stated, "I work for Bruce Ebert. His attorney told me not to give a statement." The agents did not question McNaughton again that day without Smida present.
19. Attorney Smida was present from 11:40 a.m. to 11:47 a.m. when Agent Hilborn elicited personal background information from McNaughton. Attorney Smida stopped the interview when Revenue Enforcement Agent John Brennan asked about McNaughton's tax returns.
20. Attorney Smida was also present from 12:05 p.m. to 12:20 p.m. when McNaughton's briefcase was searched. At that time McNaughton discussed with the agents which personal items he would keep from his briefcase.
21. When Agent Hilborn spoke with Attorney Smida, Smida indicated that he was the "company" attorney. He did not tell the agents that he represented Richard McNaughton.
22. At no time on November 24, 1992 did McNaughton ever say to the agents that Attorney Smida represented him personally.
23. McNaughton left the offices of Atlantic in the early afternoon. As McNaughton was leaving the offices of Atlantic, Agent Hilborn shook his hand, reminded him that Agent Perry wanted to interview him and stated, "We'll be in touch".
24. At the conclusion of the search on November 24, 1992, the agents served Atlantic with a Temporary Restraining Order which froze the assets of Atlantic and Bell/Asco. McNaughton was not a party named in this Order.
25. Agent Hilborn told Agent Sid Perry about his contact with McNaughton the evening of November 24, 1994. He also told Agent Perry about Attorney Smida's involvement.
As to statements made December 1, 1992
26. On November 25 or 26, 1992, McNaughton was advised by the attorneys for Atlantic that they could not represent him and that he should obtain personal counsel.
27. On November 30, 1992, FBI Agent Sidney Perry called McNaughton on the telephone and invited him to the FBI office in Philadelphia to review the evidence against him, specifically a videotape and audiotapes. Perry told McNaughton that if he chose to come to the FBI office he would be free to leave and would not be arrested.
28. McNaughton went to the FBI office in Philadelphia on December 1, 1992, and went with Agent Perry to an IRS conference room in the same building. An audiotape and a videotape were played for him. Afterwards McNaughton agreed to be interviewed, and was interviewed by Agent Perry in the IRS conference room for approximately one and one-half hours.
29. McNaughton was not advised of his Miranda rights on December 1, 1992. Agent Perry did not tell McNaughton that the interview on December 1, 1992 would be "off the record". Agent Perry gave McNaughton an explanation of the types of charges that could be brought against him, the accompanying penalties under the Sentencing Guidelines and the possible impact of cooperation on sentencing. Agent Perry did not make any promises to McNaughton, and did not discuss dropping or declining to bring charges against him.
30. McNaughton was not placed under arrest on December 1, 1992. He was not patted down, handcuffed, or otherwise physically restrained and was told that he was free to leave at all times. McNaughton admitted that he understood that he was free to leave at all times.
31. McNaughton did not tell Agent Perry on December 1, 1992 that he was represented by Attorney Smida or any other attorney, nor did he indicate that he wished to speak with an attorney.
32. After the interview ended, McNaughton pulled a sheet of paper from his pocket which contained the names of two attorneys, asked for Agent Perry's opinion of these attorneys and indicated that he might want to retain an attorney.
33. At some point after December 1, 1992, McNaughton retained attorney Robert Welsh to represent him in this matter.
CONCLUSIONS OF LAW
As to both sets of statements
1. The manner in which the agents questioned McNaughton on November 24, 1992 and December 1, 1992 did not violate his rights under Miranda v. Arizona and its progeny
Law enforcement personnel are required to give Miranda warnings only where there has been such a restriction on a person's freedom as to render him "in custody." California v. Beheler, 463 U.S. 1121, 1124, 77 L. Ed. 2d 1275, 103 S. Ct. 3517 (1983). The presence of armed agents, while undoubtably frightening, is not enough to create a custodial situation. Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 97 S. Ct. 711 (1977) (holding that Miranda warnings need not proceed questioning in a "coercive environment" if there is no restraint). When a person has not been arrested, a finding of "custody" requires some indication that the officers would not have heeded that person's request to depart. Patterson v. Cuyler, 729 F.2d 925, 929 (3d Cir. 1984).
I conclude that Mr. McNaughton was not "in custody" on either November 24 or December 1, 1992, and therefore not entitled to Miranda warnings. Mr. McNaughton was not hand cuffed, patted down, placed under arrest, nor told he could not leave on either occasion. He was permitted to receive telephone calls and to leave to speak with Attorney Smida when he asked to do so on November 24.
Mr. McNaughton concedes that he understood that he was free to leave during his interview with Agent Perry on December 1, 1992. He also argues, however, that the government violated his rights under Miranda and Edwards v. Arizona 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981), when Agent Perry re-initiated the questioning of McNaughton after he had invoked his Fifth Amendment right to have counsel present during questioning. Under Edwards, once a suspect invokes his right under Miranda to have a lawyer present during questioning, there can be no further questioning without an attorney unless the suspect initiates it. Edwards, 451 U.S. at 484-85.
The protections of Miranda and Edwards, however, only apply to custodial interrogation. See Arizona v. Roberson, 486 U.S. 675, 685, 100 L. Ed. 2d 704, 108 S. Ct. 2093 (1988) (the Fifth Amendment right to counsel during custodial interrogation is meant to protect an accused against "the inherent pressures of custodial interrogation"); Edwards, 451 U.S. at 482 ("Miranda thus declared that an accused has a Fifth and Fourteenth Amendment right to have counsel present during custodial interrogation."). Because I have held that McNaughton was not subjected to custodial interrogation on either November 24 or December 1, 1992, I also hold that Agent Perry did not violate the Fifth Amendment by contacting McNaughton for further questioning after he had once refused to answer questions without a lawyer present.
2. McNaughton's statements on November 24 and December 1, 1992 were made voluntarily
Where interrogation is noncustodial, to determine the voluntariness of a confession I must consider the effect that the totality of the circumstances had upon the will of the defendant. Schneckloth v. Bustamonte, 412 U.S. 218, 226-27, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). The issue is whether the defendant's will was overborne when he made incriminating statements. Id. at 225-26. The factors to be considered include
the youth of the accused; his lack of education or his low intelligence; the lack of any advice to the accused of his constitutional rights; the length of detention; the repeated and prolonged nature of questioning; and the use of physical punishment such as deprivation of food or sleep.
Id. at 226.
Although a statement by an agent that cooperation will be brought to the attention of prosecuting authorities does not automatically render a confession involuntary, United States v. Fraction, 795 F.2d 12 (3d Cir. 1986), there are times when promises of leniency or confidentiality made by a law enforcement officer can justify a finding that the defendant's will was overborne and any statement made as a result of those promises was involuntary. U.S. v. Walton, 10 F.3d 1024, 1028-29 (3d Cir. 1993). McNaughton argues that suppression of his statements is justified under Walton.
In Walton, the defendant met with two agents in a park. One of the agents, who had been a high school classmate of the defendant, told him that he could speak "off the cuff". The agent testified at trial that he did mean to say that the defendant's statements would not be used against him, and that he did not think differently until a supervisor told him they would use the statements despite his promise. The Third Circuit held that, given the casual setting of the conversation, the prior relationship between the defendant and the agent and the fact that the agent referred to that relationship, and the fact that, at the time of the conversation, the defendant didn't know that he was the subject of an investigation, the defendant was deprived of the ability to make an intelligent choice between exercising and waiving his privilege to remain silent. Walton, at 1030.
The facts here are very different. The agents who interviewed McNaughton did not promise that anything would be "off the record"; they did explain the potential benefits of cooperation in terms of sentencing, but did not make any promises to McNaughton about what charges would be brought against him or what sentence he would receive. Moreover, none of the factors that the Third Circuit found significant in Walton are present here: McNaughton knew that he was a target of the government's investigation and there was no personal relationship or casual situation to lull McNaughton into believing that this was anything but a formal investigatory interview.
Neither do the Schneckloth factors support a finding that McNaughton's statements were involuntary. Mr. McNaughton is a mature adult of professional background, who was not subjected to prolonged detention, verbal harassment, or physical discomfort. I find that his will was not overborne by any statements or conduct of government agents on November 24 or December 1, 1992.
3. McNaughton's statements on November 24 and December 1, 1992 were not made during the course of plea negotiations
The current version of Rule 11(e)(6)(D) of the Federal Rules of Criminal Procedure provides, in pertinent part, that:
Except as otherwise provided in this paragraph, evidence of the following is not . . . admissible against the defendant who made the plea or was a participant in the plea discussions . . .