Unpublished Disposition, 927 F.2d 611 (9th Cir. 1989)

MEMORANDUM^* 

Anthony Eugene Ennett appeals from the district court's denial of his motion to suppress his confession to one count of armed bank robbery in violation of 18 U.S.C. § 2114. The district court denied the motion after determining that Ennett's confession was voluntary. Ennett subsequently entered a conditional guilty plea. We affirm.

DISCUSSION

Ennett contends his confession was involuntary because it resulted from an improper inducement by Postal Inspector Janene Gordon. Ennett avers that Inspector Gordon, in response to his query whether he would go to jail if he confessed, stated that he would not have to go to jail so long as he promised to be in court the following Monday morning. Moreover, Ennett asserts that even if Inspector Gordon did not use these precise words, he interpreted what was said to mean either that he would not have to go to jail or that he would be put on probation. In addition, Ennett alleges the entire colloquy occurred after Inspector Gordon had said that " [t]his is off the record." Ennett claims that Inspector Gordon's implied promise, taken in the context of the entire question-and-answer session with Inspector Gordon, including an instance in which Inspector Gordon stated " [w]e're not in the business of putting people in jail," overbore his will so as to make his confession involuntary; he maintains he would never have confessed had these inducements not been made.

We review a district court's factual findings regarding the circumstances of a confession under the clearly erroneous standard, United States v. Layton, 855 F.2d 1388, 1409 (9th Cir. 1988), giving due regard to the district court's credibility determinations, Amadeo v. Zant, 108 S. Ct. 1771, 1777 (1988). We review de novo the district court's ultimate conclusion as to whether the statement is voluntary. Layton, 855 F.2d at 1409.

The district court determined that " [t]here's just absolutely no credible evidence that would indicate in the slightest degree that this defendant was under any illusion or even knowledge of any promises or threats or any duress or reward as to the confession...." As such, the district court did not find Ennett's account of his colloquy with Inspector Gordon, and his interpretation of that colloquy, to be credible.¹  We do not find this credibility determination to be clearly erroneous.

First, Ennett's allegation that Inspector Gordon stated he would not have to go to jail if he was in court the following Monday morning is not entirely believable. Ennett is well-educated, has had experience in the criminal justice system, and was apprised of his Miranda rights before the interview with Inspector Gordon commenced. The district court could properly have found that Ennett's account of this colloquy was not credible.

Moreover, Ennett's delay in asserting his claim that his confession was not voluntary also calls his credibility into question. Ennett confessed on February 24, 1989. At this time, Ennett was on parole for an attempted rape conviction. State parole officers subsequently offered Ennett twelve months in state custody if he waived his right to a parole revocation hearing, and supplied him with a copy of the parole violation report detailing his confession to the postal authorities. Ennett signed the waiver of revocation on March 14, 1989. At no time during this process did Ennett raise the issue of the voluntariness of his confession. Ennett first raised the issue on April 7, 1989, in his motion to suppress before the district court. The district court could properly have found Ennett's credibility to be compromised by his delay in raising the claim of involuntariness.

Finally, it was not unreasonable for the district court to disregard Ennett's claim that Inspector Gordon stated that their colloquy would be "off the record." Ennett testified at his suppression hearing that he was willing to lie and did lie to Inspector Gordon in order to avoid going to jail. In light of this admission, the district court could properly have chosen to believe Inspector Gordon and determined that the alleged statement had not been made. In sum, the district court's adverse credibility determination was not clearly erroneous.

Therefore, absent his testimony, Ennett's contention that his confession was not voluntary could only succeed if the district court found that Inspector Gordon's statements, as she recalled them, were a sufficient inducement on its face to override Ennett's will. We conclude that this response cannot, as a matter of law, be enough to justify suppression of Ennett's confession. Inspector Gordon, according to her affidavit, truthfully responded to Ennett's query by stating that Ennett probably would not have to go to the state penitentiary that night. This statement is not so sufficiently compelling so as to have overborne Ennett's will in light of all attendant circumstances. See United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988).

AFFIRMED.