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Promises, Promises: Second Circuit Reverses District Court’s Ruling That Suppressed Post-Arrest Statements Based On Allegedly Coercive Promises By Law Enforcement

In United States v. Haak, 16-3876-cr, the Second Circuit (Raggi, Hall, Carney) reversed a suppression order, finding that local law enforcement authorities did not falsely promise the defendant immunity from prosecution and his statements therefore were not coerced in violation of the Fifth Amendment.

Background

The case arose out of a joint federal-state task force investigation into the death of James Forness from an apparent overdose of heroin laced with fentanyl.  After reviewing text messages on Forness’s cell phone, police in Hamburg, New York identified the defendant, John Haak, as the likely supplier and asked him to come to the station for questioning.  Haak agreed and drove to the station for a 40-minute videotaped interview with two plain-clothes officers.  There was no dispute that he was not in custody.

During the interview, the questioning detective advised Haak of his Miranda rights (even though he was not in custody and therefore not necessarily entitled to such a warning) and made clear that he could leave at any time.  When the officer asked about Forness, Haak said he knew him and they had spoken a week ago, but he was unaware of anything happening to him.  The detective told Haak that he had reviewed Forness’s cell records and it was obvious that Haak had been supplying him with heroine; Haak nodded.  When the detective quoted a text from Haak where he told Forness to be careful with the heroin because it was the “good stuff” and had fentanyl in it, Haak nodded again.  The detective then revealed that Forness had died from an overdose of fentanyl and that Haak was the last person he had texted.  Haak initially denied this, but said “okay” when the officer said phone records proved it.

At this point, about five minutes into the interview, the detective made a number of statements that the district court would later deem coercive, including:

  • “I’m not trying to screw with you.  I’m just trying to set some facts.  Okay?”
  • “You didn’t mean to do anything to him.  You sold him the heroin. . . .  You got a couple of choices you can make right now.”
  • There was a multi-county federal investigation in which “people are gonna get wrapped up in a conspiracy charge for distributing heroin containing fentanyl.  Primarily the people that are the direct people that distributed this, especially if it caused a death, are gonna be the number one targets.. . . .  You don’t need this s–t.” 
  • “I’m not looking to screw you over, not looking even to come after you on this.”
  • “I’m not looking to mess with you, I’m not looking to come after you, but you gotta get on board or you, you shut your mouth and then the weight of the federal government is gonna come down on you.”
  • The detective was looking for Haak’s “cooperation on this so we can backtrack this and hopefully prevent some deaths.”
  • “Either you can get on board, put the team jersey on here, play for this team, or you can be on the losing team.”

Haak agreed on all fronts and identified two of his suppliers.  At the detective’s urging, Haak also agreed to “put on the team jersey” and make a controlled purchase from one of the suppliers, and ultimately did.  The exchange ended with the detective telling Haak that “Obviously, this isn’t going to go away” but Haak “most likely” would not “get pulled into this thing because” he was cooperating.  Haak left the station.  Nine months later, he was indicted by a federal grand jury for fentanyl possession and distribution resulting in death.

In the district court, Haak moved for an order suppressing his statements to the detective, arguing, inter alia, that they were coerced by the threat that “the weight of the federal government would fall on him” if he did not cooperate.  The Magistrate Judge agreed, reasoning that although there was no impropriety in threatening a defendant with prosecution if he did not cooperate, the detective had threatened prosecution “only if he remained silent,” and the reasonable implication of “putting on the team jersey” was that, if Haak did so and cooperated, he would not end up being prosecuted by his own team.  The District Court accepted the Magistrate Judge’s recommendation, finding that while “all other circumstances weighed in favor of voluntariness” and the detective had not made a promise of immunity “in so many words,” the message was “loud, clear, and unmistakable.”  The District Court ruled that the implied promise of immunity overbore Haak’s will, rendering the statements involuntary.

The Decision on Appeal

The Second Circuit reversed.  Writing for the Court, Judge Raggi explained that Haak’s burden was to prove that his will had been overborne in light of the totality of the circumstances, including his personal characteristics, the conditions of the interrogation, and the police conduct.  It was not enough to simply show that the police had made false or misleading statements “intended to trick and cajole” him into confessing.  Moreover, while “material misrepresentations based on unfulfillable or other improper promises might perhaps overbear a defendant’s will,” the Court would not “readily imply an improper promise or misrepresentation from vague or ambiguous statements by law enforcement officers.”  Haak had failed to satisfy his burden under the circumstances because the detective’s statements did not imply a promise of immunity from prosecution, and it was undisputed that the other circumstances of the interrogation were not coercive.[1] 

With respect to police conduct, none of the detective’s statements by themselves “implied” that Haak would “not be charged with any crime if he cooperate[d] with the police.”  For example, the detective’s statements that he was not looking to “screw” Haak, “when viewed in context,” communicated that he was not trying to deceive Haak about Forness’s death or the evidence and were “more reasonably understood as assurance of truthfulness and fair dealing than as promises of immunity.”  Similarly, while the detective’s statements that he was “not looking to come after” Haak “might be construed in some contexts as a promise of immunity,” they were “most reasonably understood” here to convey that he had no present intent to arrest Haak.  Police “generally” “come after” someone by placing them under arrest, the Court reasoned, and the detective had repeatedly said he was not “keeping” Haak at the station. 

The Court specifically rejected the district court’s conclusion that Haak had been presented with two choices:  having the weight of the federal government come down on him or facing no charges in return for cooperation.  There was nothing improper in telling Haak that he would be prosecuted if he did not cooperate, and, in context, the statement did not “clear[ly] and unmistakabl[y]” communicate that Haak would not be prosecuted if he did cooperate.  The Court also rejected the magistrate’s “team player” analogy, reasoning that “[t]he answer” to the question of who would reasonably think they would be prosecuted if they join the team and cooperate “is the countless defendants who cooperate without immunity and with only an expectation that they will be allowed to plead to lesser charges or will be afforded an opportunity for a reduced sentence.”  This conclusion was only bolstered by the detective’s statements at the end of the interview that “this isn’t going away” and that Haak “most likely” would not “get pulled into this thing because” he was cooperating.  The detective had made clear that no further action was a possibility, not a promise.

With respect to the other circumstances of interrogation, Haak was an adult of at least average intelligence who had voluntarily gone to the police station, been advised of his Miranda rights, and was not in custody at any time.  He was not restrained and the officers were in plain clothes and did not display weapons.  Under these conditions, “even if” there had been ambiguity in the police statements, the totality of circumstances weighed “convincingly” in favor of voluntariness.

Analysis

The Court was surely right in concluding that the totality of the circumstances weighed in favor of voluntariness and against suppression.  At the same time, its protracted analysis of the detective’s statements suggests that, like the district court, the Court was uncomfortable with the specific language that the police used.  Indeed, the Court seemed to twist itself into knots to find that problematic statements such as “we won’t come after you” could not reasonably communicate an intent not to prosecute (as opposed to an intent not to arrest for now).  The Court seemed to impute a particular understanding of the criminal justice system to the defendant when it suggested that the defendant should  have understood that these were not promises of immunity because “countless defendants . . . cooperate without immunity and with only an expectation that they will be allowed to plead to lesser charges or will be afforded an opportunity for a reduced sentence.”  While most federal judges and prosecutors might understand that this is ordinarily how the system works, it is not immediately apparent that most drug dealers would know this.  Even reporters for major news organizations believe that a trade of immunity for cooperation is a viable option in federal criminal cases.[2] 

As the Court ultimately explained, the sounder rule is that a promise of immunity must be clear and unmistakable in order for it to be enforceable.  The subtext of the Court’s decision is that the Court does not want to deter police officers and federal agents from encouraging cooperation, given the criminal justice system’s dependence on cooperation in order to prosecute certain types of crimes.  But while the rule set out in Haak is simple to understand and provides clearer guidance for police, the public, and the lower courts, it is questionable whether it leaves any room for an “implied” promise of immunity at all.


[1] The Court observed at the outset that the suppression order was overbroad, even accepting the district court’s findings, because all of Haak’s statements made during the first five minutes of the interrogation were made before the detective had made any potentially coercive statements to him. 

[2] Peter J. Henning, “White Collar Watch:  Manuevering for an Immunity Deal,” N.Y. Times (Mar. 29, 2012), found at https://dealbook.nytimes.com/2012/03/29/maneuvering-for-an-immunity-deal/ (“Prosecutors can grant immunity in exchange for cooperation[.]”).