517 F.3d 20 (1st Cir. 2008)
The United States prosecuted Jerri C. Lewis for bank robbery after FBI Special Agent Michael E. Degnan identified her from photographs taken during a robbery on October 9, 1986.1 Degnan recognized Lewis from his prior work as case agent in an earlier bank robbery prosecution that resulted in her conviction, and Lewis was arrested on October 20, 1986.2
On October 21, 1986, Degnan and Special Agent Fujita visited the prison ward of San Francisco General Hospital to interview Lewis, where they learned from the hall nurse that she had just returned from surgery to remove an abscess on her left shoulder caused by narcotics injection.3 The agents spoke with her for approximately two minutes, during which Degnan asked whether she was going to come clean and Lewis replied that she would, and when asked how many robberies they would discuss she responded that the number was three; the agents then told her they would return the next day.4
The agents returned on October 22, 1986, and the hall nurse informed them that Lewis was alert and not under any medication that would affect her ability to be interviewed.5 Lewis appeared alert, looked much better than the day before, and stated she was feeling okay.6 Agent Fujita gave her a copy of the FO 395 Advice of Rights and Waiver Form, read it to her, and she signed it to indicate waiver of counsel while acknowledging that no promises, threats, pressure, or coercion had been used against her.7 During the interview Lewis admitted committing three robberies and commented on photographs of the crimes shown to her.8
Lewis moved to suppress both statements, arguing in her memorandum that the October 21 statement was involuntary because she was a heroin addict suffering from drug withdrawal and was questioned hours after awakening from general anesthesia, and that the October 22 statement was obtained through exploitation of the prior admission.9 At the December 18, 1986 hearing on the motion, the district court stated that the first statement was not knowing and voluntary before hearing argument from counsel, relying on the judge's personal experience coming out of general anesthesia, even though the factual issues had been submitted on declarations filed by each party and the court stated it was resolving controverted facts in favor of the government while discounting the defendant's claims.10
The government appealed the suppression order.11 The appeal was submitted on the declarations, with the district court having accepted as true the facts set forth in Degnan's declaration and having rejected all contradictory statements in Lewis's declaration as untrue.12
Whether the district court properly relied on the trial judge's personal experience recovering from general anesthesia in determining the voluntariness of Lewis's October 21, 1986 statement?13
The trial judge in this matter was not a competent witness to Lewis' condition.14 The judge presiding at the trial may not testify in that trial as a witness.15 Furthermore, Rule 602 of the Federal Rules of Evidence prohibits a witness from testifying unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.16 A trial judge is prohibited from relying on his personal experience to support the taking of judicial notice.17 It is therefore plainly accepted that the judge is not to use from the bench, under the guise of judicial knowledge, that which he knows only as an individual observer outside of court.18
No. The district court relied on the judge's personal experience to conclude that the first statement was not knowing and voluntary.19 This reliance was improper because the trial judge may not testify as a witness.20 The trial judge may not use personal knowledge for judicial notice without following the proper procedures.21 The evidence accepted by the court showed that Lewis was alert and responsive during the brief conversation.22 There was no indication of involuntariness from the record.23
The district court erred in relying on its personal experience to determine that the October 21 statement was involuntary.24
Whether the evidence contained in Degnan's declaration supported the conclusion that Lewis's October 21, 1986 statement was voluntary?25
We review de novo a district court’s conclusion that a statement was involuntary.26 We review the district court’s findings of fact under the clearly erroneous standard.27 Because the district court accepted the facts found in Degnan’s declaration as true, in our review of the evidence, we must make the same assumption on this appeal.28
Yes. The evidence shows that Lewis said she was feeling O.K.29 Lewis was alert and her answers to the agent’s questions were responsive.3031 She was able to recall past events accurately including the inability of Special Agent Fujita to run as fast as she can.32 All contradictory statements in Lewis’ declaration were rejected by the court as untrue.33
Degnan’s declaration shows that her responses were made knowingly and voluntarily.34 There was no evidence in Degnan’s declaration that would support an inference that Lewis was withdrawing from heroin addiction on October 21, 1986 or what effect such condition would have on her ability to act voluntarily.35 There is no evidence in the record showing when she last injected or ingested any narcotic substance.36
The evidence in Degnan's declaration supported the conclusion that the October 21 statement was voluntary.37
Whether Lewis's October 22, 1986 confession was admissible after she received Miranda warnings and executed a written waiver, even assuming the prior statement was involuntary?38
In Oregon v. Elstad, the Supreme Court declined to treat the failure to admonish a defendant of his right to counsel during interrogation and his right to remain silent as the equivalent of actual coercion. This would taint and render inadmissible a subsequent voluntary statement made after a proper warning and waiver. The Court held that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.39
Yes. The government concedes that the October 21 statement is inadmissible because the agents failed to warn Lewis of her right to counsel and the right to remain silent.40 The fact that the admission obtained on October 21 was not preceded by a Miranda warning does not compel exclusion of the confession obtained the following day.41 Lewis was advised of her constitutional rights.42
She signed a waiver form which stated that no pressure or coercion of any kind has been used against her.43 The agents did not refer to the fact that she had made a statement the previous day.44 The evidence shows that she had prior experience with law enforcement and was aware of the procedure for waiving of her constitutional rights.45
Lewis's October 22 confession was admissible even assuming the prior statement was involuntary.46
Whether the district court erred in suppressing the October 22, 1986 confession on the ground that it was not sufficiently attenuated from the October 21 statement?47
Under the Supreme Court’s analysis in Elstad, in determining the admissibility of a defendant’s statement given after the Miranda warning, the court should look first to determine whether the statement made by a defendant before the Miranda warning was actually coerced in violation of the fifth amendment.48 If it was, then the court must suppress the evidence unless the violation was sufficiently attenuated to permit the use of the evidence under the standards announced in Brown v. Illinois.49 If, on the other hand, the prior statement was voluntary in the sense that it was not coerced in violation of the fifth amendment, though obtained in technical violation of the Miranda requirements, the court should suppress the statement given after the Miranda warning only if the court finds that the subsequent statement was not voluntarily made.50
No. The district court concluded that the second statement was inadmissible on the ground that it was not sufficiently attenuated from the effect of non-coercive but abusive and clearly improper procedures.51 Twenty-four hours elapsed between the time of the first conversation and Lewis’ confession on October 22.52 The agents had no contact with Lewis during this time.53 The evidence does not show that the interview on the second day was a continuation of what had occurred on the previous day.54
The agents did not refer to the fact that she had made a statement the previous day. There is no evidence to support the trial court’s oral finding that Lewis had no opportunity to talk to anyone else prior to the second conversation.55 This contradicted the court’s finding that she was emerging from the effects of heroin and an anesthetic on October 22. Degnan stated in his declaration that the hall nurse told him that Lewis was alert and not on any medication which would affect her ability to be interviewed. Lewis looked alert and much better than she did the day before.56
She told Degnan that she was feeling O.K.57 The totality of the facts and circumstances demonstrate that there was sufficient attenuation from any alleged illegality in the prior interview.58
The district court erred in suppressing the October 22 confession on attenuation grounds.59