United States v. Jacobs

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

12-14-2005

USA v. Jacobs

Precedential or Non-Precedential: Precedential

Docket No. 04-2214

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-2214

UNITED STATES OF AMERICA

Appellant

v.

JOSETTE JACOBS

On Appeal from the United States District Court

for the District of Delaware

(D.C. Criminal Action No. 01-cr-00031)

District Judge: Honorable Joseph J. Farnan, Jr.

Argued February 15, 2005

Before: SLOVITER, AMBRO and

ALDISERT, Circuit Judges

(Filed: December 14, 2005 )

Colm F. Connolly

United States Attorney

Keith M. Rosen (Argued)

Assistant United States Attorney

United States Attorney’s Office

Nemours Building

1007 Orange Street, Suite 700

P.O. Box 2046

Wilmington, DE 19899

Counsel for Appellant

Christopher D. Warren, Esquire (Argued)

1604 Locust Street

Philadelphia , PA 19103

Counsel for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge

Josette Jacobs was indicted on May 8, 2001, and charged

with conspiring to possess with the intent to distribute more

than five kilograms of cocaine in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A), and 846. Jacobs moved to suppress

statements she made on March 14, 2000 (“the March

statements”) and on April 4, 2000 (“the April statements”).

After a hearing, the District Court granted the motions. The

2

Government now appeals.1 We affirm in part and reverse in

part, as we hold that Jacobs’ April statements were involuntary

and taken in violation of Miranda v. Arizona, 384 U.S. 436

(1966), but her March statements were voluntary.

I. Factual Background

The District Court found the following facts in its

opinion reported at United States v. Jacobs, 312 F. Supp. 2d

619 (D. Del. 2004).

A. Jacobs’ history as an informant.

Jacobs was a confidential informant for the Wilmington

Police Department and the Federal Bureau of Investigation

(“FBI”) for ten years prior to March 2000. Her primary law

enforcement contact, or “case handler,” was Wilmington police

detective Liam Sullivan, a Special Federal Officer (“SFO”) on

an FBI task force. To persuade Jacobs to become an FBI

informant, Sullivan told her that he had become affiliated with

the FBI and that it would pay more than the Wilmington police

for information. Jacobs provided information to the FBI about

fugitives, top-level Wilmington drug dealers, and current

community criminal trends. Sullivan characterized Jacobs as a

“good” informant and an “outstanding source of information.”

If Sullivan and Jacobs were working on a specific case they

1

We have jurisdiction under 18 U.S.C. § 3731.

3

would meet daily, but otherwise their meetings were more

sporadic.

The FBI sometimes paid Jacobs for information. From

August 1997 to January 2000 she was paid five times for a total

of $3,450. Sullivan also assisted Jacobs when she was charged

with criminal offenses. Sullivan stated: “The exact amount of

times that I spoke with prosecutors and/or probation officers,

there were several times. I know that I advised prosecutors

and/or probation officers that . . . she was cooperating and

providing very valuable information and should be considered

for some, I guess, assistance.”

Jacobs was regularly admonished not to engage in any

unlawful acts except as specifically authorized.2 Between 1997

and 1999 the FBI sometimes authorized Jacobs to engage in

criminal activity in order to provide intelligence for the FBI.

For example, in 1999 Jacobs was authorized to travel to New

York to bring back cocaine to targeted individuals in

Philadelphia.

B. The March statements.

2

The Government points out that the admonishments

warned Jacobs that she was subject to prosecution for any

unauthorized unlawful acts. Jacobs, in turn, points out that the

admonishments state that “[t]he source must abide by the

instructions of the FBI.”

4

On March 14, 2000, Jacobs called Sullivan and asked to

see him right away about an “important” matter. She requested

they meet at her hotel room and Sullivan agreed. Sullivan and

FBI Special Agent Scott Duffey went to the hotel, knocked on

Jacobs’ door, and Jacobs invited them in.3 Jacobs told them she

had information about “the biggest” drug dealer in Wilmington.

She said that Bruce Stewart was regularly importing cocaine

from Los Angeles to Wilmington using couriers. She went on

to describe the scope, members, and method of operation of

Stewart’s drug organization. She also described the particular

suitcases used by the organization to carry the cash and cocaine.

Sullivan began to suspect that Jacobs was involved in these

drug offenses because she possessed “entirely too much

information.” Sullivan asked Jacobs if she had ever taken a trip

to Los Angeles for Stewart, and Jacobs replied she had not.

Sullivan then told Jacobs, “Listen[,] if you did, just tell me . . .

because if it comes out later, I can’t cover you.” Jacobs again

denied that she had traveled to Los Angeles on these drug buys,

and Sullivan and Duffey then left the hotel room.4

3

The District Court expressly found that Jacobs invited

Sullivan to her hotel room on March 14. 312 F. Supp. 2d at

624. However, the Court later stated that Jacobs was

“summoned to the Wilmington FBI Office” on March 14. Id. at

631. The former statement was correct.

4

The District Court stated that Jacobs “had been

specifically authorized to engage in the [Stewart] drug

conspiracy . . . .” Id. at 631. However, we can find no evidence

5

C. The April statements.

After the March 14, 2000 meeting, the FBI began an

investigation into the Stewart organization. During that

investigation, a different source admitted that she had taken

seven trips for Stewart, and that Jacobs had, in fact, taken three

trips for him. On April 3, 2000, Stewart and two other female

couriers were arrested at the Philadelphia Airport.

Coincidentally, on the same day, the FBI “closed” Jacobs as an

informant without informing her.

The next day (April 4), Sullivan called Jacobs and told

her he needed to see her right away.5 Jacobs, along with her

five-year-old son, then went to the Wilmington FBI office and

entered through the private task force door. Sullivan then had

Jacobs and her son wait for approximately thirty minutes in a

room where suspects are interviewed, processed, and detained.

During this time Sullivan placed two suitcases that had been

recovered during Stewart’s arrest on the floor of the “squad bay

area” (an open office area in the vicinity of Sullivan’s desk).

of this in the record before us.

5

Jacobs points out that Sullivan actually testified that he

said that he “need[ed] to see [her] at the office right away.”

(Emphasis added.) Further, when she tried to find out why he

wanted to see her, Sullivan did not answer the question and

instead said, “I will talk to you about it when you get here.”

6

Sullivan next asked Jacobs to leave her son in the

interview room and brought her out to the squad bay area,

where he told her about the arrests at the airport. Jacobs then

saw the suitcases and said, “That’s the cases. See, I told you.”

Sullivan then told Jacobs that he had information that she was

involved in the conspiracy to transport drugs from Los Angeles

to Delaware. She responded that she had only carried money.

When Sullivan said that that was not his understanding, Jacobs

asked, “[W]ell, how else could I get any information on Bruce

[Stewart] for you if I didn’t go?” She went on to say that she

had two suitcases she had used during the trips at her residence,

and that a drug dog sniff of the suitcases would probably

indicate traces of cocaine. Sullivan asked her how many trips

to Los Angeles she had taken, and she replied there had been

two. Sullivan then confronted Jacobs with other aspects of her

prior statements in March that differed from what she had just

told him. He next told her to go home and think about what she

wanted to do regarding further cooperation with law

enforcement. Further, he told her that the FBI wanted the

suitcases she had at her residence.6 It is not disputed that at no

time did Sullivan (or anyone else) inform Jacobs that the FBI

6

On April 5, 2000, Duffey went to Jacobs’ home and she

gave him the suitcases. Also, the FBI was searching at that time

for a Robert Shepard. Jacobs told Duffey that she knew the safe

house where Shepard was hiding, and she took Duffey there.

Jacobs still believed she was a confidential informant during this

time.

7

had closed her as an authorized confidential informant, nor was

she given any Miranda warnings.

II. Standard of Review

Whether a person was “in custody” for the purposes of

Miranda, and whether a statement was “voluntary” for the

purposes of a motion to suppress, are conclusions reviewed de

novo. Thompson v. Keohane, 516 U.S. 99, 112-13 (1995);

United States v. Walton, 10 F.3d 1024, 1027 (3d Cir. 1993).

However, the factual findings underlying the District Court’s

decision are reviewed for clear error. Walton, 10 F.3d at 1027.

III. Discussion

We must determine whether Jacobs was in custody when

she made her statements and whether her statements were

involuntary. In section “A” we examine custody. Next, to

analyze involuntariness properly, it will be useful to examine in

section “B1” a preliminary issue: whether Sullivan made an

implied promise that Jacobs’ statements regarding the Stewart

drug conspiracy would not be used against her. We will then be

ready to address in sections “B2” and “B3” whether Jacobs’

March statements and April statements, respectively, were

involuntary.

A. Was Jacobs in custody during her statements?

8

Jacobs claims only that she was in custody during her

April statements. Thus we address only that custody issue.

As noted, it is undisputed that Sullivan did not advise

Jacobs of her Miranda rights before her April statements. If

Miranda warnings are not given before a person “in custody”

is questioned, evidence resulting from the questioning must be

suppressed.7 Miranda, 384 U.S. at 444-45. An individual is in

custody when he or she has been “deprived of his [or her]

freedom of action in any significant way.” Id. at 444; see also

United States v. Leese, 176 F.3d 740, 743 (3d Cir. 1999). In

Yarborough v. Alvarado, 541 U.S. 652 (2004), the Supreme

Court gave the following description of the Miranda custody

test:

Two discrete inquiries are essential to the

determination: first, what were the circumstances

surrounding the interrogation; and second, given

those circumstances, would a reasonable person

have felt that he or she was not at liberty to

terminate the interrogation and leave. Once the

scene is set and the players’ lines and actions are

7

However, “[s]tatements made by a defendant in

circumstances violating . . . [Miranda] are admissible for

impeachment if their trustworthiness . . . satisfies legal

standards.” Mincey v. Arizona, 437 U.S. 385, 397-98 (1978)

(second omission in original) (internal quotation marks omitted).

9

reconstructed, the court must apply an objective

test to resolve the ultimate inquiry: was there a .

. . restraint on freedom of movement of the degree

associated with a formal arrest.

Id. at 663 (quoting Keohane, 516 U.S. at 112) (emphases

added) (quotation marks omitted). In this context, there are at

least three differently worded tests for when a person is in

custody: (1) when the person has been deprived of her or his

freedom in some significant way; (2) when a reasonable person

would perceive that she or he was not at liberty to terminate the

interrogation and leave; and (3) when there is a restraint on the

person’s freedom of movement of the degree associated with a

formal arrest. More clear is that the determination of custody is

an objective inquiry (that is, what a reasonable person would

believe) based on the circumstances of the interrogation. Leese,

176 F.3d at 743.

The District Court correctly noted three factors that are

among those that should be weighed to determine if an

individual was in custody. Jacobs, 312 F. Supp. 2d at 627-28.

One is the location of the questioning. We have stated that “all

‘station house’ interrogations should be scrutinized with

extreme care for any taint of psychological compulsion or

intimidation because such pressure is most apt to exist while a

defendant is interviewed at a police station.” Steigler v.

Anderson, 496 F.2d 793, 799 (3d Cir. 1974). A second factor

is the information known by the officer concerning the

10

suspect’s culpability. “‘The more cause for believing the

suspect committed the crime, the greater tendency to bear down

in interrogation and create the kind of atmosphere of significant

restraint that triggers Miranda, and vice versa.’” Id. at 799

(quoting United States v. Hall, 421 F.2d 540, 545 (2d Cir.

1969)). And a third factor is whether the officer revealed his or

her belief that the suspect was guilty. Stansbury v. California,

511 U.S. 318, 325 (1994) (“An officer’s knowledge or beliefs

may bear upon the custody issue if they are conveyed, by word

or deed, to the individual being questioned.”).

The District Court applied these factors to the facts of the

case and concluded that Jacobs was in custody during the April

4 interview because: (1) the questioning took place at the FBI

Offices; (2) Sullivan believed Jacobs was guilty; (3) Jacobs was

summoned to FBI offices without explanation; (4) Sullivan’s

questions were confrontational and intimidating; (5) he used

interrogation tactics, including placing the incriminating

suitcases in Jacobs’ view8 ; (6) Sullivan communicated to Jacobs

8

Sullivan acknowledged that displaying evidence to a

suspect is an interrogation technique and that he placed the

suitcases that were seized during Stewart’s arrest near his desk

because he “wanted [Jacobs] to see the suitcases in the hopes

that she would come around and tell us everything that she

knew.” The use of interrogation techniques in a police-station

setting was one of the very reasons why the Supreme Court held

in Miranda that a suspect must be advised of his or her

11

that he thought she was guilty; and (7) Jacobs felt obligated to

come to and stay at the questioning because she was reasonably

under the impression that she was still an FBI informant.

Jacobs, 312 F. Supp. 2d at 628. On appeal, Jacobs suggests

two additional reasons: (8) she was not specifically told she was

not under arrest before questioning began, citing Oregon v.

Mathiason, 429 U.S. 492, 495 (1977) (a factor indicating the

defendant was not in custody was that he was specifically told

he was not under arrest); California v. Beheler, 463 U.S. 1121,

1122 (1983) (same); and (9) she did not agree to meet with

Sullivan with knowledge of the fact that questioning about a

criminal offense would take place, see United States v. Kim,

292 F.3d 969, 974 (9th Cir. 2002) (“In determining whether

suspects were ‘in custody’ for Miranda purposes, the Supreme

Court has considered whether they voluntarily approached or

accompanied law officers understanding that questioning would

ensue.” (emphasis in original)).

According to the Government, Mathiason suggests that

Jacobs was not in custody on April 4. In that case, a police

officer investigating a burglary left a note with the defendant

asking him to call because the officer wanted “‘to discuss

something with [him].’” 429 U.S. at 493. The defendant called

and a meeting was set up at the state parole office. Id. At the

meeting, after advising the defendant that he was not under

constitutional rights before questioning begins. 384 U.S. at 448-

55.

12

arrest, the officer told him that the police believed he had

committed the burglary and (falsely) that his fingerprints were

found at the scene. Id. A few minutes later, the defendant

confessed to the crime and was sent home shortly thereafter. Id.

at 493-94. The Supreme Court held that Mathiason had not

been in custody, stating that there was “no indication that the

questioning took place in a context where [Mathiason’s]

freedom to depart was restricted in any way.” Id. at 495. It did

so because Mathiason (1) had come to the station voluntarily,

(2) was informed that he was not under arrest, and (3) left the

interview without hindrance. Id. at 495.9

To suggest that Mathiason implies that Jacobs was not

in custody reaches too far. The first factor found relevant by the

Supreme Court was that Mathiason had come to the station

voluntarily. In Jacobs’ case, by contrast, Sullivan called Jacobs

and told her that he “need[ed] to see [her] at the office right

away.” When Jacobs tried to find out why Sullivan wanted to

see her, he did not answer the question and instead stated, “I

will talk to you about it when you get here.” Furthermore,

Jacobs was led to believe she was still an informant and thus

likely felt an obligation to follow the directions of her handler,

particularly because Sullivan had paid her and used his position

to influence the criminal justice system to help her previously.

9

That the officer had falsely told Mathiason that his

fingerprints were found at the scene was held irrelevant to the

custody analysis. Mathiason, 429 U.S. at 495-96.

13

Finally, the FBI informant admonition forms stated that “the

source must abide by the instructions of the FBI” (emphasis

added). Thus, while Jacobs was not physically forced to go to

the FBI offices on April 4, her decision to go cannot fairly be

said to have been “voluntary” in the sense that it was for

Mathiason.

In addition, Mathiason was told he was not under arrest.

As Jacobs was not told anything regarding her arrest status, pro

or con, this factor falls somewhat in her favor.

Another factor was that Mathiason left the interview

without hindrance. Jacobs also left the interview without

hindrance. However, the test for custody is not whether the

police in fact let a suspect leave at the end of the questioning

without hindrance. Rather, it is whether, under the

circumstances, a reasonable person would have believed that

during the questioning he or she could leave without hindrance.

Thus, if this factor is useful at all, it is only an indicator of what

the circumstances during the questioning would have made a

reasonable person believe. Furthermore, just because an officer

lets a suspect leave after he or she has gotten all the desired

incriminating evidence does not mean the officer would have let

the suspect leave (or, to be more precise, it does not mean the

officer made the suspect believe she or he could leave) during

the questioning.

Thus, the first two Mathiason factors cut against the

14

Government (acknowledging that the second factor favors

Jacobs tepidly). The third factor (the weakest) is only

marginally helpful to its case.

The Government also argues that Beheler suggests that

Jacobs was not in custody on April 4. In Beheler, police were

investigating a homicide arising out of an attempted robbery by

Beheler and his co-conspirator, Wilbanks. 463 U.S. at 1122.

After the homicide, Beheler called the police, who came to the

crime scene. Id. He told the police that Wilbanks had killed the

victim. Id. Later, although the police specifically told Beheler

he was not under arrest, he voluntarily agreed to accompany

police to the station house. Id. There, Beheler agreed to talk

about the murder. Id. After less than thirty minutes, he was

allowed to return home. Id.

The Beheler Court held that Mathiason controlled, as it

“involved a factual context remarkably similar to the present

case . . . .” Id. at 1123. However, as previously explained, the

first two Mathiason factors cut against the Government, and

only the weakest of the three factors, the third, is somewhat

helpful to it. The Supreme Court also noted that “Miranda

warnings are not required simply because the questioning takes

place in the station house, or because the questioned person is

one whom the police suspect.” Id. at 1125 (quotation omitted).

That either of these two factors alone does not per se indicate

custody hardly means that both of these factors in concert with

seven other factors do not indicate custody. To recap, in

15

Jacobs’ case, in addition to (1) the questioning taking place at

the FBI offices, and (2) Sullivan believing Jacobs was guilty,

the following additional factors were present: (3) Jacobs was

summoned to FBI offices without explanation; (4) Sullivan’s

questions were confrontational and intimidating; (5) he used

interrogation tactics, including placing the incriminating

suitcases in Jacobs’ view; (6) he communicated to Jacobs that

he thought she was guilty; (7) Jacobs felt obligated to come to

and stay at the questioning because she was reasonably under

the impression that she was still an FBI informant; (8) she was

not specifically told she was not under arrest before questioning

began; and (9) she did not agree to meet with Sullivan with

knowledge of the fact that questioning about a criminal offense

would take place. None of these factors was present in Beheler.

Thus it hardly requires us to conclude that Jacobs was not in

custody on April 4.10

10

The Government also cites Minnesota v. Murphy, 465

U.S. 420, 430-31 (1984), for the proposition that a suspect is not

necessarily in custody when compelled to appear at a meeting

with a probation officer. First, this proposition surely cannot be

generalized to mean being compelled to be somewhere can

never indicate custody. In fact, the very definition of being “in

custody” is essentially being “compelled to be somewhere” (two

of the three tests for when a person is in custody are (1) when

the person has been deprived of his or her freedom in some

significant way, and (2) when a reasonable person would

perceive that she or he was not at liberty to terminate the

interrogation and leave). Presumably Murphy should be limited

16

In sum, nine factors indicate that Jacobs was in custody

during her April statements. The two cases on which the

Government primarily relies—Mathiason and Beheler—do not

support its position nearly as strongly as it argues, and in any

event do not overcome our conclusion of custody. Thus we

affirm the District Court on this issue.

to the probation context, in which the “baseline” is that the

probationer will be required to attend meetings. Cf. id. at 432

(“[T]he nature of probation is such that probationers should

expect to be questioned on a wide range of topics relating to

their past criminality.”). Further, unlike Jacobs’ April 4

interview, a “probation interview [is] arranged by appointment

at a mutually convenient time.” Id. at 433. Finally, the two

cases that the Government relies on most, Mathiason and

Behler, rest largely on the fact that the suspect came to the

station voluntarily (that is, he was not compelled). This implies

that if a suspect is compelled to go to the station, it would be a

factor in favor of custody.

The Government further argues that Murphy suggests that

when a suspect is familiar with an interviewer and the interview

situation, concluding there was custody is inappropriate. See id.

(“Murphy’s regular meetings with his probation officer should

have served to familiarize him with her and her office . . . .”).

But while Jacobs and Sullivan had a ten-year relationship, it was

a cooperative one. While Jacobs was familiar with having

conversations with Sullivan, nothing in the record shows she

was familiar with Sullivan accusing her of federal offenses,

asking her confrontational and intimidating questions, and using

interrogation tactics on her.

17

B. Were Jacobs’ March and April statements

involuntary?

Statements made to a law enforcement officer are

inadmissable into evidence if the statements are “involuntary.” 11

Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973); see

also Colorado v. Connelly, 479 U.S. 157, 165 (1986)

(involuntary confessions violate the Due Process Clause of Fifth

and Fourteenth Amendments). A statement is given voluntarily

if, when viewed in the totality of the circumstances, it is the

product of an essentially free and unconstrained choice by its

maker. Schneckloth, 412 U.S. at 225; United States v. Swint, 15

F.3d 286, 289 (3d Cir. 1994). If an individual’s will is

overborne or that person’s capacity for self-determination is

critically impaired, her or his statements are involuntary.

Schneckloth, 412 U.S. at 225-26. A suspect’s background and

experience, including prior dealings with the criminal justice

system, should be taken into account in the voluntariness

inquiry. See Oregon v. Bradshaw, 462 U.S. 1039, 1046 (1983)

11

While “[s]tatements made by a defendant in

circumstances violating . . . Miranda . . . are admissible for

impeachment if their trustworthiness . . . satisfies legal

standards[,] . . . any criminal trial use against a defendant of his

involuntary statement is a denial of due process of law . . . .”

Mincey v. Arizona, 437 U.S. 385, 397-98 (1978) (emphases and

third omission in original) (citations and internal quotation

marks omitted).

18

(plurality); United States v. Velasquez, 885 F.2d 1076, 1086 (3d

Cir. 1989). A necessary predicate to a finding of involuntariness

is coercive police activity. Connelly, 479 U.S. at 167. Further,

there must be some causal connection between the police

conduct and the confession. Id. at 164. The burden is on the

Government to establish, by a preponderance of the evidence,

that a challenged statement was voluntary. Lego v. Twomey,

404 U.S. 477, 489 (1972). Before delving into voluntariness

particular to our case, we consider first whether Sullivan misled

Jacobs into believing that her statements about the Stewart drug

conspiracy were not in the mix for use against her.

1. Did Sullivan make an implied promise

that Jacobs’ statements regarding the

Stewart drug conspiracy would not be

used against her?

A promise by a law enforcement officer may qualify as

coercion. United States v. Walton, 10 F.3d 1024, 1030 (3d Cir.

1993); United States v. Conley, 859 F. Supp. 830, 836 (W.D.

Pa. 1994). However, because “a law enforcement officer

promises something to a person suspected of a crime in

exchange for the person’s speaking about the crime does not

automatically render inadmissible any statement obtained as a

result of that promise.” Walton, 10 F.3d at 1028. Rather, a

promise—express or implied—is a factor (indeed, a potentially

significant one) in the totality of the circumstances inquiry as to

whether a statement was voluntary. Id.; Miller v. Fenton, 796

19

F.2d 598, 608 (3d Cir. 1986).

The District Court examined Walton and Conley in

considering the promises of law enforcement officers in the

context of a voluntariness inquiry. Jacobs, 312 F. Supp. 2d at

629-31. In Walton, an agent of the Bureau of Alcohol,

Tobacco, and Firearms met with the defendant on a park bench.

10 F.3d at 1027. The agent and the defendant were high school

classmates and the agent told the defendant that his statements

would be “off the cuff.” Id. The defendant then made several

incriminating statements. Id. The Government sought to use

these statements in a subsequent prosecution against the

defendant. Id. In analyzing the totality of the circumstances,

our Court emphasized that the inquiry did not rest solely on the

promises made. Id. at 1030. However, this did not diminish the

significance of the promise itself: “[G]iven the uniquely

influential nature of a promise from a law enforcement official

not to use a suspect’s inculpatory statement, such a promise may

be the most significant factor in assessing the voluntariness of

the accused’s confession in the light of the totality of the

circumstances.” Id. (citing United States v. Shears, 762 F.2d

397, 401-04 (4th Cir. 1985)). We determined that the

defendant’s prior relationship with the agent, his comment that

the conversation would be “off the cuff,” and that the defendant

had no reason to believe that he was the subject of a criminal

investigation, taken together, rendered the defendant’s

statements involuntary. Id.

20

In Conley a federal agent spoke with the defendant to

gain information about others involved in illegal activity. 859

F. Supp. at 833-35. At the initial meeting, the agent told the

defendant that he was willing to speak off the record and that

the defendant was not the target of the investigation. Id. at 833.

The agent also intimated that he was in a position to help the

defendant if he cooperated. Id. Several weeks later, the

defendant and the agent met at a hotel. Id. During that

conversation the defendant made numerous incriminating

statements. Id. at 834-35. The Government later sought to use

those statements in a prosecution against him. Id. at 832. The

Court determined that the statements were involuntary. Id. at

837. Although the Court noted that the “typical” indicators of

coercion were not present, the agent’s promise to speak off the

record and his friendly manner “combined to overcome

Conley’s reticence about making statements to the FBI.” Id.

After reviewing Walton and Conley, the District Court

determined that Jacobs made both her March and April

statements involuntarily. Jacobs, 312 F. Supp. 2d at 631-32.

The crux of the Court’s involuntariness holdings is its finding

that Sullivan made an implied promise to Jacobs that her

statements regarding the Stewart drug conspiracy would not be

used against her.12 Id. at 632. It reasoned:

12

It is unclear from the District Court’s opinion whether

it found an implied promise as to both statements or only as to

those made in April. See 312 F. Supp. 2d at 631-32. We need

21

Most importantly, [Jacobs’] ten year relationship

with [] Sullivan, during which he assisted her in

resolving criminal charges and the fact that she

was not aware that she was a target in the instant

criminal investigation and, in fact, provided

helpful information in the investigation, in the

Court’s view, establish, at least by implication,

that whatever [Jacobs] said would not be used

against her. Specifically, the implied promises by

[] Sullivan deprived [Jacobs] of the ability to

make a knowing and voluntary election of

whether to make a statement to the FBI Task

Force.

Id.

The Government inveighs against this reasoning (and its

inevitable conclusion) in many ways. We address each in turn.

(a) The Government begins by asserting that the District

Court “conclude[d] [erroneously] . . . that an implied promise

arose out of Jacobs’ status as a police informant.” (Emphasis

added.) However, the Court did not conclude this, for nowhere

not resolve this issue because, even giving Jacobs the benefit of

doubt (as we do) that the Court found an implied promise as to

the March statements, we conclude they were nonetheless

voluntary.

22

does it say that all informants have per se received an implied

promise not to have their statements used against them by virtue

of their status as informants. Rather, it explained that the

circumstances particular to this case gave rise to an implied

promise.

(b) The Government next emphasizes that Jacobs was

regularly admonished that she could not engage in any unlawful

acts except as specifically authorized, and that she would be

prosecuted if she engaged in those acts. It is true that Jacobs

was on notice that she could be prosecuted for breaking laws

without prior authorization, and does not argue otherwise.

Rather, she argues she was not on notice that Sullivan might use

her statements against her.

(c) The Government points out that Sullivan had assisted

Jacobs by speaking to prosecutors and then argues that any

promise could not have rendered Jacobs’ statements involuntary

because “[t]his court has repeatedly found . . . that even explicit

law enforcement ‘promises’ to refer the fact of a defendant’s

cooperation to prosecutors do not constitute unconstitutional

coercion” (citing United States v. Fraction, 795 F.2d 12 (3d Cir.

1986)). However, Fraction does not apply and the

Government’s argument fails because the District Court did not

find a promise “to refer”; it instead found an implied promise by

Sullivan not to use Jacobs’ statements against her. Indeed, our

Court has stated that “given the uniquely influential nature of a

promise from a law enforcement official not to use a suspect’s

23

inculpatory statement, such a promise may be the most

significant factor in assessing the voluntariness of the accused’s

confession.” Walton, 10 F.3d at 1030. Furthermore, those

promises need not be the product of an express representation

and can arise out of an understanding or custom that has

developed over the years. See Brady v. United States, 397 U.S.

742, 743 (1970) (confession must not be “obtained by any direct

or implied promises, however slight”) (emphasis added)

(internal quotation marks omitted).

(d) The next contention is that “the only possible implied

promise that could have arisen in this case is that . . . Sullivan

would have recommended to the relevant prosecutors that

[Jacobs] not be charged in connection with the Stewart

organization.” It does not support this conclusory statement

with any reasoning. Further, the statement is likely untrue, as

Jacobs could have inferred that, if Sullivan repeatedly went out

of his way to get her out of trouble, he would not then turn

around and affirmatively get her into trouble by using her

statements to him against her.

(e) Attack is made on the District Court’s reliance that

Jacobs had been paid in the past for providing information, as

“at best . . . this prior history could only reasonably lead the

defendant to believe that she could be paid if she provided

useful information.” But presumably the Court was reasoning

that, because when Jacobs had provided helpful information in

the past she received money (i.e., was rewarded), it was

24

reasonable to anticipate the same result when she provided the

helpful information about the Stewart drug conspiracy. Even if

she was not to be rewarded, she would at least infer she would

not be punished by having the information used against her.

While past payments for information might not imply a promise

to forgo use of Jacobs’ current statements against her, the

payments nonetheless are a valid factor supporting the existence

of an implied promise.

(f) The Government tries to minimize the damage of

Sullivan’s “cover you” statement. To recap, near the end of the

March 14 meeting Sullivan asked Jacobs if she had ever taken

a trip to Los Angeles for Stewart, and Jacobs replied she had

not. Sullivan then told Jacobs, “Listen[,] if you did, just tell me

. . . because if it comes out later, I can’t cover you.” The

Government is correct, of course, that this particular statement

cannot retroactively make involuntary what Jacobs said

beforehand in her March statements. However, it could make

Jacobs think that Sullivan would “cover her” (and thus not

affirmatively use her statements against her) if she gave him

information at the April 4 meeting. Furthermore, the statement

may indicate a general understanding between Jacobs and

Sullivan that existed throughout both meetings, i.e., that

Sullivan would cover Jacobs (and thus not use her statements

against her) as long as she let him know before “it c[a]me[] out

later” in what illegal activities she was involved.

(g) Continuing its assault on the District Court’s

25

conclusion of involuntariness, the Government turns to the

Court’s reliance on the fact that Jacobs did not know she was the

target of a criminal investigation and subject to possible

prosecution at the time of her statements. In Walton, we

concluded that

[m]ost important [to the finding of an implied

promise not to use the defendant’s statements

against him] is that in arranging the “off the

record” discussion with [the investigating official,

the defendant] had no reason to believe that he

was the subject of a criminal investigation; he

knew only that he had been the subject of a

regulatory inspection.

10 F.3d at 1030 (emphasis added). The Government is correct

that, at the time of the March statements, the FBI had not begun

an investigation and thus Jacobs was not yet a suspect.13 Thus,

the argument proceeds, Sullivan did not coercively mislead

13

The District Court reasoned, in part, that on March 14

Jacobs “had no reason to believe that she was the target of a

criminal investigation and subject to possible criminal

prosecution . . . .” 312 F. Supp. 2d at 631. This statement

implies the District Court found that Jacobs was a target of a

criminal investigation on March 14. As the investigation of the

Stewart organization did not begin until after March 14, Jacobs

was not a target at that time.

26

Jacobs on March 14 into thinking she was not the subject of an

investigation.

Turning to the April statements, the Government notes

that Sullivan began the meeting by telling Jacobs that he

believed she was involved in the conspiracy. However, this

does not necessarily mean that Jacobs knew she was the target

of a criminal investigation and subject to possible prosecution

at the time of the April statements. That Jacobs continued to act

as an informant rather than a suspect throughout that meeting

and during the next day (when she retrieved the suitcases from

her home and led Agent Duffey to the safe house) suggests that

she did not know she was the target of a criminal investigation

and subject to possible prosecution at the time of her April

statements.

(h) Finally, the Government argues as a fallback that,

assuming Sullivan did implicitly promise not to use Jacobs’

statements against her, his promise did not cause her to confess.

However, there is no evidence that Jacobs wanted to confess a

serious crime to an FBI agent who would try to use that

confession to put her in prison. Had Jacobs known Sullivan was

an adversary who would use her statements to convict

her—rather than believed he was an ally who would not use her

statements against her—it is hard to believe she would have

made the statements she did.

* * * * *

27

All these arguments and our responses aside, we need

not determine whether there was an implied promise. Instead,

we conclude that Sullivan’s behavior in relation to Jacobs

during their ten-year relationship gave her reason to believe that

he was significantly less likely than an average law enforcement

official would be to use her statements against her, but more

likely than if he had explicitly promised not to use her

statements. Making this determination is preferable to skewing

the totality of the circumstances calculus by forcing a

determination of “promise” or “no promise” when the real

answer is “something in between.” Thus, Jacobs’ decision to

make the statements to Sullivan, with whom she had cooperated

successfully for a decade, was significantly less “voluntary” and

“knowing” than it would have been had she made it to an

official with whom she has no prior relationship, and more

voluntary and knowing than it would have been had Sullivan

explicitly promised not to use her statements. It is sufficient

that we recognize this and consider it in the totality of the

circumstances inquiry of the voluntariness of the March and

April statements.

2. W ere the M arch statements

involuntary?

The Government argues that the March 14 meeting was

“the archetype of a voluntary encounter.” For the most part, we

agree. The voluntariness inquiry examines the totality of the

circumstances surrounding statements, and most of the

28

circumstances of the March statements indicate voluntariness.

Jacobs was the one who initiated that meeting with her phone

call to Sullivan. She controlled when it took place (March 14,

2000) and where (her hotel). In addition, she chose what was

discussed (the Stewart drug organization). We recognize that

Sullivan’s behavior in relation to Jacobs during their ten-year

relationship gave her reason to believe that Sullivan was

significantly less likely than an average FBI agent to use her

statements against her. Yet we nevertheless conclude that

Jacobs’ March statements were voluntary because most of the

circumstances of the March statements point to her willingness

to speak by her own choice.

3. Were the April statements involuntary?

The April meeting presents a far different picture than the

March meeting. The April statements were not offered at

Jacobs’ request and the meeting was neither held on her terms

nor at the location of her choosing. Further, four of the same

factors indicating that Jacobs was in custody on April 4 also

suggest that her statements on that date were involuntary: (1)

Jacobs was summoned to FBI offices without explanation; (2)

Sullivan’s questions were confrontational and intimidating; (3)

he used interrogation tactics, including placing the

incriminating suitcases in Jacobs’ view; and (4) Jacobs did not

agree to meet with Sullivan with knowledge of the fact that

questioning about a criminal offense would take place.

29

In addition, toward the end of the March meeting,

Sullivan asked Jacobs if she had ever taken a trip to Los

Angeles for Stewart, and Jacobs said that she had not. As

already noted, Sullivan then told Jacobs, “Listen[,] if you did,

just tell me . . . because if it comes out later, I can’t cover you.”

This statement likely made Jacobs think that Sullivan would

“cover her” (and thus not affirmatively use her statements

against her) if she gave him information at the April meeting.

Further, Jacobs believed her April conversation with

Sullivan to have been between informant and law enforcement

contact, not suspect and policeman. She was not advised that

her statements might be used against her in a later criminal

prosecution. When she left the FBI office, Sullivan told her she

should go home and think about what she wanted to do

regarding further cooperation with the FBI. On April 5, she

provided the FBI with additional information, giving Duffey the

suitcases and leading him to the safe house where Robert

Shepard, a target of the FBI’s investigation, was located. Thus

Jacobs did not know she was the target of a criminal

investigation and subject to possible prosecution at the time of

the April statements. In Walton, this was the “[m]ost

important” factor to our involuntariness holding. 10 F.3d at

1030.

Finally, Sullivan’s behavior in relation to Jacobs during

their ten-year relationship gave her reason to believe that

Sullivan was significantly less likely than an average police

30

official to use her statements against her. First, he had

previously authorized her to engage in criminal activity, and

specifically to transport drugs. Further, he had paid her several

thousand dollars for information. Because when Jacobs had

provided helpful information in the past she was rewarded, it

was reasonable to anticipate the same result when she provided

helpful information about the Stewart drug conspiracy. Even if

she was not to be rewarded, she would at least infer she would

not be punished by having the information used against her.

Finally, on numerous occasions Sullivan had assisted Jacobs

when she engaged in unauthorized criminal activities. Jacobs

could have reasonably inferred that, if Sullivan repeatedly went

out of his way to get her out of trouble that she was already in,

he would not then turn around and affirmatively get her into

trouble by using her statements to him against her.

We thus conclude that Jacobs’ April statements were

involuntary.

* * * * *

In this context, we hold that Jacobs’ March statements

were voluntary, but that her April statements were involuntary

and taken in violation of Miranda. Accordingly, we will

reverse the District Court’s order suppressing the March

statements, and we will affirm the District Court’s order

suppressing the April statements.

31

ALDISERT, Circuit Judge, concurring in part and dissenting in

part:

I am pleased to join in the portion of the majority opinion

affirming the District Court’s judgment with respect to the April

4, 2000 statements (“the April 4 statements”). I must

respectfully dissent, however, from the majority’s opinion

insofar as it concludes that the March 14, 2000 statements (“the

March 14 statements”) were voluntary. I do not believe that the

District Court’s finding that there was an implied promise not to

use Jacobs’ March 14 statements against her was clearly

erroneous. Accepting this finding as correct, I agree with the

District Court that the March 14 statements were involuntary,

and accordingly should be suppressed. I would therefore affirm

the District Court’s judgment.

I.

In determining that Jacobs’ March 14 statements were

involuntary, the District Court relied on the following six

factors:

a. The ten year law enforcement officer/informant

relationship between the Defendant and SFO

Sullivan that produced significant and substantial

information to law enforcement agencies;

b. At the time she was summoned to the

Wilmington FBI Office, the Defendant had no

32

reason to believe that she was the target of a

criminal investigation and subject to possible

criminal prosecution;

c. Although no specific promises of assistance

were made, SFO Sullivan had assisted the

Defendant on numerous occasions in the past in

regard to her involvement in criminal matters,

asking prosecutors and probation officers to be

lenient on Defendant;

d. The Defendant had been authorized in the past

to engage in criminal activity, specifically to

transport drugs and be in the presence of drug

activity on more than one occasion;

e. The Defendant had been specifically authorized

to engage in the drug conspiracy that was the

subject of the questions Defendant was subjected

to by SFO Sullivan;

f. Although no specific promises of payment

were made, the Defendant had received payments,

for the information that she provided, of

approximately $3,450 from August 1997 through

January 2000, two months before the statement at

issue was made.

United States v. Jacobs, 312 F. Supp. 2d 619, 631 (D. Del.

2004).

As an initial matter, I agree with the Government that

33

several of the factual findings relied upon by the District Court

are clearly erroneous. First, I believe that the District Court’s

statement that Jacobs was summoned to the Wilmington FBI

Office on March 14, 2000, is clearly erroneous. It conflicts with

the District Court’s own “findings of fact” section, which states

that “Defendant contacted SFO Sullivan by calling his cell

phone at approximately 6:00 p.m.” See id. at 624.

Second, the District Court’s opinion erroneously implies

that Jacobs was already “the target of a criminal investigation

and subject to possible criminal prosecution” at the time of her

meeting with Sullivan. In fact, Jacobs was not a target of a

criminal investigation until after the March 14 meeting. See id.

at 625 (stating that it was not until March 29, 2000, that a

second source provided information implicating Jacobs in the

drug ring).

Third, I believe that the District Court’s finding that

“[t]he Defendant had been specifically authorized to engage in

the drug conspiracy that was the subject of the questions

Defendant was subjected to by SFO Sullivan” is clearly

erroneous because there is no support for it in the record.

Indeed, the testimony in the record is to the contrary; Jacobs had

never even mentioned Bruce Stewart to her FBI handlers prior

to March 14, 2000.

II.

34

That some of these factual findings were erroneous,

however, does not vitiate the District Court’s finding that there

was an implied promise not to use Jacobs’ statements against

her. The District Court concluded that all the factors taken

together “establish, at least by implication, that whatever the

Defendant said would not be used against her,” and that the

implied promise “deprived [Jacobs] of the ability to make a

knowing and voluntary election of whether to make a statement

to the FBI Task Force.” 14 Id. at 632.

The District Court’s conclusion that the FBI impliedly

promised Jacobs that her statements would not be used against

her is a finding of fact. See United States v. Braxton, 112 F.3d

777, 783 (4th Cir. 1997) (applying clear error standard to district

court’s finding that officer’s statement constituted an implied

promise); cf. United States v. Strawser, 739 F.2d 1226, 1229

14

After noting that it had considered all of the facts supporting

its conclusion, the District Court stated: “Most importantly, the

Defendant’s ten year relationship with SFO Sullivan, during which he

assisted her in resolving criminal charges and the fact that she was not

aware that she was a target in the instant criminal investigation and,

in fact, provided helpful information in the investigation, in the

Court’s view, establish, at least by implication, that whatever the

Defendant said would not be used against her.” Id. at 632. As

discussed above, Jacobs was not a target on March 14, 2000. The

District Court, however, was discussing both the March 14 statements

and the April 4 statements in this passage, and I interpret this

reference to refer only to the April 4 statements.

35

(7th Cir. 1984) (“In this case we hold that the district court was

not clearly erroneous in its finding that the government made no

express or implied promises [that induced defendant’s guilty

plea].”); Kingsford v. Salt Lake City School Dist., 247 F.3d

1123, 1132 (10th Cir. 2001) (holding that the existence of an

implied-in-fact promise to terminate for cause is a question of

fact for the jury).15 Although the District Court’s ultimate

15

I recognize that the distinction between questions of fact

and mixed questions of law and fact is often elusive. See Miller v.

Fenton, 474 U.S. 104, 113 (1985) (“[T]he Court has yet to arrive at

‘a rule or principle that will unerringly distinguish a factual finding

from a legal conclusion.’”) (citations omitted). To be sure, there are

some legal standards applicable to implied promises. For example,

in Fraction this Court noted that the existence of an implied promise

is judged from the defendant’s, rather than the officer’s, perspective.

United States v. Fraction, 795 F.2d 12, 15 (3d Cir. 1986). But the

mere existence of relevant legal standards does not automatically

transform a question of fact, which is reviewed for clear error, into a

mixed question of law and fact, which is reviewed de novo. Indeed,

the existence a promise has long been held to be question of fact. See

Williston on Contracts § 8:5, at 102 (Richard A. Lord ed. 4th ed.

1992) (“[T]he existence and scope of promises are questions of fact,

and a determination that a promise exists will not be overturned on

appeal unless it is clearly erroneous.”). Moreover, as a matter of

judicial allocation, trial courts are far better suited to decide whether

a promise arose out of a given set of facts. See Miller, 474 U.S. at

113-114 (“[T]he decision to label an issue a ‘question of law,’ a

‘question of fact,’ or a ‘mixed question of law and fact’ is sometimes

as much a matter of allocation as it is analysis.”). Unlike the ultimate

determination of “voluntariness,” the existence of a promise is not a

36

determination of whether a statement was voluntary is a legal

determination subject to plenary review, we review the factual

findings underlying that determination for clear error. United

States v. Walton, 10 F.3d 1024, 1027 (3d Cir. 1994); see also

Miller v. Fenton, 474 U.S. 104, 115 (1985). Accordingly,

absent clear error, this Court may not disregard the District

Court’s finding of an implied promise.

We have recently re-iterated that “[u]nder the clearly

erroneous standard, ‘a finding of fact may be reversed on appeal

only if it is completely devoid of a credible evidentiary basis or

bears no rational relationship to the supporting data.’” Shire US

Inc. v. Barr Labs., Inc., 329 F.3d 348, 352 (3d Cir. 2003)

(quoting American Home Prods. Corp. v. Barr Labs., Inc., 834

F.2d 368, 370-371 (3d Cir. 1987)).

The Government argues that the District Court’s finding

is clearly erroneous because “there is no evidence in the record

to support either an objective or subjective belief by the

defendant that her statements to SFO Sullivan would not be used

against her.” Although I agree that evidence for this conclusion

is scant, I cannot agree that it is nonexistent. Certain matters are

clear. Sullivan never made an express promise of immunity.

Furthermore, no finding of fact indicates that Jacobs had

previously admitted unauthorized criminal conduct to Sullivan,

legal principle that “can be given meaning only through its

application to the particular circumstances of a case.” Id. at 114.

37

or that Sullivan had failed to use any admission against her.

Even in the absence of an express promise of immunity,

however, I believe that the course of dealings between Jacobs

and Sullivan provides a rational basis for the District Court’s

conclusion that Jacobs reasonably understood there to be a

promise not to use her statements against her. The District

Court heard testimony regarding the ten year relationship

between Sullivan and Jacobs, during which Jacobs provided

substantial information to Sullivan regarding numerous criminal

investigations. Jacobs had been financially compensated for this

information, and Sullivan had talked to law enforcement and

courts on Jacobs’ behalf on several occasions when she had

criminal charges pending against her. Jacobs had also been

authorized to engage in drug purchases on numerous occasions,

most recently from February 24, 1999, to May 27, 1999. Even

when she was not specifically authorized to engage in criminal

activity, she would contact Sullivan whenever she obtained

information pertinent to some criminal activity. Although this

evidence is not overwhelming, I cannot conclude that the

circumstances detailed above do not rationally support the

District Court’s finding of an implied promise.

III.

Having determined that the District Court’s finding of an

implied promise was not clearly erroneous, the next question is

whether, accepting this finding as correct, the District Court

38

erred in determining that the statements were involuntary.

Over a century ago, the Supreme Court held that

statements are involuntary when “obtained by any direct or

implied promises, however slight.” Bram v. U.S., 168 U.S. 532

(1897). The existence of a promise, however, “does not

automatically render inadmissible any statement obtained as a

result of that promise.” Walton, 10 F.3d at 1028. Rather, a

promise, either express or implied, is a factor in the totality of

the circumstances inquiry of whether a statement is voluntary.

See id. at 1028; see also Miller v. Fenton, 796 F.2d 598, 608 (3d

Cir. 1986) (“[P]romises do not trigger an analysis different from

the totality of the circumstances test.”). Nonetheless, a promise

may often be “the most significant factor in assessing the

voluntariness of an accused’s confession in light of the totality

of the circumstances.” Walton, 10 F.3d at 1030.

Here, the totality of the circumstances supports the

District Court’s determination that Jacobs’ statements were

involuntary. Although, as the majority points out, Jacobs

initiated the March 14, 2000 meeting and selected the location,

I do not believe that these circumstances render the statement

voluntary. See United States v. Conley, 859 F. Supp. 830, 837

(W.D. Pa. 1994) (holding that although the typical indicators of

coercion were not present, agent’s promise to speak off the

record and his friendly manner “combined to overcome

Conley’s reticence about making statements to the FBI”). The

involuntariness here stemmed from Jacobs’ belief that she could

39

bring information to Sullivan and that he would not later use the

information against her. Had there been no such perceived

understanding, Jacobs would not have subjected herself to

criminal liability by delivering potentially incriminating

information to Sullivan. The March 14 statements were

therefore the direct product of the implied promise, and cannot

be considered voluntary. Accordingly, I believe that the totality

of the circumstances supports the District Court’s conclusion

that the March 14 statements were involuntary.

IV.

Although I admit that this is a close case, I would affirm

the District Court. The existence of an implied promise is a

finding of fact, and it cannot be said that the District Court

committed clear error in determining that the surrounding

circumstances gave rise to an implied promise. Having accepted

the District Court’s finding that there was an implied promise,

I agree with its conclusion that the March 14 statements were

involuntary and should be suppressed. I respectfully dissent.

40