On Appeal from the United States District Court for the Middle District of Pennsylvania. (D.C. Crim. No. 92-00286-02).
Before: Greenberg and Roth, Circuit Judges, and Fullam, District Judge*fn*
GREENBERG, Circuit Judge.
I. FACTUAL AND PROCEDURAL BACKGROUND
The United States appeals from an order of April 28, 1993, insofar as it suppressed statements given by the appellee Patrick William Swint to federal agents on May 2, 1991.*fn1 The background of the case is as follows. Pennsylvania authorities arrested Swint on November 1, 1990, on state drug charges. Subsequently, a state court released Swint on bail. Thereafter Swint and his attorney discussed with the state authorities, particularly Kevin Kelly, a Delaware County deputy district attorney, the possibility that Swint would cooperate with them. As of April 1991, however, Swint had provided little, if any, assistance. Moreover, on March 11, 1991, agents of the Drug Enforcement Administration had observed Swint accepting precursor chemicals used to manufacture methamphetamine. As a result of this observation, Special Agent Keith Miller of the DEA asked Kelly to arrange a meeting with Swint. Kelly telephoned Swint's attorney, Michael Dignazio, to arrange a Discussion about possible cooperation and a plea agreement and Kelly and Dignazio scheduled a meeting for May 2, 1991. Kelly, however, did not tell Dignazio or Swint that the DEA would be represented at the meeting or that there would be a Discussion regarding possible federal charges.
On May 2, 1991, Dignazio's associate, Douglas Smith, accompanied Swint to the meeting at the offices of the Criminal Investigation Division of the Delaware County District Attorney's Office at the Delaware County Courthouse. All original parties to this meeting, namely Kelly, Smith, and Swint, as well as Dignazio who did not attend, understood that the meeting was to be for Swint to make an off-the-record proffer regarding the cooperation he could provide in exchange for a negotiated plea on the outstanding state charges against him. Such off-the-record meetings are customary in Delaware County.
During the first stage of the meeting, Swint, Smith, Kelly, and other state and local law enforcement officers briefly discussed Swint's post-arrest conduct. After Swint denied having been involved in post-arrest drug activity, Kelly left the room and returned with federal agents, including Miller, and the meeting entered a second stage.
During this second stage the federal agents confronted Swint with evidence of his post-arrest drug activity. They advised Swint that it was likely federal authorities would arrest him at some point, that he faced serious federal charges, and that he should cooperate with the federal investigation. Specifically, Miller told Swint that he had a warrant for Swint's arrest on federal drug charges which carried a ten-year mandatory sentence, and that he could arrest Swint with the warrant. Moreover, Kelly testified that he may have mentioned that Miller might take Swint into custody and that Swint's bail might be revoked based on the DEA's evidence of his post-arrest criminal conduct. After being confronted with the evidence supporting federal charges against him and advised to cooperate, Swint consulted privately with Smith. He then agreed to make a statement and to cooperate with the federal agents. Believing that his "job was finished," Smith left the District Attorney's office, as he did not want to get involved in Swint's actual cooperation.
During the third stage of the meeting the DEA agents questioned Swint who was then without counsel.*fn2 At that time, Swint made the inculpatory statements involved on this appeal. The government concedes that no person on May 2, 1991, at the offices of the District Attorney gave Swint warnings in conformity with Miran da v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).*fn3
On November 3, 1992, a federal grand jury returned an indictment against Swint for conspiracy to manufacture, distribute and possess with intent to manufacture and distribute methamphetamine and P2P. Swint pleaded not guilty, and on January 4, 1993, he filed a motion to suppress the statements he made to the DEA agents on May 2, 1991. The district court conducted a hearing on the motion, and later held in a memorandum opinion that the statements were inadmissible. United States v. Swint, Crim. No. 92-286-02, at 20-21 (M.D. Pa. Apr. 28, 1993) (see App. at 204-05). The United States has appealed from the order entered on April 28, 1993, on this opinion. We have jurisdiction under 18 U.S.C. § 3731.
The district court primarily predicated its opinion that Swint's statements were inadmissible on its Conclusion that the government had secured them from Swint when he was in custody without giving him the Miranda warnings. See Illinois v. Perkins, 496 U.S. 292, 296-98, 110 S. Ct. 2394, 2397, 110 L. Ed. 2d 243 (1990). However, the court also held that "Swint's statements are . . . inadmissible because they were involuntary." United States v. Swint, Crim. No. 92-286-02, at 20-21 n.8 (see App. at 204-05). We will affirm the district court's order on the latter ground, as we hold that Swint's statements to the DEA agents on May 2, 1991, were involuntary. Consequently, we do not decide whether the district court erred in holding that Swint's interrogation was custodial and thus that his statements also were inadmissible due to the government's failure to give him Miranda warnings.
Our review of the district court's holding that Swint's statements were involuntary is plenary, but we accept its findings of fact unless they are clearly erroneous. Arizona v. Fulminante, 499 U.S. 279, 317, 111 S. Ct. 1246, 1252, 113 L. Ed. 2d 302 (1991) (citing Miller v. Fenton, 474 U.S. 104, 110, 106 S. Ct. 445, 449, 88 L. Ed. 2d 405 (1978)). See also Beckwith v. United States, 425 U.S. 341, 348, 96 S. Ct. 1612, 1617, 48 L. Ed. 2d 1 (1976) (appellate court has duty "'to examine the entire record and make an independent determination of the ...