and began emptying money out of a pinball machine.
21. Conley approached the bar to speak with the bartender regarding the division of the money taken from the machines. Conley recognized S.A. Donnelly. S.A. Donnelly initiated a conversation with Conley, saying hello and calling him as "John" or "Duffy."
22. S.A. Donnelly reintroduced himself, reminding Conley that he was the FBI agent who had visited him. Conley indicated that he remembered him. S.A. Donnelly also introduced Patricia Moriarity as an FBI agent.
23. S.A. Donnelly asked Conley whether the pinball machines on the premises were Conley's machines and whether the video poker machines on the premises were Conley's machines. Conley answered that the machines were his machines.
24. S.A. Donnelly then invited Conley to sit down, have some coffee and talk. Conley replied that he was late for an errand and had to leave, but he was willing to return and talk.
25. S.A. Donnelly and S.A. Moriarity escorted Conley outside, and Conley left on his errand. The agents went to their car to wait and see if Conley would return.
26. The initial encounter at the Main Hotel lasted approximately five minutes.
27. Between fifteen and thirty minutes passed, but Conley in fact returned to talk to S.A. Donnelly. S.A. Donnelly, S.A. Moriarity and Conley reconvened in the bar of the Main Hotel.
28. S.A. Donnelly did not inform Conley whether they were speaking on the record or off the record.
29. S.A. Donnelly did not inform Conley whether Conley's statements would be used against him.
30. S.A. Donnelly did not inform Conley of his Miranda rights.
31. After Conley mentioned that he had ongoing legal problems implicating his association with the Pennsylvania Association of Video Operators ("PAVO"), S.A. Donnelly informed Conley that Conley was under no obligation to speak with him and informed Conley that the agents "did not want to hear anything about that, about his legal problems at all." (N.T. July 8, 1992, at 8).
32. S.A. Donnelly stated that he had observed patrons of the Main Hotel receiving pay-offs from the bartender. Conley replied that such a scenario was entirely possible.
33. S.A. Donnelly and Conley discussed PAVO.
34. When S.A. Donnelly opined that Conley was in violation of federal law, Conley inquired as to what federal law he was violating. S.A. Donnelly cited the Illegal Gambling Business statute, and Conley expressed ignorance of the provisions of that statute. S.A. Donnelly then told Conley that he should ask his counsel about the statute and asked Conley who represented him. At that point, Conley informed S.A. Donnelly that his counsel was William Difenderfer.
35. S.A. Donnelly never told Conley that he had a right to consult counsel during the encounter. S.A. Donnelly never told Conley that he should discuss his conduct with counsel before making any incriminating statements.
36. S.A. Donnelly and Conley discussed Conley's recent arrest on state gambling charges and the preliminary hearing scheduled for November 3, 1989.
37. In response to a question regarding his conduct being illegal under state and federal law, Conley stated that he had no intention of leaving the video poker machine business. Conley stated that poker machine locations and his employees were dependent upon the business, and he had no intention of laying-off employees.
38. S.A. Donnelly broached the subject of the Arnold Coin Company, asking Conley if he had found any information. Conley admitted that he had done business with the company through an informal partnership, but Arnold Coin Co. sent a letter stating that it did not want to continue the relationship.
39. S.A. Donnelly asked if Conley had found out what locations Ninny Lagatutta had. Conley stated S.A. Donnelly probably knew as well as he did, because Conley's only way of knowing was his own involvement with video poker machines in town. Conley further stated that he knew Ninny Lagatutta and spoke with him about machines, but Conley did not have information about Ninny Lagatutta being involved in anything else.
40. S.A. Donnelly urged Conley to find out more about Ninny Lagatutta. Conley stated that if he heard anything more, he would let S.A. Donnelly know.
41. S.A. Donnelly asked Conley if he had any information on Sonny Ciancutti and the New Kensington area.
42. S.A. Donnelly asked if Sonny Ciancutti or Ninny Lagatutta had ever approached Conley seeking "tribute" or trying to "muscle" him. Conley stated that he had never been approached by any organized crime figure. He further stated a belief that the federal government had declared poker machines illegal because organized crime was mistakenly believed to have infiltrated the video poker machine business.
43. The encounter ended amicably, with Conley acknowledging that he had S.A. Donnelly's telephone number in the event that he had more information.
44. The second encounter at the Main Hotel lasted twenty to thirty minutes.
45. Neither S.A. Donnelly nor Conley took notes during, or otherwise recorded, the encounters at the Main Hotel.
46. S.A. Donnelly maintained a friendly demeanor throughout both encounters with Conley at the Main Hotel.
47. S.A. Moriarity observed, but did not participate in, the conversations between S.A. Donnelly and Conley during the second encounter at the Main Hotel.
48. At the conclusion of the second encounter, S.A. Donnelly returned to his office in Pittsburgh and wrote out a draft FD-302, which was subsequently typed.
49. S.A. Donnelly did not believe that the encounter at the Main Hotel was off the record.
50. Conley believed that the encounter at the Main Hotel was off the record. Conley would not have engaged S.A. Donnelly in this conversation had Conley believed that it was on the record.
51. Conley's belief that the encounter at the Main Hotel was off the record was reasonable under the totality of the circumstances.
52. On October 30, 1989, Conley was around twenty-nine or thirty years old.
53. Conley is neither uneducated nor unintelligent.
Statements not obtained in violation of a person's Miranda rights or right to counsel are nonetheless subject to suppression as violative of due process if the statements are "coerced" or "involuntary." Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 1253-54, 113 L. Ed. 2d 302 (1991); Lego v Twomey, 404 U.S. 477, 483, 30 L. Ed. 2d 618, 92 S. Ct. 619 (1972). A statement is coerced or involuntary if the behavior of "law enforcement officials was such as to overcome the will to resist and bring about a confession not freely self-determined." Rogers v. Richmond, 365 U.S. 534, 544, 5 L. Ed. 2d 760, 81 S. Ct. 735 (1960). Coercive police activity is a necessary predicate to finding a confession involuntary. Colorado v. Connelly, 479 U.S. 157, 167, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986). There must be some causal connection between the police conduct and the confession. Id. at 164, n.1. It is the government's burden to show by a preponderance of the evidence that the challenged statements are voluntary. Lego, 404 U.S. at 483. The ultimate issue of voluntariness, however, is a question of law for the Court. Fulminante, 499 U.S. at , 111 S. Ct. at 1252.
The Court must examine the totality of the circumstances in order to determine if a confession was coerced or involuntary. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). In determining whether the defendant's will was overborne in a particular case, a court must assess the totality of all the surrounding circumstances, both the characteristics of the accused and the details of the interrogation. Schneckloth, 412 U.S. at 266. For example, a court should look to the following:
the youth of the accused; his lack of education or low intelligence; the lack of any advice to the accused of his Constitutional rights; the length of the detention; the repeated and prolonged nature of the questioning; and the use of physical punishment such as deprivation of food or sleep.
Id. at 226. It is well established that an involuntary confession may result from psychological, as well as physical, coercion. Miller v. Fenton, 796 F.2d 598, 603 (3d Cir.), cert. denied, 479 U.S. 989 (1986).
A promise by a law-enforcement officer may qualify, under the circumstances, as coercion. See Hutto v. Ross, 429 U.S. 28, 30, 50 L. Ed. 2d 194, 97 S. Ct. 202 (1976); Shotwell Mfg. Co. v. United States, 371 U.S. 341, 347-48, 9 L. Ed. 2d 357, 83 S. Ct. 448, rehearing denied, 372 U.S. 950, 9 L. Ed. 2d 975, 83 S. Ct. 931 (1963); Bram v. United States, 168 U.S. 532, 42 L. Ed. 568, 18 S. Ct. 183 (1897); United States v. Fraction, 795 F.2d 12, 14-15 (3d Cir. 1986); United States v. Pinto, 671 F. Supp. 41, 59-60 (D. Maine 1987). In particular, where an express or implied promise not to use statements against, or not to prosecute, a declarant is made, see Fraction, 795 F.2d at 14-15, is not contingent or qualified, see Shotwell Mfg. Co., 371 U.S. at 348-52; United States v. Fountain, 776 F.2d 878, 884 (10th Cir. 1985); United States v. Nussen, 531 F.2d 15, 20-21 (2d Cir.), cert. denied, 429 U.S. 839, 50 L. Ed. 2d 107, 97 S. Ct. 112 (1976), and in fact induces the statement, see Fraction, 795 F.2d at 15; Fountain, 776 F.2d at 885-86, the promise is of such a nature that it can easily be found to have overcome a person's resistance to giving a statement to authorities. Shotwell Mfg. Co., 371 U.S. at 347-48; United States v. Powe, 192 U.S. App. D.C. 224, 591 F.2d 833, 845 & n.36 (D.C. Cir. 1978); Grades v. Boles, 398 F.2d 409, 412 (4th Cir. 1968); Pinto, 671 F. Supp. at 56-58; see also Rowe v. Griffin, 676 F.2d 524, 527 (11th Cir. 1982) ("We note that, under the self-incrimination clause of the fifth amendment, evidence of guilt induced by a government promise of immunity is 'coerced' evidence and may not be used against the accused") (dictum).
A promise that statements made will not be used against the declarant purports to remove the specter of proving one's own guilt by making a statement. Such a promise is a truly powerful one, going to the heart of a declarant's reservations about giving a statement.
Cf. Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir. 1992) (Police trickery in form of exaggerating the strength of evidence against a defendant "did not interject the type of extrinsic consideration that would overcome [the defendant's] will by distorting an otherwise rational choice of whether to confess or remain silent"), cert. denied, 122 L. Ed. 2d 360, U.S. , 113 S. Ct. 1053 (1993).
Promises to inform the prosecutor of cooperation or to provide mental treatment are distinguishable from promises not to use statements because the former promises are addressed to collateral problems. Miller v. Fenton, 796 F.2d 598, 610 (3d Cir. 1986) ("While promises of help with collateral problems have been found, in combination with other coercive factors, to render confessions involuntary, . . . in general, such promises are less coercive to the accused than promises directly related to the criminal proceedings at hand") (citations omitted); see also Streetman v. Lynaugh, 812 F.2d 950, 957 (5th Cir. 1987) ("Certain promises, if not kept, are so attractive that they render a resulting confession involuntary. . . . A promise of immediate release or that any statement will not be used against the accused is such a promise") (citations omitted); United States v. Shears, 762 F.2d 397, 402 & nn. 4-5; State v. Waugh, 238 Kan. 537, 712 P.2d 1243 (1986); State v. Erks, 214 Neb. 302, 333 N.W.2d 776 (1983); State v. Rook, 304 N.C. 201, 283 S.E.2d 732 (1981), cert. denied, 455 U.S. 1038, 72 L. Ed. 2d 155, 102 S. Ct. 1741 (1982).
Once coercion infects the dynamic of the investigative process, the process is tainted until the circumstances have evolved in such a manner as to dissipate or attenuate the taint of the coercion. See Oregon v. Elstad, 470 U.S. 298, 310, 84 L. Ed. 2d 222, 105 S. Ct. 1285 (1985); Westover v. United States, 382 U.S. 969, 15 L. Ed. 2d 463, 86 S. Ct. 561 (1966); United States v. Anderson, 929 F.2d 96, 102 (2d Cir. 1991); Quartararo v. Mantello, 715 F. Supp. 449, 460-66 (E.D.N.Y.)(taint of promises of lenience not dissipated), aff'd, 888 F.2d 126 (2nd Cir. 1989);. As the Elstad Court indicated regarding successive confessions:
When a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession. See Westover v. United States, decided together with Miranda v. Arizona, 384 U.S., at 436, 86 S. Ct., at 1602; Clewis v. Texas, 386 U.S. 707, 87 S. Ct. 1338, 18 L. Ed. 2d 423 (1967).