                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  __________

                                   No. 01-4005
                                   __________

United States of America,              *
                                       *
      Appellant,                       *
                                       * Appeal from the United States
      v.                               * District Court for the Western
                                       * District of Missouri.
Michael Edward LeBrun,                 *
                                       *
      Appellee.                        *
                                   __________

                             Submitted: May 14, 2002

                                  Filed: October 3, 2002
                                   __________

Before HANSEN, Chief Judge, MORRIS SHEPPARD ARNOLD, Circuit Judge, and
      PRATT,1 District Judge.
                              __________
PRATT, District Judge.




      1
       The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa, sitting by designation.
       The United States of America appeals from the district court’s2 ruling suppressing
all out-of-court statements made by Michael Edward LeBrun on September 21, 2000.
We affirm the district court’s ruling.

                                           I.

        In January 1968, Michael Edward LeBrun and United States Naval Ensign
 Andrew Muns were shipmates aboard the U.S.S. Cacapon, a Navy fueling vessel.
 Both men were assigned to work in the ship’s disbursement office, an area where cash
 was kept in a safe for purposes of paying the ship’s personnel. Sometime in the late
 evening hours of January 16, or in the early morning hours of January 17, 1968, while
 the ship was moored in Subic Bay, Philippines, Ensign Muns disappeared. Shortly
 after Muns’ disappearance, approximately $8600 was found to be missing from the
 disbursement office. Naval investigators conducted an investigation and concluded
 that Muns had stolen the money from the disbursement office and deserted the Navy.

       Having never believed the conclusion of the Navy, Muns’ sister convinced
 Special Agent Peter Hughes of the Naval Criminal Investigative Service, Cold Case
 Homicide Unit (NCIS), to reopen the investigation in August 1998. On four separate
 days in November 1999, NCIS agents interviewed LeBrun concerning his
 involvement in Muns’ disappearance. On the first occasion, November 17, 1999,
 Special Agent Hughes told LeBrun that he was conducting security clearance
 background investigations on people that LeBrun worked with in the military. He
 asked LeBrun to meet him at the Gardner, Kansas Police Department. Once there,
 Hughes informed LeBrun that the true purpose of the meeting was to discuss the
 disappearance of Muns. During the nearly five hour interview, LeBrun provided
 vague answers and agreed to submit to a polygraph examination. Two days later, on


    2
      The Honorable H. Dean Whipple, United States District Judge for the Western
District of Missouri.

                                          -2-
November 19, 1999, LeBrun drove himself to the Kansas Bureau of Investigation to
take a polygraph examination. Upon his arrival, LeBrun was informed of his Miranda
rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966). No polygraph examination was taken that day, but a four hour interview was
conducted. LeBrun returned to the Kansas Bureau of Investigation on November 20,
1999, was again given his Miranda rights, and again consented to speak to
investigators. On this occasion, he stated that he may have repressed memories
regarding Muns’ disappearance and asked Hughes if he knew of a therapist who
could help him reveal the memories. Again, no polygraph examination was
administered. On November 21, 1999, LeBrun met with investigators at the Olathe,
Kansas Police Department. LeBrun was advised of his Miranda rights, executed a
Civilian Suspect Acknowledgment and Waiver of Rights Form, and proceeded to
participate in an interview with investigators. At the end of the interview, LeBrun
indicated that he wanted to attempt to recover his repressed memories and suggested
another interview in approximately three weeks. On December 16, 1999, Special
Agent Hughes called LeBrun to inquire as to his progress. LeBrun relayed that he
had not recovered any repressed memories since the last interview. Hughes had no
further contact with LeBrun until after his confession on September 21, 2000.

        In September 2000, Hughes and two other NCIS agents, Special Agents Early
and Grebas, decided to talk to LeBrun again. The agents believed that LeBrun was
the primary suspect in Muns’ disappearance. Agent Hughes indicated that a
significant amount of planning took place prior to the interview in an effort to make
it as formal a process as possible. Agents planned in advance how LeBrun would be
transported to the interview, who would conduct the interview, and whether or not the
Miranda warnings would be read to him3. They also arranged to have enlarged

3
   The agents testified at the suppression hearing that they did not believe
Miranda warnings would be required as they did not have probable cause to arrest
LeBrun and because they did not believe the interrogation would be custodial in
nature.

                                        -3-
photos of LeBrun’s family and house, the U.S.S. Cacapon and LeBrun’s shipmates,
and other scenes from LeBrun’s life on the walls in the interview room.

      On September 21, 2000, Special Agent Early and Corporal Hunter of the
Missouri Highway Patrol drove to LeBrun’s office, without prior notice, in plain
clothes. Corporal Hunter identified himself to LeBrun, told him they were
conducting an investigation, and asked LeBrun to accompany them. LeBrun asked
what the investigation was about. Corporal Hunter told him that they could not tell
him what it was about, but that it had nothing to do with his family. LeBrun,
believing that it had to do with certain potentially illegal activities of his employer,
agreed to accompany the officers.

       Once outside, LeBrun was told by the officers that they would give him a ride.
LeBrun offered to drive himself, but the officers told him they would prefer he ride
with them. LeBrun rode to the Highway Patrol Station in the front passenger seat of
an unmarked highway patrol car. Both Agent Early and Corporal Hunter carried
firearms, however, LeBrun was only aware that Corporal Hunter was armed.

       Once at the Highway Patrol Station, LeBrun was told that he was not under
arrest, and that he was free to terminate the interview and leave the building at any
time. Agent Early, who had not yet identified himself as an NCIS investigator,
advised LeBrun that he was subject to audio and video recording anywhere in the
building. Agent Early then led LeBrun to the interview room. The walls of the
windowless room were covered with the enlarged photos from LeBrun’s life. LeBrun
was seated in a straight chair with his back to the wall. Once seated, Agent Early
identified himself as an NCIS investigator. Agent Grebas entered a short time later
and began the interview. Agents Early and Grebas sat in chairs with armrests and
rollers a few feet in front of LeBrun. No furniture was positioned between the agents
and LeBrun. The agents were not armed while in the interrogation room.



                                          -4-
       Agents Early and Grebas admittedly lied to LeBrun about the level of evidence
they had implicating him in Muns’ disappearance. Early during questioning, Agent
Early told LeBrun, “There is absolutely no doubt that you were responsible for Ensign
Muns death. Absolutely no doubt about it. I know you know that. I know you
believe it. I believe it.”4 The agents also intimated that they had two eyewitnesses
to Muns’ death and a suicide note written by a third individual that implicated LeBrun
in Muns’ death. Agent Early indicated that the only issue he and Agent Grebas were
interested in was whether Ensign Muns’ death was premeditated or spontaneous.
Agent Early also told LeBrun, “[W]e have information and we have evidence that is
going to result in grand jury proceedings.”5 The agents told LeBrun that they were
ready to proceed with a premeditated murder charge against him, that he would be
extradited to Alaska, his reputation would be destroyed, his family’s reputation would
be destroyed, and he would be financially ruined. The Agents also told LeBrun that
Muns’ family would file a civil suit against him and asked LeBrun, “How do you
think [Jon Benet Ramsey’s] family is living today.”6 The agents advised LeBrun that
Ensign Muns’ family was present at the Highway Patrol Station and were prepared
to forgive him if he admitted to a spontaneous killing.7

       After approximately thirty-three minutes, LeBrun confessed to the murder of
Ensign Muns. He stated that Muns walked into the disbursement office while he was
stealing money from the ship’s safe. According to LeBrun, he panicked and killed
Muns. LeBrun then went on to describe how he disposed of the victim’s body and
eventually reenacted the murder with Agent Early in the role of the victim. After the


4
    Interrogation Tr. at 4.
5
    Id. at 5.
6
    Id. at 13.
7
   Ensign Muns’ sister and a law enforcement agent masquerading as Muns’
brother were, in fact, in another room at the station.

                                         -5-
reenactment, LeBrun asked to use the bathroom and requested a cigarette break.
Special Agent Early accompanied LeBrun to the restroom and then escorted him
outside for a cigarette.8 After reentering the station, LeBrun was asked if he wanted
to apologize to Muns’ sister. She entered the interview room, along with Special
Agent Billington of NCIS who represented to LeBrun that he was Muns’ brother.
Agents Early and Grebas knew that LeBrun was recovering from cancer and told him
that the agent posing as Muns’ brother had advanced cancer and had only a short time
to live. Agent Billington told LeBrun that he wanted to find out everything about his
“brother’s” death. LeBrun became emotional and apologized to Muns’ sister for his
death. He asked if he could maintain contact with the family as he uncovered more
memories about the death, but was advised that he should communicate through
NCIS agents. In total, the interview lasted approximately two hours. At its
conclusion, LeBrun consented to a search of his home. Agents Early and Grebas
drove LeBrun home and conducted the search. LeBrun was not arrested that day, but
was later arrested and indicted for felony murder.

      LeBrun moved to suppress inculpatory statements made during the interview.
LeBrun claimed that he was subjected to a custodial interrogation without the benefit
of Miranda warnings and that his confession was involuntary. The Government


8
    Agent Early testified that he accompanied LeBrun to the restroom because he
also needed to use the facilities. He further testified that, although he didn’t
smoke, he escorted LeBrun outside to ensure he would be able to get back into the
building and to ensure he wouldn’t hurt himself or others. LeBrun testified that he
believed Agent Early was “escorting” him. The district court, in its findings of
fact, determined that LeBrun’s account and testimony at the suppression hearing
were more credible. “Because the district court is in a better position to assess the
credibility of the witnesses, its determinations regarding credibility are ‘virtually
unreviewable on appeal.’” United States v. Black, 88 F.3d 678, 680 (8th Cir.
1996) (quoting United States v. Heath, 58 F.3d 1271, 1275 (8th Cir.1995)). We
find no clear error in the district court’s decision to credit LeBrun’s testimony on
these questions.

                                         -6-
argued that LeBrun’s confession was voluntary and that he was not in custody, thus
no Miranda warning was required. The district court concluded that all but two of the
factors outlined in United States v. Griffin, 922 F.2d 1343, 1379 (8th Cir. 1990),
weighed in favor of a finding that LeBrun was in custody and that LeBrun’s
confession was inadmissible based on the failure to advise LeBrun of his Miranda
rights. The district court also found LeBrun’s confession to be involuntary based on
the totality of the circumstances.
                                         II.

       The review of a district court’s “in custody” determination for Miranda
purposes involves a “mixed question of law and fact requiring ‘[t]wo discrete
inquiries.’” Evans v. Rogerson, 223 F.3d 869, 872 (8th Cir. 2000) (citing Thompson
v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 459, 133 L. Ed. 2d 383 (1995)). We
will uphold findings of historical fact unless they are clearly erroneous, but we review
the application of the controlling legal standard to the facts de novo. United States
v. Axsom, 289 F.3d 496, 500 (8th Cir. 2002).

                                          III.

       There is no dispute that LeBrun was not formally placed under arrest either
before, or immediately after his interrogation by Agents Early and Grebas. However,
formal arrest is not the only circumstance where Miranda warnings must be given.
Miranda requires that any time a person is subject to custodial interrogation, a law
enforcement officer must, prior to commencing questioning, advise the person of his
right to be free from compulsory self-incrimination and of his right to have the
assistance of counsel. Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. A determination
of whether an individual is in custody requires a careful evaluation of the totality of
the circumstances. United States v. Hanson, 237 F.3d 961, 963 (8th Cir. 2001). To
determine whether LeBrun was entitled to have the Miranda warning read to him, we



                                          -7-
must decide whether the questioning of LeBrun by Agents Early and Grebas was
custodial in nature.

       The mere fact that an investigation has focused on a particular suspect does not
trigger the need for Miranda warnings in noncustodial settings. Minnesota v.
Murphy, 465 U.S. 420, 431, 104 S. Ct. 1136, 1144, 79 L. Ed. 2d 409 (1984). Rather,
a suspect is deemed “in custody” and entitled to Miranda warnings only when he has
been formally arrested or when he is “deprived of his freedom of action in any
significant way.” Miranda, 384 U.S. at 444, 86 S. Ct. at 1612; Berkemer v. McCarty,
468 U.S. 420, 429, 104 S. Ct. 3138, 3144-45, 82 L. Ed. 2d 317 (1984). To make this
determination, we must examine the physical and psychological restraints placed on
the suspect during the interrogation in light of whether a reasonable person in the
suspect’s position would have understood the situation to be custodial. Griffin, 922
F.2d at 1349 (citing Berkemer, 468 U.S. at 442, 104 S. Ct. at 3151). We must also
examine “the place, purpose and length of the interrogation, the suspect’s freedom to
leave the scene, and other indicia of custody.” Griffin, 922 F.2d at 1349. “The
initial determination of custody depends on the objective circumstances of the
interrogation, not on the subjective views harbored by either the interrogating officers
or the person being questioned.” Stansbury v. California, 511 U.S. 318, 323, 114
S.Ct. 1526, 1529, 128 L. Ed. 2d 293 (1994).


      While not an exhaustive list, we have identified relevant mitigating and
aggravating factors to be considered in determining whether, under the totality of the
circumstances, a suspect is in custody. Griffin, 922 F.2d at 1349. These factors are:
      (1) whether the suspect was informed at the time of questioning that the
      questioning was voluntary, that the suspect was free to leave or request
      the officers to do so, or that the suspect was not considered under arrest;
      (2) whether the suspect possessed unrestrained freedom of movement
      during questioning; (3) whether the suspect initiated contact with
      authorities or voluntarily acquiesced to official requests to respond to


                                          -8-
      questions; (4) whether strong arm tactics or deceptive stratagems were
      employed during questioning; (5) whether the atmosphere of the
      questioning was police dominated; or, (6) whether the suspect was
      placed under arrest at the termination of the questioning.
Id. The first three Griffin factors, if answered affirmatively, weigh against a finding
of custody, while the last three factors weigh in favor of a finding of custody.


       There is no dispute that Agents Grebas and Early informed LeBrun, prior to the
commencement of questioning, that he was not under arrest. Additionally, Agents
Early and Grebas both testified that LeBrun was free to leave the interrogation at any
time. The appellant contends that Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711,
50 L. Ed. 2d 714 (1977), controls the issue. In Mathiason, a police officer
investigating a theft left his card at the suspect’s apartment with a note asking him to
call. Id. at 493, 97 S. Ct. at 713. The suspect called the officer and the officer and
the suspect met at the state patrol office, approximately two blocks from the suspect’s
home, a short time later. Id. The officer met the suspect in the hallway, took the
suspect to a room, and advised him that he was not under arrest. Id. Only five
minutes after arriving at the office, the suspect admitted to the theft. Id. The Supreme
Court found the situation non-custodial, relying on the suspect’s voluntary presence
at the police station, the short duration of the interview, and the fact that his freedom
to depart was not in any way restricted. Id. at 495, 97 S. Ct. at 714.


       We find the facts of this case readily distinguishable from Mathiason. In this
case, officers whom LeBrun had never met before arrived at his place of employment
and requested that LeBrun accompany them in regards to a matter which the officers
would not identify. While LeBrun was generally acquiescent in the suggestion of
officers to ride with them, it is clear that the officers made affirmative efforts to
prevent LeBrun from driving his own vehicle from his office in Oak Grove, Missouri
to the Highway Patrol Station in Lee’s Summit, Missouri. The two towns are at least


                                          -9-
thirteen miles apart and no public transportation is available between them. Because
LeBrun rode to the station with the officers, on the suggestion of the officers, he was
dependent on those same authorities for a ride home. While there was no affirmative
lie told to LeBrun regarding the purpose of the interview, as in Hanson, 237 F.3d at
964 (officers told suspect they wanted him to view photos of recent vandalism at an
abortion clinic, but actually sought to question the suspect about an arson attempt),
the authorities clearly employed a planned strategy to prevent LeBrun from realizing
the true nature of the interview until he was at the Highway Patrol Station.9 LeBrun
did not know, at the time of his consent to accompany the officers, that they were
going to question him about Muns’ disappearance and “therefore did not ‘voluntarily
acquiesce’ to the subsequent interrogation.” Id.


       The district court described the interview room as a “rectangular, windowless
room the dimensions of which are difficult to discern.” This finding is not clearly
erroneous based on our review of the video recording of the September 21, 2000,
interview. The walls of the room were covered in enlarged photos of scenes from the
U.S.S. Cacapon and from LeBrun’s life. No furniture separated LeBrun, who was
seated with his back to the wall in a straight chair, from Agents Grebas and Early,
who were seated approximately three feet from LeBrun on either side of him. LeBrun
was advised that he was subject to audio and video recording, and indeed, the
interview and LeBrun’s subsequent confession were videotaped by a camera stationed
behind an observance mirror in the room. Almost immediately, the agents began
telling LeBrun that they were positive he had killed Ensign Muns. They told him
they had evidence that would result in grand jury proceedings. Agent Early told
LeBrun, “I know you are responsible for Ensign Muns . . . I know that. We can show


9
    Prior to September 21, 2000, LeBrun had only dealt with Special Agent
Hughes of the NCIS. In his previous contacts with law enforcement, Agent
Hughes always contacted LeBrun ahead of time to arrange a time and place for an
interview.

                                         -10-
that.”10 Agent Grebas intimated that Agent Early was the one who believed an
interview should take place, whereas he thought, “I should be going to your work and
putting [sic] you in cuffs and taking you out.”11 The agents told LeBrun that the day
of the interview was the only day that he would have control over whether he kept his
house, his pregnant wife, his stepdaughter, and his job. They stated, “If you choose
to play hardball, then . . . we are going to criminal court.”12 Then, referencing a
potential media frenzy and the Jon-Benet Ramsey case, the agents told LeBrun that
Ensign Muns’ family was very wealthy and was prepared to take him to civil court
over the matter.


       In Stansbury, the Supreme Court held that “an officer’s evolving but
unarticulated suspicions do not affect the objective circumstances of an interrogation
or interview, and thus cannot affect the Miranda custody inquiry.” Stansbury, 511
U.S. at 323, 114 S. Ct. at 1529. Nonetheless, “[a]n officer’s knowledge or beliefs
may bear upon the custody issue if they are conveyed, by word or deed, to the
individual being questioned . . . . Those beliefs are relevant only to the extent they
would affect how a reasonable person in the position of the individual being
questioned would gauge the breadth of his or her ‘freedom of action.’” Id. at 325, 114
S. Ct. at 1529. Similarly, the tactic of lying to a suspect about the evidence police
have does not make a confession per se invalid, but can be considered in evaluating
the totality of the circumstances. See Frazier v. Cupp, 394 U.S. 731, 737-39, 89 S.
Ct. 1420, 1424, 22 L. Ed. 2d 684 (1969). We believe that a reasonable individual,
placed into the police-dominated environment of the interview room in this case, and
confronted with threats of criminal charges, civil lawsuits, and the loss of those
aspects of his life most important to him, would feel a substantial diminishment in his

10
     Interrogation Tr. at 6.
11
     Id. at 11.
12
     Id. at 13.

                                         -11-
freedom of action. Similarly, a reasonable person, told by authorities that they
possess “incontrovertible” evidence of criminal guilt, would unlikely feel free to
leave the interrogation. As stated in Hanson, “[t]he agents wanted a confession . . .
and it appears that they deliberately waited until they had the suspect in an
intimidating environment before they advised him of their true purpose for bringing
him to the station.” Hanson, 237 F.3d at 965.


        “Any interview of one suspected of a crime by a police officer will have
coercive aspects to it simply by virtue of the fact that the police officer is part of a law
enforcement system which may ultimately cause the suspect to be charged with a
crime.” Mathiason, 429 U.S. at 495, 97 S. Ct. at 714. Nonetheless, we have found
that “[a] strong presumption of impropriety attaches to any circumstances where this
Court detects the use of coercive interrogation techniques to obtain confessions.”
Griffin, 922 F.2d at 1351 (citing United States v. Carter, 884 F.2d 368, 371 (8th Cir.
1989)). The district court found that Agents Early and Grebas employed at least two
such coercive techniques: the “friendly-unfriendly” or “Mutt and Jeff” routine and the
“cast blame on the victim” tactic, both coercive police strategies discussed in
Miranda, 384 U.S. at 452, 86 S. Ct. at 1616. Despite the appellant’s objection, we
cannot say that the district court committed clear error in finding that these techniques
were used. Indeed, evidence of the “Mutt and Jeff” routine is evident in the videotape
of the interrogation. Agent Early generally maintained a conversational, friendly tone
of voice while Agent Grebas would often assume an unfriendly, antagonistic
demeanor. Agent Early repeatedly assured LeBrun that he only wanted to “get to the
truth about what happened.”13 Agent Grebas, on the other hand, repeatedly told
LeBrun that he was against the interview and believed that LeBrun should be arrested
for premeditated murder. While not used heavily, a finding that the “blame the




13
     Interrogation Tr. at 7

                                           -12-
victim” tactic was used is also supported by the videotape of the interrogation.14 In
addition to these tactics, the record is full of instances where the agents attempted to
“bond” with LeBrun,15 to appeal to his loyalty to his family, and to threaten his social
and financial demise if he didn’t cooperate. We believe these factors weigh heavily
in favor of a finding of custody.


       Also relevant to our inquiry is the length and tenor of the interrogation. While
Miranda was concerned primarily with lengthy “marathon” interrogations, custody
may be found in relatively brief interrogations where the questioning is of a sort
where “the detainee is aware that questioning will continue until he provides his
interrogators the answers they seek.” Griffin, 922 F.2d at 1348 (citing Berkemer, 468
U.S. at 439, 1349 S. Ct. at 3149). In this case, Agents Early and Grebas told LeBrun
on five separate occasions that he could go home at the conclusion of the interview.
At one point, Agent Early said, “You know what? When you say, ‘You know what
Special Agent Early, I killed him.’ You know what. We can stop. Because you know
why, you can say this, it wasn’t premeditated. It was spontaneous. That’s all you
need to say and we are done.”16 We believe that a reasonable person in LeBrun’s
position would believe that questioning was going to continue until the NCIS agents
obtained the information they sought.



14
    Agent Grebas stated, “It’s under the little thing of why, that is why is it
premeditated. Think two weeks out of the box. You know, I didn’t like Andy
Muns and you didn’t like Andy Muns. Why? Because you were that person on
the ship. You ran that disbursing office. You had done your time and then in
comes this boot officer. You know what, he was a snotty-nosed kid who probably
didn’t deserve to wear an officer’s uniform.” Interrogation Tr. at 16.
15
     For example, Agent Grebas described to LeBrun how he had a killed a man in
the line of duty. See Interrogation Tr. at 19-20.
16
     Interrogation Tr. at 16.

                                         -13-
       The appellant reminds us repeatedly that, without LeBrun’s confession, there
is insufficient evidence to proceed with prosecution in this case. While this may
appear to be an unjust result, we are reminded of the words of former Chief Judge
Richard S. Arnold in Williams v. Nix, 700 F.2d 1164 (8th Cir. 1983), rev’d, 467 U.S.
431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984):
      A system of law that not only makes certain conduct criminal, but also
      lays down rules for the conduct of the authorities, often becomes
      complex in its application to individual cases, and will from time to time
      produce imperfect results, especially if one’s attention is confined to the
      particular case at bar. Some criminals do go free because of the
      necessity of keeping government and its servants in their place. That is
      one of the costs of having and enforcing a Bill of Rights. This country
      is built on the assumption that the cost is worth paying, and that in the
      long run we are all both freer and safer if the Constitution is strictly
      enforced.
Id. at 1173. Weighing against a finding of custody in this case are simply the facts
that LeBrun was advised he was free to leave and was not arrested at the conclusion
of the interrogation. However, we believe that the record reflects restrained freedom
of movement,17 less than voluntary acquiescence to questioning, the employment of
deceptive stratagems by law enforcement, and a police-dominated atmosphere. Based
on the totality of the circumstances, we believe that a reasonable person in LeBrun’s
position would have felt a substantial restraint on his freedom to leave the
interrogation. Thus, LeBrun was in custody at the time of his initial confession and
should have been provided with Miranda warnings.
                                         IV.



17
    While Agent Early’s “escort” of LeBrun to the restroom and outside took
place after LeBrun’s initial confession, they are still demonstrative of the overall
tone of the interrogation. While not necessary to our finding that LeBrun’s
freedom was restricted, this evidence lends additional support to our finding that
LeBrun was in custody.

                                         -14-
       Even were we to find that LeBrun was not in custody for purposes of Miranda,
we would still affirm the decision of the district court because LeBrun’s confession
was involuntary. The voluntariness of a confession is a legal inquiry subject to
plenary review by the appellate courts. Miller v. Fenton, 474 U.S. 104, 114, 106 S.
Ct. 445, 452, 88 L. Ed. 2d 405 (1985). In determining whether a confession was
voluntary we must examine the entire record for evidence that the statement was
given under such circumstances which would indicate that the defendant was coerced
or his will overborne. Davis v. North Carolina, 384 U.S. 737, 742, 86 S.Ct. 1761,
1764, 16 L. Ed. 2d 895 (1966); see also Rachlin v. United States, 723 F.2d 1373,
1377 (8th Cir. 1983). In this analysis the court employs a flexible totality of the
circumstances approach, considering the specific interrogation tactics employed, the
details of the interrogation, and the characteristics of the accused. Rachlin, 723 F.2d
at 1377. Custodial statements are presumed involuntary and the government must
overcome the presumption by a preponderance of the evidence. Tippitt v. Lockhart,
859 F.2d 595, 597 (8th Cir. 1988), cert. denied, 490 U.S. 1100, 109 S. Ct. 2452, 104
L. Ed. 2d 1007 (1989).


       LeBrun, at the time of the September 21, 2000, interview, was in his mid-fifties
and had recently recovered from cancer. He had completed college and attended one
year of law school. He was employed as a project manager for a real-estate sales
company. He was married with a stepdaughter and another child on the way. He had
been interviewed by law enforcement regarding Muns’ disappearance several times
less than a year prior to his confession. On three of those occasions, LeBrun was
advised of his Miranda rights. LeBrun had no other contact with law enforcement
prior to 1999.


      “Numerous cases have held that questioning tactics such as a raised voice,
deception, or a sympathetic attitude on the part of the interrogator will not render a
confession involuntary unless the overall impact of the interrogation caused the

                                         -15-
defendant's will to be overborne." Jenner v. Smith, 982 F.2d 329, 334 (8th Cir. 1993).
Indeed, “‘[T]here is nothing inherently wrong with efforts to create a favorable
climate for confession.’” Id. (citing Hawkins v. Lynaugh, 844 F.2d 1132, 1140 (5th
Cir. 1988, cert. denied, 488 U.S. 900, 109 S. Ct. 247, 102 L.Ed.2d 236 (1988)). In
this case, Agents Early and Grebas lied about the evidence against LeBrun. They
told him they possessed “incontrovertible” evidence, including eyewitness testimony,
that he had killed Ensign Muns. They told him that if he resisted confessing, he
would be subject to charges in Anchorage, Alaska. The agents played on LeBrun’s
specific concerns over his health and his pregnant wife by telling him that a criminal
trial would ruin his family’s good name and his family’s financial resources would
be drained from the expense of defending himself in Alaska. Additionally, the agents
repeatedly told LeBrun that if he confessed to a “spontaneous” act, he could not be
prosecuted because the statute of limitations had expired. Finally, the agents told
LeBrun that Muns’ sister was waiting in the next room and that she was willing to
forgive him if he admitted to spontaneously killing Muns.


       We believe that separately, lies and strategies such as these would not be
sufficiently coercive to cause an individual in the position of LeBrun to have his will
overborne. However, when viewed as a whole, it appears that the entire atmosphere
of the interrogation was police-dominated, highly coercive, and designed to elicit a
confession in any way possible. We are particularly troubled by the repeated
statements to LeBrun to the effect that he could only be prosecuted for a premeditated
murder. Agents continually intimated to LeBrun that they had a great deal of control
over what charges would be brought against him. Agents Early and Grebas told
LeBrun that if he confessed to spontaneously killing Muns, he would not be
prosecuted. Appellant urges us to find that LeBrun simply misunderstood the legal
consequences of his confession, through no fault of the interrogating officers, and that
his confession should be held voluntary. See Winfrey v. Wyrick, 8367 F.2d 406 (8th
Cir. 1987) (defendant’s murder confession voluntary even though he mistakenly


                                         -16-
believed that an element of the charge would be negated if the crime was accidental);
United States v. Larry, 126 F.3d 1077 (8th Cir. 1997) (promise not to prosecute for
drive-by shooting did not render confession to being a felon-in possession of a
firearm involuntary).


       Viewing the interrogation as a whole, however, it appears clear that a
reasonable person in LeBrun’s position would have perceived the statements of the
agents as a promise of nonprosecution if LeBrun confessed to a spontaneous act.
This is distinguishable from cases such as Larry, where a defendant is promised that
he will not be charged for the crime under investigation, but admits to facts
comprising a distinct and separate crime. After LeBrun told Agents Early and Grebas
that he believed there was no statute of limitations on homicide, Agent Early
responded, “It depends on how the act was completed . . . premeditation or not.” It is
clear from reading the transcript and viewing the videotape of the interrogation that
Agents Grebas and Early were attempting to get LeBrun to admit that Muns caught
him stealing money from the disbursement office safe and that LeBrun killed Muns
to avoid getting caught. Admission of those facts constitutes felony murder. Yet,
Agents Early and Grebas clearly led LeBrun to believe that there were only two
possible types of murder for which he could be charged–premeditated or spontaneous.
The following colloquy is demonstrative:
             GREBAS: And if you will be man enough and stand up to the
                     plate and say, You know what guys, it was
                     spontaneous.” We are on the phone saying we got
                     a problem with the statute of limitation. It’s
                     possible, beyond possible; you won’t be prosecuted
                     at all. And I want to throw-up when I say that, but
                     I will–that’s my word to you.
             LEBRUN: Right
             GREBAS: Special Agent Early?
             EARLY:       Absolutely.


                                        -17-
             LEBRUN: What’s the statute of limitation?
             GREBAS: There is no second-degree murder.
             EARLY:        It’s five years from the time of the incident. It’s
                           called “manslaughter” in the federal system.
             LEBRUN: Okay.
             EARLY:        Tell the truth.
             GREBAS: Now, it was spontaneous; is that right, Michael? It
                     was, the choice was, either I was going to brig,
                     either I was going to the brig, or Andy Muns had to
                     die and that was a selfish act. That’s the first step in
                     this. I am ready to go to the phone.
             LEBRUN: So, am I hearing that I won’t be prosecuted?
             GREBAS: That’s what you are hearing.
             LEBRUN: Is that what I am hearing?
             GREBAS        That’s what you are hearing.
             EARLY:        If it’s spontaneous and that’s the truth, you will not
                           be prosecuted.
             GREBAS: That’s absolutely right.
             LEBRUN: I am here to tell you there was no premeditation.
             EARLY:        All right.
             LEBRUN: It was spontaneous.18


       Appellant contends that Agents Early and Grebas used the term “spontaneous”
interchangeably with the specific legal term, manslaughter. However, the only
mention of “manslaughter” in the transcript of the interrogation occurs on page
twenty-one, whereas the agents discuss spontaneous versus premeditation more than
a dozen times before the singular mention of manslaughter. Viewing the entire tenor
of the interrogation, the attempt to qualify the term spontaneous seems like nothing


18
     Interrogation Tr. at 20-21.

                                             -18-
more than a desperate attempt to make the record appear as the agents meant it to
appear, rather than how it actually did. Such trickery, coupled with the coercive
tactics outlined above, lead us to believe that LeBrun’s confession was involuntary
in light of the totality of the circumstances.
                                         V.


       The Government concedes that a finding that LeBrun’s initial confession to
Agents Early and Grebas was illegal would necessitate a finding that LeBrun’s
second confession to Muns’ sister was “fruit of the poisonous tree,” pursuant to
Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441
(1963). Because we find that LeBrun was in custody at the time of his initial
confession, and because that confession was involuntary, we also find that LeBrun’s
statement to Muns’ sister was illegally obtained. We, therefore, affirm the judgment
of the district court.


HANSEN, Circuit Judge, dissenting.


       I do not agree that LeBrun was "in custody" within the meaning of Miranda v.
Arizona, 384 U.S. 436 (1966), at the time he confessed to killing a superior officer
and to disposing of the body in a tank of caustic fuel oil. Nor do I agree that LeBrun
was "in custody" at the time he voluntarily reenacted the homicide, demonstrating
how he strangled Ensign Muns while smashing his head against the deck of the
disbursing office. Nor do I agree that LeBrun was "in custody" at the time he
apologized to Muns' sister for killing her brother. Finally, I do not agree that
LeBrun's confessions to and reenactment of Muns' killing were the product of
compulsion. Accordingly, I respectfully dissent.




                                        -19-
       I find the court's attempt to distinguish this case from Oregon v. Mathiason,
429 U.S. 492 (1977), unpersuasive, and I conclude that Mathiason is on all-fours with
this case. The court first notes that the officers transported LeBrun thirteen miles to
the Highway Patrol Station and that LeBrun was therefore dependent on the
authorities for transportation, whereas Mathiason walked only a short distance to the
state patrol office thereby rendering him independent of the authorities. Id. at 495.
In my view, the distinction is unavailing. The court ignores the fact that LeBrun
carried his cellular phone in his pocket during the entire interview. He was free to
make and receive calls during the entire interview. The videotape of the interview
shows that LeBrun telephoned his wife from the Highway Patrol Station during the
course of the interview. Thus, unlike the defendant in United States v. Hanson, 237
F.3d 961, 965 (8th Cir. 2001) (finding "custody" because, among other things, the
defendant was dependent on authorities for transportation back to his residence),
LeBrun was not dependent upon the authorities for transportation. LeBrun could
have easily arranged for alternative transportation by calling a coworker, a friend, a
relative, his spouse, or even a taxicab.


       The court also recites facts from which it concludes that this interview was
conducted in a police-dominated environment and in a coercive manner. Specifically,
the court notes the small dimensions of the interview room, the agents' admittedly
coercive interview tactics, and the agents' misrepresentation of the evidence they had
collected against LeBrun. As the majority correctly notes, however, "a noncustodial
situation is not converted to one in which Miranda applies simply because . . . the
questioning took place in a 'coercive environment.'" Mathiason, 429 U.S. at 495.
Indeed, "[a]ny interview of one suspected of a crime by a police officer will have
coercive aspects to it, simply by virtue of the fact that the police officer is part of a
law enforcement system which may ultimately cause the suspect to be charged with
a crime." Id. The fact that the atmosphere was police-dominated is unsurprising, as
the interview took place in a highway patrol station. Also, the fact that the agents


                                          -20-
exaggerated the amount of evidence that had been collected against LeBrun bears
little on the custody issue. Id. at 495-96 (stating that fact that officer lied about
finding defendant's fingerprints at the scene of the crime had "nothing to do with
whether respondent was in custody for purposes of the Miranda rule"). Thus, the
facts upon which the court relies do not distinguish this case from Mathiason; rather,
the Mathiason Court considered analogous facts and concluded that they did not
convert a noncustodial interview into a custodial interrogation. Cf. Mathiason, 429
U.S. at 494 (recognizing that the interview took place behind closed doors, that the
officer told the defendant that he was a suspect, and that the officer falsely told the
defendant that the police had evidence against him).


       In addition, the court overstates the coercive aspects of this interview in an
attempt to distinguish Mathiason. LeBrun was never physically restrained. He was
never placed in handcuffs. Unlike the defendant in Hanson, LeBrun was transported
to the Highway Patrol Station in the front seat of an unlocked patrol vehicle. As
aforementioned, LeBrun had his cellular phone with him during the interview, and
he called his wife from the interview room. While the mere possession of a cellular
phone without more will not transform a custodial interrogation into a noncustodial
one, it is relevant to the question of whether the interview was coercive and whether
a reasonable person in the same circumstances would feel restrained. See United
States v. Unser, 165 F.3d 755, 766 (10th Cir.) (noting that use of a cellular phone
during an interview is a factor supporting a finding of no custody), cert. denied, 528
U.S. 809 (1999). The cellular phone provided LeBrun a line of communication
between himself and the outside world. The possession of a cellular phone mitigates
the incommunicado nature of interrogations with which the Miranda Court was
concerned and dulls the psychological pressure associated with being isolated in an
interview room.




                                         -21-
       In its custody analysis, the court simply fails to consider that LeBrun's age and
experience militate against a finding of "custody." In our objective "custody"
analysis, the relevant inquiry is not whether any random reasonable person would
have determined that he was "in custody," but whether a reasonable person in the
defendant's position would have considered his freedom of action restricted to the
degree associated with a formal arrest. Feltrop v. Bowersox, 91 F.3d 1178, 1181 (8th
Cir. 1996), cert. denied, 520 U.S. 1242 (1997). LeBrun's age, work experience,
education, specifically his legal training, and his past experience with NCIS agents
militate against a finding of custody. See United States v. Rorex, 737 F.2d 753, 756
(8th Cir. 1984) (stating that the age and experience of the interviewee is a relevant
factor in the custody determination). LeBrun is in his mid-fifties. He is a military
veteran and is gainfully employed as a manager in a real estate office. He has a
college education and has completed one year of law school. In short, LeBrun is an
educated, somewhat sophisticated individual. More importantly, LeBrun had past
experience and dealings with NCIS investigators. NCIS agents interviewed LeBrun
on four different occasions. Significantly, in none of the prior interviews was LeBrun
placed under arrest. Thus, on this occasion, after learning that the interviewers were
NCIS agents, LeBrun could draw upon his experiences with other NCIS agents to
conclude that he likely would not be arrested here. LeBrun would have no reason to
disbelieve the agents when they explicitly informed him before entering the Highway
Patrol Station that he was not under arrest and that he was free to leave at any time.
LeBrun also would have no reason to disbelieve the agents when they told him on
three separate occasions during the interview that he was free to leave and that he
could go home. In fact, the district court explicitly found that at the start of the
interview LeBrun believed he could terminate the interview and leave if he wanted
to. (R. at 62.) The fact that Agents Early and Grebas did not arrest LeBrun after the
interview supports the conclusion that LeBrun was not "in custody." See United
States v. Sutera, 933 F.3d 641, 647 (8th Cir. 1991) (stating that it was a "very
important" fact that the officers did not contemplate arresting the defendant).



                                         -22-
       Viewing the totality of the circumstances, I conclude that a reasonable, college
educated, and legally trained person who has had prior experience with the practice
and procedure of a particular law enforcement organization, who willingly agreed to
be interviewed, who was specifically told on four different occasions during the
course of the interview that he was not under arrest or could go home, and who could
easily facilitate transportation from the interview site via cellular phone would not
have perceived that his freedom of action was restrained to the degree associated with
formal arrest. I conclude that this case is controlled by Mathiason in all relevant
respects and, accordingly, would reverse the judgment of the district court.


      Likewise, I do not agree with the conclusion that LeBrun's incriminating
statements were compelled. The appropriate test for determining whether a
confession was involuntarily made is whether the totality of the circumstances
surrounding the confession indicates that "the defendant's will was overborne and his
capacity for self-determination critically impaired." United States v. Astello, 241
F.3d 965, 967 (8th Cir.), cert. denied, 533 U.S. 962 (2001). This requires that we
look at "both the conduct of agents and [the defendant's] capacity to resist pressure
to confess." Id.


       Neither Agent Grebas nor Agent Early was armed during the interview. (R. at
62.) The district court found that the agents never shouted at LeBrun (R. at 61) or
physically threatened him (R. at 68). Review of the interview videotape demonstrates
that this finding is not clearly erroneous. The government concedes, however, that
it used psychological coercion to facilitate a confession. While some of the
psychological pressure employed in this case was creative, much of it was standard
interview technique, and the government's use of such tactics does not render a
confession involuntary per se. For example, we have previously held that tactics such
as subjecting a suspect to psychological pressure, making false promises, playing on
a suspect's emotions, and using his family against him did not render a confession

                                         -23-
involuntary. Astello, 241 F.3d at 967-68. The court correctly recognizes that the type
of psychological pressure Agents Grebas and Early exerted on LeBrun here did not
alone render his confession involuntary. The court concludes, however, that these
tactics, when coupled with the agents' statements concerning nonprosecution,
rendered his confession involuntary. I most respectfully disagree.


       It is unclear if any promise was even made here. The transcript demonstrates
that Agent Grebas qualified his statements, stating that it was only "possible" that
LeBrun would not be prosecuted. (Tr. at 20-21.) In addition, it is unclear what the
promise–if any–was. It is unclear whether the agents told LeBrun that he could not
be prosecuted for murder or whether the agents simply told LeBrun that he could not
be prosecuted for "spontaneous murder." Finally, the district court explicitly rejected
the magistrate judge's findings regarding the alleged promises not to prosecute. The
district court found only that "LeBrun believed he would not be prosecuted if he
confessed to a 'spontaneous' murder." (R. at 83-84.) The district court did "not make
any findings as to what–if any–promise was actually made, or what the legal effect
of any promise [was]." (Id.) Thus, our court relies upon facts the district court
specifically declined to find. Applying the facts as actually found by the district
court, I conclude that LeBrun's confession was not compelled because a defendant's
mistaken belief that he could not be prosecuted does not render a confession
involuntary. See United States v. Kilgore, 58 F.3d 350, 353 (8th Cir. 1995) (stating
that defendant's mistaken belief that he had been promised leniency would not render
confession involuntary); Winfrey v. Wyrick, 836 F.2d 406, 411-12 (8th Cir. 1997)
(concluding that defendant's murder confession was voluntary even though defendant
was encouraged to talk because of erroneous belief that if the shooting was accidental
it would negate an element of the offense), cert. denied, 488 U.S. 833 (1988).


      Moreover, even assuming that a reasonable person would view the agents'
statements as a promise, a promise made by law enforcement officers is only one

                                         -24-
relevant consideration in assessing police conduct and does not render a confession
involuntary per se. See Simmons v. Bowersox, 235 F.3d 1124, 1133 (8th Cir. 2001),
cert. denied, 122 S. Ct. 280 (2001); see also Tippitt v. Lockhart, 859 F.2d 595, 598
(8th Cir. 1988) (holding that a custodial statement given in exchange for a promise
that the defendant would not be charged with capital felony murder "was the product
of his rational and voluntary decision and that the officers' promise did not coerce or
overbear his free will"), cert. denied, 490 U.S. 1100 (1989). Thus, in United States
v. Larry, 126 F.3d 1077 (8th Cir. 1997), we held that the defendant's statement
implicating himself as being a felon in possession of ammunition was voluntary even
though it was induced by a promise that the defendant would not be prosecuted for
a separate offense involving a drive-by shooting. Id. at 1079. After viewing the
interview videotape, I do not seriously doubt that the discussions concerning
nonprosecution were the but-for causes of LeBrun's confession. That is, LeBrun
might not have confessed absent the discussion not to prosecute. The Court has
indicated, however, that in the context of determining the voluntariness of a
confession, a but-for type analysis is inadequate. Schneckloth v. Bustamonte, 412
U.S. 218, 224 (1973) ("Under such a test, virtually no statement would be voluntary
because very few people give incriminating statements in the absence of official
action of some kind."). Instead, courts must look at the totality of the circumstances
surrounding the confession and balance the complex of values implicated in
questioning a subject. Even accounting for any potentially coercive impact that
Agent Early's and Agent Grebas's statements might have had on LeBrun, I conclude
that his confession was freely and voluntarily made and was not the product of
unconstitutional compulsion.


      I place substantial weight on the fact that LeBrun confessed after a mere thirty-
three minutes of conversation with the agents. Thus, this is not a situation where the
agents wore down a defendant's will with persistent questioning over a considerable
length of time. I also place significant weight on the fact that LeBrun testified that


                                         -25-
he had a subjective understanding of his Miranda rights at the time of the interview.
(R. at 61.) See Simmons, 235 F.3d at 1133-34 (stating that a particularly compelling
fact militating in favor of finding a voluntary confession was that defendant
understood his rights). I also place substantial weight on the fact that LeBrun was a
sophisticated individual with legal training. As we have noted, "one of the key
concerns in judging whether confessions were involuntary, or the product of coercion,
[is] the intelligence, mental state, or any other factors possessed by the defendant that
might make him particularly suggestible, and susceptible to having his will
overborne." Wilson v. Lawrence County, 260 F.3d 946, 952 (8th Cir. 2001).


       LeBrun did not display any unique sensitivity that would indicate the police
might overbear his will. LeBrun had met with NCIS investigators on four prior
occasions. The videotape demonstrates that LeBrun was aware of his surroundings
and the circumstances confronting him. In fact, as LeBrun and the agents discuss the
potential statute of limitations problems, LeBrun becomes more animated and much
more interested in the interview. After watching the videotape, I conclude that
LeBrun is an intelligent, calculating person who erroneously perceived a potential
"out" or loophole in the prosecution's case and tried to take advantage of it by
confessing to "spontaneous" murder. Whatever his motivation, we rarely conclude,
absent physical coercion, that a confession was made against a person's free will
unless the person is of extremely low intelligence or otherwise impaired. Compare
Wilson, 260 F.3d at 953-54 (affirming denial of qualified immunity on coerced
confession claim where defendant was mentally handicapped), with Astello, 241 F.3d
at 968 (recognizing fact that defendant had completed eleventh grade and was
generally mature supported a finding that statement was voluntary); Simmons, 235
F.3d at 1133-34 (finding confession of juvenile defendant with full scale IQ of 88 was
voluntary where officers interrogated him for over two hours, threatened him with the
death penalty, and lied about the evidence against him); Tippitt, 859 F.2d at 598
(concluding that confession of defendant with eleventh grade education was


                                          -26-
voluntary even though it was given in exchange for promise not to pursue capital
sentence); Winfrey, 836 F.2d at 408 (finding confession voluntary where defendant
had dull-normal IQ and mental age of 14 or 15), 411 (collecting cases). The court's
decision departs from the general trend of our cases. Accordingly, I respectfully
dissent.


      A true copy.

            Attest:

            CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




                                       -27-
