, Walton told the agents that he had no records for them to inspect and that the only two occasions on which he had used his license to purchase firearms had been in 1986 and 1987. After being advised of and waiving his Miranda rights, Walton repeated these assertions in a written statement. In fact, invoices later revealed that Walton had used his license to purchase 23 firearms during the period from August through November 1990, as well as additional purchases dating back to September 1989.
The day after the inspection, Walton called Montford and stated he wanted to meet Montford and Toledo at an open area outside the local library in Plainfield to talk to the agents off the record. Walton knew Montford because they had attended school in the same school system at approximately the same time and had wrestled in the same program in high school.
Toledo, Montford and Walton met on a park bench. During the meeting, which lasted a half-hour to 40 minutes, Toledo did most of the talking. Early in the conversation, Montford told Walton, "I've known you for a long time. If you want, you can tell us what happened off the cuff." Montford also told Walton he could leave at any time and did not have to say anything until he spoke to an attorney, although it is unclear when during their conversation this advice was given. Walton was not apprised of his Miranda rights as he had been during the regulatory search the previous day.
Five or ten minutes into the meeting, Walton admitted to Toledo and Montford that he had provided the firearms Morris sold. Walton told the agents he did not know what he should do and that he wanted Montford to help him because Montford was his friend. He told the agents he had become involved in illegal firearms trafficking because he needed money to buy a house.
One month later, the government charged Walton with conspiring with Morris to deal in firearms illegally. Before trial, Walton moved to suppress the evidence of his oral statement to Toledo and Montford. Following a suppression hearing, the district court denied his motion, even though Montford testified at the hearing that it had been his understanding and intention that the agents "weren't going to use this [the statement] against him [Walton]." At trial, Montford again discussed what had happened, saying, "I . . . think as a human or person, if someone told you something and you gave him the word you weren't going to use this against him. . . . That is the reason why I didn't read him rights or tell him you're under arrest or contained in this area; you couldn't leave." Montford only learned that Walton's statement would be used against him when he met with the Assistant United States Attorney handling the case, who said it could be used.
In his defense, Walton testified that he had purchased the firearms for which he had failed to keep records to mail to his brother, who was stationed with the military in Panama. He was ...