United States of America, Appellant, v. Pasquale G. Barone, A/k/a Patsy, A/k/a Anthony Capone,defendant, Appellee, 968 F.2d 1378 (1st Cir. 1992)

The government appeals from a district court order suppressing a series of post-arrest statements made by defendant Pasquale Barone. The court found that Barone's right to cut off questioning about a Boston homicide was not "scrupulously honored" by law enforcement officers and that, consequently, they had violated his Fifth Amendment right to remain silent. See Michigan v. Mosley, 423 U.S. 96, 104, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313 (1975). The court also found, however, that Barone made his statements voluntarily. The government argues that, in light of the voluntariness finding, the court should not have suppressed the statements. For reasons we explain below, we uphold the order.

In light of their importance to the claim on appeal, we shall relate the facts of Barone's arrest and subsequent contacts with law enforcement officers in some detail.¹ 

At approximately noon on Friday, July 22, 1988, Barone was arrested in an Ohio supermarket where he worked as a stockboy. Although the Massachusetts warrant for his arrest was issued on a charge of unlawfully carrying firearms, the government primarily sought Barone at that time to solicit his cooperation in the investigation of a 1985 murder in Boston. The government believed that Barone had murdered James Limoli upon orders from Vincent Ferrara, a powerful organized crime figure whom the government had been investigating for some time.² 

Four law enforcement officers participated in Barone's arrest: Ohio FBI Agent Michael Bartley, Lieutenant Ralph Gale of the Lorain County, Ohio, Sheriff's Department and a pair of Boston police detectives, Charles Fleming and William Dickinson, who also were members of the United States Organized Crime Strike Force. On the way to the police station after the arrest, as Fleming began to advise Barone of his Miranda rights, the defendant started to recite them himself, stating, "I have a right to remain silent and I have a right to an attorney." The officers added that anything the defendant said could be used against him, and that if he began talking, he could stop at any time. The district court concluded that this exchange provided Barone with "minimally adequate advice of his Miranda rights," Order at 24, noting that he would have received a more elaborate description of those rights had he not claimed familiarity with them.

The issue of Vincent Ferrara's role in the Limoli murder was first raised in the car. According to the officers, Barone initiated the conversation by telling them, "you don't want me, you want Ferrara." The defendant testified, however, that Fleming introduced the topic, telling him that, "we really don't want you. We want Ferrara." The district court made no explicit finding on this conflicting testimony.

The officers and Barone arrived at the Lorain County Sheriff's Department at about 12:30 p.m. Barone was booked, asked some background questions and then placed in a holding cell. Within thirty minutes of his arrival at the jail, Bartley and Dickinson went to speak with him at the holding cell. Without repeating the Miranda warnings, the officers told the defendant that they knew he was involved in the Limoli homicide and that they wanted to discuss the murder. Barone responded by saying there were no witnesses, no gun had been found, and he queried, "why would I kill my best friend?" The officers pressed the defendant to talk, but he said he did not want to discuss the Limoli matter until he got back to Boston. The officers recognized this as an assertion of the right to remain silent about the murder, and they left.

A short time later, Lt. Gale spoke with Barone. Gale, who knew that Barone had refused to talk to Bartley and Dickinson, urged him to cooperate with the Boston authorities. Gale discussed the Charles Street Jail in Boston, where Barone would be sent, noting that it generally was not a safe place and that Barone would be in particular danger there--an implicit reference to the danger posed by Ferrara.³  Barone told Gale that the case against him would have to be proven in court, that he and Ferrara knew what to expect from each other, and that he would take care of himself.

The district court found that Gale's contact with Barone at this time was designed "to pressure Mr. Barone to abandon the assertion of his right to remain silent and to influence Mr. Barone to cooperate." Order at 27. As a result, the district court found that Gale had failed to "scrupulously honor" Barone's right to remain silent. The court viewed this exchange between the officer and defendant as a reassertion by Barone of his right to remain silent about the Limoli murder.

Less than two hours later, Bartley and Dickinson made a third attempt to solicit Barone's cooperation in the Limoli investigation. Once again, they gave no additional Miranda warnings. And once again, Barone told the officers that he wanted to wait until he got back to Boston to assess the case against him before deciding whether to talk about Limoli. The officers stopped questioning on that subject, but did go on to discuss other matters.

Further contact with Barone did not occur until 7 p.m. the next evening. In the interim, Dickinson spoke with his partner in Boston, Detective Martin Coleman, advising him of Barone's arrest and refusal to discuss the Limoli murder. Dickinson told Coleman that Barone felt no compulsion to cooperate because he believed authorities had no witnesses or evidence against him. Dickinson indicated that he wished to make another effort with Barone, but was concerned about a possible Miranda violation. To discuss this concern, as well as general strategy for obtaining information from Barone, Dickinson contacted Assistant United States Attorney Jeffrey Auerhahn in Boston. Auerhahn advised Dickinson that as long as Barone again acknowledged his Miranda rights, the detective could make another attempt to elicit cooperation.

In an apparent effort to assist Dickinson, authorities in Boston, including Auerhahn and Coleman, had arranged to meet Friday afternoon with Barone's brother-in-law, Walter Jordan. Jordan had agreed to provide significant information about the Limoli homicide. These officials hoped that, when they next questioned Barone, reference to details provided by Jordan would convey the impression that they did have a witness to implicate him. This, the government hoped, would give Barone an incentive to cooperate.

On Saturday evening, when Dickinson and Fleming returned to the jail, they did not ask Barone if he had changed his mind about discussing the Limoli murder. Nor did they give him a fresh set of Miranda warnings. They did mention, however, that he did not have to speak with them, and they also asked the defendant if he remembered his rights. Barone indicated that he did. After making sure that the conversation was not being recorded and that the officers would not take notes, Barone agreed to speak with them.

The discussion began in a friendly, low key manner on topics other than the Limoli homicide.⁴  At some point during the course of the conversation, the detectives told Barone that they knew he was involved in the murder. They asked questions involving details obtained from Jordan. They repeated the assertion that Barone's life would be in danger in Boston. The district court found that this approach--highlighting the strength of the government's case against him and the danger he would face if returned to Boston without government protection--was intended "to induce [Barone] to change his mind about remaining silent concerning Limoli...." Order at 36.⁵ 

The strategy succeeded. Id. Barone began Saturday night to provide information about the Limoli murder.⁶  The district court found that his change of heart occurred because the government had failed to "scrupulously honor" his decision on Friday not to discuss the Limoli murder until he was back in Boston:

I find the defendant was cajoled and subtly threatened by some of the facts concerning the potential case against him and the danger he would be in from Mr. Ferrara if he was returned to Boston.

Order at 37.

The court noted that, under Miranda, this finding of undue pressure on Barone to change his mind "may alone render his statements involuntary." Id. The court nevertheless went on to conclude that, taking into account the totality of the circumstances, Barone's waiver of his right to remain silent had been voluntary. According to the court, the defendant had sufficient age, intelligence and experience to execute a knowing waiver, knew his Miranda rights, and had, in fact, made a calculated decision to cooperate.

Barone discussed the Limoli murder with the detectives in another conversation the next afternoon, and, following his return to Boston on Monday, July 25, gave additional information to FBI Agent Michael Buckley and Detective Coleman. During the course of that interview, Barone called his sister, who informed him that she had hired a lawyer for him. Upon learning that he was represented by counsel, the officers immediately stopped questioning Barone. They indicated, however, that they would return to see the defendant the next day. He refused to see them at that time.

In March 1990, Barone, along with seven co-defendants, was charged in a 65-count superseding indictment with racketeering and numerous other offenses, including the murder of James Limoli. Barone subsequently filed his motion to suppress. As discussed above, the district court granted the motion based on its conclusion that the government did not "scrupulously honor" Barone's assertion of his right to remain silent about the Limoli homicide. Because the officers pressured the defendant to cooperate, the court concluded, Barone's statements must be suppressed under the principles set out in Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975), even though the statements were made voluntarily.

The government argues that, in light of the voluntariness finding, the district court wrongly suppressed Barone's statements. We disagree.

In Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975), the Supreme Court addressed an issue left unresolved by its landmark ruling in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966): once a suspect in custody invokes his right to remain silent, under what circumstances may the police resume questioning for the purpose of obtaining statements admissible against the defendant at trial? In answering this question, the Court rejected the extreme possibilities that, on the one hand, interrogation is forever barred after a suspect chooses to remain silent, and, on the other hand, that interrogation may resume following a "momentary cessation." 423 U.S. at 102, 96 S. Ct. at 326.

"The critical safeguard" identified in Miranda, the Mosley Court held, is a person's " 'right to cut off questioning,' " 423 U.S. at 103, 96 S. Ct. at 326 (quoting Miranda, 384 U.S. at 474, 86 S. Ct. at 1627). By exercising that right, a suspect can "control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation," 423 U.S. at 103-04, 96 S. Ct. at 326-27. The requirement that law enforcement authorities respect the decision to terminate questioning "counteracts the coercive pressures of the custodial setting." Id. at 104, 96 S. Ct. at 326. The Court concluded, therefore, that the admissibility of statements obtained after a person in custody has decided to remain silent depends on whether the government has "scrupulously honored" his right to cut off questioning. Id.

The government argues that Mosley sets up a dual standard, depending upon when police officers resume questioning. In its view, any statement obtained after only a "momentary cessation" in interrogation must be suppressed, whether or not a review of the surrounding circumstances would show that it was made voluntarily. In contrast, the government suggests, the admissibility of statements made after a sustained lapse in questioning--such as occurred in this case between Friday afternoon and Saturday night--turns on whether the totality of the circumstances demonstrates a voluntary waiver of the Fifth Amendment privilege.

We are unable to subscribe to this view of the law. Nowhere in its opinion does the Mosley Court suggest that the threshold test of admissibility varies depending upon the amount of time that has passed since a suspect invoked the right to silence. Nor does the test focus on the voluntariness of the challenged statements. Both Justice White's concurring opinion and Justice Brennan's dissent noted the majority's implicit holding that, under Miranda, some confessions must be ruled inadmissible even if they result from informed and voluntary decisions to waive the previously asserted privilege. See 423 U.S. at 107-08, 96 S. Ct. at 328-29 (White, J., concurring); at 113, 96 S. Ct. at 331 (Brennan, J., dissenting). Indeed, arguing, as it does, that suppression is mandatory for statements made after a brief lapse in questioning, the government apparently concedes that the standard is not framed in terms of voluntariness.

In rejecting a voluntariness test, Justice Stewart, writing for the Court, simply carried forward the principles developed in Miranda. There, the justices recognized that in-custody interrogation imposes "inherently compelling pressures" on persons suspected or accused of crime, 384 U.S. at 467, 86 S. Ct. at 1624, and concluded that prophylactic rules governing police conduct are an effective means of neutralizing this setting, id. Thus, in determining the admissibility of a confession made in response to initial police questioning, Miranda directs courts to look at whether the law enforcement officers have followed specified procedures; if not, the suspect's confession is inadmissible, without inquiry into voluntariness. The presumption, of course, is that most confessions obtained without adherence to those procedures would be involuntary.

Mosley adopts the same approach for statements made later in the interrogation process. Based on the assumption that "repeated rounds of questioning" in the face of a decision to remain silent nearly always will undermine a suspect's will, see 423 U.S. at 102, 96 S. Ct. at 325, a Fifth Amendment violation is presumed unless the law enforcement officials have followed specified procedures. In this setting, the prophylactic requirement is that the police "scrupulously honor" the "right to cut off questioning."

There is one significant distinction between the Miranda and Mosley inquiries, however, and it undoubtedly explains the government's misapprehension of Mosley. Unlike the clearcut, purely objective test in Miranda--did the police officers fully inform the suspect of his rights before he confessed?--the inquiry in Mosley involves a multiple factor review. In evaluating law enforcement conduct pursuant to Mosley, courts must consider, inter alia, the time that elapsed between interrogations, whether fresh warnings were provided, the scope of the second interrogation, and the intensity with which the officers pursued questioning after the suspect asserted the right to silence. 423 U.S. at 104-05, 96 S. Ct. at 326-27.

In determining whether Mosley's right to cut off questioning was fully respected, the Court noted that, after Mosley stated that he wanted no further discussion, Detective Cowie "did not try either to resume the questioning or in any way to persuade Mosley to reconsider his position." Id. at 104, 96 S. Ct. at 327. Although there was subsequent questioning hours later, it "did not undercut Mosley's previous decision not to answer," for the subsequent questioner "focused exclusively on ... a crime different in nature and in time and place of occurrence from the robberies for which Mosley had been ... interrogated by Detective Cowie." Id. at 105, 96 S. Ct. at 327.

The government mistakenly equates this "totality of the circumstances" scrutiny with the traditional voluntariness test, which involves a similar process but a very different analysis. The traditional examination into whether a defendant voluntarily, knowingly and intelligently waived his or her Fifth Amendment rights occurs when a suspect, after receiving the Miranda warnings, makes a confession. The scrutiny in such instances is broad, encompassing not only the nature of the police conduct but also such factors as the suspect's age, education and past criminal experience, and whether the suspect had the capacity to understand both the warnings given him and the consequences of waiving his rights. See, e.g., Fare v. Michael C., 442 U.S. 707, 724-27, 99 S. Ct. 2560, 2571-73, 61 L. Ed. 2d 197 (1979); United States v. Melanson, 691 F.2d 579, 588 (1st Cir. 1981).

While the suspect's state of mind is central to the voluntariness finding, the Mosley test focuses on what the police did, and when, after the suspect exercised his or her right to remain silent. Indeed, the Miranda- Mosley rules are designed to give law enforcement agencies and courts "clear, objective standards that might be applied to avoid the vagaries of the traditional voluntariness test," Mosley, 423 U.S. at 113, 96 S. Ct. at 331 (Brennan, J., dissenting). Thus, under Miranda and Mosley, a court need determine specifically whether there has been a voluntary waiver only after the government has carried its burden of showing that it complied with the required procedures. See Miranda, 384 U.S. at 475-76, 479, 86 S. Ct. at 1628-29, 1630. See also, e.g., Kelly v. Lynaugh, 862 F.2d 1126, 1131 (5th Cir. 1988).

The district court properly applied the Mosley standard. It carefully reviewed the police conduct following Barone's decision to remain silent about Limoli, finding that the officers repeatedly spoke to Barone for the purpose of changing his mind, failed to provide new Miranda warnings, applied pressure by emphasizing the danger he would face in Boston if he did not cooperate, and took advantage of a long delay in arraignment. See infra at 15-18. These circumstances led the court to conclude that the officers failed to respect his right to cut off questioning about Limoli. Under Mosley, this should have ended the court's inquiry. Its additional finding that the statements were voluntary did not, as the government urges, trump or undermine the prior conclusion; the voluntariness finding was unnecessary and, indeed, irrelevant. The district court impliedly recognized this by its order of suppression. We therefore reject the government's claim that the court misconstrued the law in suppressing Barone's statements.⁷ 

Having disposed of the government's legal challenge to the suppression order,⁸  we turn briefly to its contention that the district court erred factually in finding a Mosley violation.

The district court comprehensively catalogued the various factors contributing to its decision, carefully comparing the circumstances here with those in other cases. See Order at 44-48. We find its analysis and conclusion unimpeachable.

Barone was approached by law enforcement officers four times before he began to discuss the Limoli homicide, including two contacts in which officers brought up the fact that he would be in substantial danger if he returned to Boston without cooperating. See Vujosevic v. Rafferty, 844 F.2d 1023, 1029 (3d Cir. 1988) (suppression required where defendant questioned on four occasions about same crime, giving written statement only after officers "essentially bluffed him into agreeing"). On none of these occasions was he given full Miranda warnings. See United States v. Hsu, 852 F.2d 407, 410 (9th Cir. 1988) (special concern expressed for "the provision of a fresh set of warnings"). The officers did not resume contact on any of these occasions by asking Barone if he had changed his mind about remaining silent concerning the Limoli homicide. Indeed, the district court found that on Saturday night, when Barone began to cooperate, Fleming and Dickinson used tactics intended to lower the defendant's guard against incriminating himself. See Order at 34. The reference to danger in Boston occurred well into that conversation, apparently when the officers sought to renew pressure on Barone to discuss the Limoli incident.⁹ 

Although more than twenty-four hours passed between the last contact on Friday and the officers' arrival at the jail on Saturday--a factor in the government's favor--this lapse of time was offset by two other circumstances. First, during the intervening period, the government worked to develop information that later was used to pressure Barone into cooperating. Cf. Hsu, 852 F.2d at 412 ("The record demonstrated that [the agent] exerted no pressure upon [the defendant] whatsoever. He merely read [defendant] his rights a second time, and [defendant] responded with a valid waiver.").¹⁰  And, second, while the court did not find that the officers deliberately delayed Barone's arraignment from Friday afternoon to Monday morning, Order at 28, it did find that "the prolonged detention magnified the inherent coercion of being held in custody," id. at 46.¹¹ 

In sum, the focus on danger, the failure to repeat warnings, the increasing length of incarceration, the officers' efforts to ingratiate themselves, and the number of encounters deliberately aimed at eliciting cooperation on the same crime are sufficient to support a finding that this was a case "where the police failed to honor a decision of a person in custody to cut off questioning, ... by persisting in repeated efforts to wear down his resistance and make him change his mind," Mosley, 423 U.S. at 105-06, 96 S. Ct. at 327-28.

We therefore affirm the district court's order suppressing the statements made by Barone about the Limoli murder on Saturday, July 23, 1988 through Monday, July 25, 1988.

The suppression order did not directly address the admissibility of a statement the police officers claim that Barone made spontaneously in the car, telling the officers that they wanted Ferrara, not him. See Section I, supra, at pp. 3-4. As noted above, the testimony at the hearing about this comment was conflicting, with Barone contending that it was the officers who brought up Ferrara's name.

We agree with the government that a remand is necessary to allow the district court to make explicit findings on this point. If the court finds that Barone volunteered a statement about Ferrara before invoking his right to silence, the statement would, of course, be admissible. See Miranda, 384 U.S. at 478, 86 S. Ct. at 1629-30.

Affirmed in part and remanded in part.

SELYA, Circuit Judge (dissenting).

By stony adherence to a narrow reading of Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975), this court today approves suppression of highly reliable statements, voluntarily made to law enforcement officers by a criminal defendant. I do not believe that Mosley requires such a result, particularly when read in the context of the Supreme Court's more recent jurisprudence. Thus, I respectfully dissent from Part II of the court's opinion.¹² 

Prior to 1966, the litmus test for admissibility of incriminating statements devolved around whether the statements were made "voluntarily," giving that term the texture and gloss required by the Due Process Clause. The world changed in the blink of an eye. In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the Court held that, because custodial interrogation was inherently coercive, incriminating statements made in the absence of certain clear warnings would be presumed to be involuntary. Id. at 467, 86 S. Ct. at 1624.

In Mosley, the Court went a step further, holding that, after assertion of the right to silence, statements made in response to custodial interrogation will be admissible only if the authorities have "scrupulously honored" the accused's right to terminate questioning. Mosley, 423 U.S. at 103, 96 S. Ct. at 326. In Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), the Court clarified a distinction between asserting the right to remain silent and asserting the right to counsel. The Court established a bright-line rule: when an accused, in a custodial setting, invokes the right to counsel, the police must immediately cease all interrogation and may not resume questioning without the presence of counsel. See id. at 484-85, 101 S. Ct. at 1884-85.

Bright-line rule or not, Edwards has sometimes been treated grudgingly by the Court. See, e.g., Connecticut v. Barrett, 479 U.S. 523, 529-30, 107 S. Ct. 828, 832-33, 93 L. Ed. 2d 920 (1987) (holding that admission of oral statements voluntarily made by accused after he had stated that he would not make a written statement without advice of counsel did not violate Edwards) . More to the present point, in the eleven years which have passed since Edwards was decided, the Court has refused to interpret Mosley as establishing a comparable bright-line rule regarding the right to silence. See Minnick v. Mississippi, --- U.S. ----, ----, 111 S. Ct. 486, 497, 112 L. Ed. 2d 489 (1990) (Scalia, J., dissenting) (noting that a "suspect in custody who says categorically 'I do not wish to discuss this matter' can be asked to change his mind"). Indeed, in the seventeen years since Mosley was announced, the Court's opinions have begun more and more to emphasize voluntariness when assessing Miranda violations. See, e.g., Colorado v. Spring, 479 U.S. 564, 577, 107 S. Ct. 851, 859, 93 L. Ed. 2d 954 (1987); Oregon v. Elstad, 470 U.S. 298, 309, 105 S. Ct. 1285, 1293, 84 L. Ed. 2d 222 (1985) ("Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.").

This backdrop is colored by the fact that the Court has lost few opportunities to remind us that the root purpose of Miranda (and of the procedural rules emanating from it) is neither to discourage voluntary confessions nor to preclude their use. See, e.g., McNeil v. Wisconsin, --- U.S. ----, ----, 111 S. Ct. 2204, 2210, 115 L. Ed. 2d 158 (1991) ("the ready ability to obtain uncoerced confessions is not an evil but an unmitigated good"); Moran v. Burbine, 475 U.S. 412, 426, 106 S. Ct. 1135, 1143, 89 L. Ed. 2d 410 (1986) ("Admissions of guilt are more than merely 'desirable'; they are essential to society's compelling interest in finding, convicting, and punishing those who violate the law.") (citation omitted). Ineluctably these principles inform the case at hand.

Here, Barone asserted his right to remain silent regarding the Limoli murder during three attempted interrogation sessions. On each occasion, questioning anent the murder stopped and was not resumed for several hours. Ultimately, he volunteered the inculpatory statements. The district court specifically found that those statements resulted not from police coercion, but from a knowing and voluntary waiver of the defendant's right to remain silent.¹³  This determination of voluntariness must carry the day. In light of it, and because the district court found that the officers reminded Barone that he was not obligated to speak to them and confirmed that he had his rights in mind, I do not believe that Mosley requires the suppression of the statements at issue.

I do not plan to wax longiloquent. In due course, the Court will take Mosley's measure. For now, I am content to say that, in my view, the district court's findings are tantamount to a finding that the shortfall in the authorities' conduct did not impermissibly impinge upon either Barone's free exercise of his will or his right to cut off questioning at the crucial moment. Thus, suppression of the incriminating statements was improper. Cf., e.g., Arizona v. Fulminante, --- U.S. ----, ----, 111 S. Ct. 1246, 1265, 113 L. Ed. 2d 302 (1991) (admission of confessions obtained in violation of Miranda principles is subject to harmless-error review); Elstad, 470 U.S. at 309, 105 S. Ct. at 1293 ("If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself.").

While I understand the majority's desire to resolve Mosley's ambiguity to the defendant's benefit, I prefer to resolve that ambiguity in line with the Constitution as I read it, the interests of an ordered society, and the Court's most recent expressions. Hence, I would reverse the suppression order.