                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-23-2002

Brosius v. Warden Lewisburg
Precedential or Non-Precedential:

Docket 1-1102




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Filed January 23, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1102

MICHAEL TODD BROSIUS,

       Appellant

v.

WARDEN, UNITED STATES PENITENTIARY,
LEWISBURG, PA

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

(Dist. Court No. 99-cv-01387)

District Court Judge: William W. Caldwell

Argued September 7, 2001

Before: BECKER, Chief Judge, ALITO, and
BARRY, Circuit Judges.

(Opinion Filed: January 23, 2002)

       PAUL M. POHL (Argued)
       Jones, Day, Reavis & Pogue
       500 Grant Street, Suite 3100
       Pittsburgh, PA 15219

       Counsel for Appellant
       MAJOR DAN BROOKHART (Argued)
       Department of the Army
       Office of the Judge Advocate General
       Government Appellate Division
       901 N. Stuart Street
       Arlington, VA 22203

       Counsel for Appellee

OPINION OF THE COURT

ALITO, Circuit Judge:

This is an appeal by Michael Todd Brosius from an order
dismissing his petition for a writ of habeas corpus. Brosius
was convicted of unpremeditated murder following a
general court martial, and he is serving a sentence of
imprisonment. His conviction was affirmed by the Army
Court of Military Review, see United States v. Brosius, 37
M.J. 652 (A.C.M.R. 1993), and the Court of Military Appeals
granted review but summarily affirmed without opinion.
See United States v. Brosius, 39 M.J. 378 (C.M.A. 1994).
Brosius, who is imprisoned at the United States
Penitentiary in Lewisburg, Pennsylvania, then filed a
petition for a writ of habeas corpus under 28 U.S.C.S 2241
in the United States District Court for the Middle District of
Pennsylvania. The District Court denied his petition,
Brosius v. Warden, 125 F. Supp. 2d 681 (M.D.Pa. 2000),
and this appeal followed.

I.

At approximately 4:40 a.m. on June 2, 1990, two
sergeants in the United States Army found Private First
Class Tammy Ivon near death in the parking lot adjacent to
the enlisted service members' barracks at the United States
Army Airfield in Giebelstadt, Germany. When Ivon was
found, her legs were protruding from under a pickup truck,
and her jeans had been pulled down to her ankles. One of
the sergeants noticed a man whom he identified as Brosius
staring at him from a nearby road. After several seconds,

                               2
Brosius, who had been a close friend of Ivon's, walked
away. A short time later, Ivon died.

An autopsy revealed that Ivon had been stabbed 11
times, four times in the chest, five times in the abdomen,
and once near each eye. Ivon's car was found parked next
to the pickup, and the back seat of the car was stained
with blood. The sign-in log for a gate on the base showed
that Ivon's car had returned at 2:30 a.m. with two
occupants. A witness who had passed Ivon's car at about
3:00 a.m. stated that the windows were fogged, he heard a
grunt or groan coming from inside, and he thought that the
occupants were having sex.

Numerous witnesses described Brosius's behavior during
the hours after Ivon's body was found. A witness who saw
him at 7:25 a.m. described him as shocked and dazed. At
7:30 a.m., he told another witness that he had just come
from working out in the gym although the gym was closed
at the time. He told another witness that a girl who had
given him a ride home two hours earlier was dead and that
he suspected her boyfriend. Brosius then reportedly
threatened to kill the boyfriend. A short time later, when
another witness asked Brosius if he had heard about Ivon's
death, Brosius said that he had not. Brosius then went to
the laundromat and told a witness who later testified for
the prosecution that Ivon had given him a ride home that
night and that he might have been the last person to see
her alive. He said that he had heard that she had been
stabbed 11 times. He told another witness who testified for
the defense that a third person had accompanied Ivon and
him when they drove back to the base. At 11:10 a.m., he
awakened his roommate, screaming that Ivon's boyfriend
had killed her.

Word reached Brosius's first sergeant that Brosius had
been with the victim on the night of her murder, and the
first sergeant then provided this information to agents from
the Criminal Investigation Division ("CID"). Brosius was
called to the orderly room, and Special Agents Douglas
Allen and Tyrone Robinson took Brosius into the first
sergeant's office and spoke with him. Brosius stated that on
the night of the murder, Ivon had driven another soldier
and him back to the base from a local club. When Special

                                3
Agent Allen asked the identity of the third person, Brosius
replied that he did not wish to say anything about it.
According to Special Agent Allen, Brosius then requested to
have a lawyer, his first sergeant, or some other third party
present to witness his statement. According to Brosius, he
asked to have a lawyer present, but Brosius admitted that
it was "possible" that he might have also mentioned his first
sergeant. Special Agent Allen told Brosius that there were
lawyers at the CID Headquarters ("the River Building") in
Wuerzburg and that if he wanted to speak to a lawyer or
someone else, he should go there. Sergeant Pickett,
Brosius's section sergeant, drove him to the River Building.
Sergeant Pickett and Brosius were acquaintances. App. 75.

At the River Building, Special Agent Mark Nash
questioned Brosius without administering any warning of
rights. Special Agent Nash told Brosius that the victim's
boyfriend was the main suspect and that if Brosius"was
worried about rights or anything being violated, if you start
to say anything that we think would be incriminating
against you, we would stop you and advise you of your
rights." App. 19-20. Special Agent Nash told Brosius that
Captain Harper Ewing would be available to witness the
interview. Captain Ewing was the prosecutor assigned to
the case.

When Captain Ewing arrived, Brosius recognized him as
an attorney who had represented him in an earlier civil
matter. Captain Ewing asked Brosius some questions about
the prior representation in order to ascertain whether there
was a conflict that would prevent him from prosecuting the
case. Special Agent Nash and Captain Ewing both told
Brosius that Captain Ewing was a prosecutor and was
"working with the cops," but Brosius did not voice any
objection. Captain Ewing acknowledged, however, that
Brosius said something to the effect that he wanted an
attorney present because he did not trust the police and
feared that they would twist his words. App. 43-44. Captain
Ewing testified that he thought that Brosius was simply
requesting someone to record his words accurately and was
not requesting legal representation, and Special Agent Nash
testified that Captain Ewing was present at the interview
for that purpose. Brosius did not ask Captain Ewing any

                               4
questions or request legal advice, but he testified at trial
that he thought that Captain Ewing was his lawyer because
Captain Ewing had represented him in an earlier matter
and was present while he was being questioned.

At the end of the interview, Brosius signed a written
statement. The chief points stated were that: 1) Ivon had
given Brosius a ride back to the base from the club; 2)
another male soldier, whom he described, had accompanied
them; 3) Ivon had a troubled relationship with her
boyfriend; and 4) Brosius had last seen her at about 2:55
a.m. Brosius's statement seems to have added little if
anything of substance to what he had told other witnesses
during the hours immediately after Ivon's body was
discovered. The CID agents also took the clothing that
Brosius had worn on the night of the murder, but it
apparently did not yield any incriminating evidence. After
the interview, Brosius returned to his unit.

Brosius returned for further questioning on June 4 and
5. At this time, he was warned of his rights under Miranda
v. Arizona, 384 U.S. 436 (1966), and Article 31 of the
Uniform Code of Military Justice ("UCMJ"), 10 U.S.C. S 83.
After receiving these warnings, Brosius waived his rights
and eventually confessed to the murder. He said that he
had returned to the base with Ivon and that no one else
was in the car. When they reached the parking lot, he
stated, they started to have intercourse, but he realized
that this "wasn't right" because she was "like a sister" to
him. He stated that he stabbed her in the chest and
stomach and then, because she was looking at him, in the
eyes. He said that he stabbed her about nine times. At the
end of the confession, however, he stated: "I don't believe I
did it and if I did I want help. I feel like I falsified the whole
statement."

II.

The degree to which a federal habeas court may consider
claims of errors committed in a military trial has long been
the subject of controversy and remains unclear. Nearly 50
years after it was decided, the Supreme Court's decision in
Burns v. Wilson, 346 U.S. 137 (1953), is still the leading

                                5
authority. In Burns, two soldiers were tried by court
martial, found guilty of murder and rape, and sentenced to
death. They filed habeas petitions claiming that they had
been denied due process of law. Some of the claims appear
to have presented pure questions of fact (e.g. , whether the
petitioners were beaten and denied food and sleep before
they confessed), while other claims presented either mixed
questions or questions of law (e.g., whether, on the
undisputed facts, their confessions were coerced). The
district court dismissed the petition, and the court of
appeals affirmed. Burns v. Lovett, 202 F.2d 335 (D.C. Cir.
1952). The court of appeals applied the following standard:

       [H]abeas will not lie to review questions raised and
       determined, or raisable and determinable, in the
       established military process, unless there has been
       such gross violation of constitutional rights as to deny
       the substance of a fair trial and, because of some
       exceptional circumstance, the petitioner has not been
       able to obtain adequate protection of that right in the
       military process.

Id. at 342. Applying this standard, the court reviewed each
of the petitioner's allegations and found that none
warranted relief.

The Supreme Court affirmed by a vote of 6 to 2 but
without a majority opinion. One member of the majority,
Justice Minton, took the position that the Court could do
no more than inquire whether the court martial had
jurisdiction. Burns, 346 U.S. at 146-48 (Minton, J.,
concurring in judgment). However, the plurality opinion
written by Chief Justice Vinson and joined by three other
Justices concluded that the Court's inquiry was somewhat
broader. The plurality stated that the petitioners'
allegations "were sufficient to depict fundamental
unfairness" and that the district court could have reviewed
these claims de novo if the military courts had"manifestly
refused to consider" them. Id. at 142. But because the
military courts had "heard petitioners out on every
significant allegation" and had "given fair consideration to
each of the[ir] claims," the plurality stated, the petitioners
had "failed to show that this military review was legally
inadequate." Id. at 144-46. The plurality added that

                               6
"although the Court of Appeals may have erred in
reweighing each item of relevant evidence in the trial
record, it certainly did not err in holding that there was no
need for a further hearing in the District Court." Id. at 146.
Justice Jackson, the sixth member of the majority,
concurred in the result without opinion. Id.

Justice Douglas, joined by Justice Black, dissented,
arguing that it was proper to determine in the habeas
proceeding whether, based on the undisputed facts, viz.,
that the petitioners had been held incommunicado and
repeatedly questioned over a period of five days, the
petitioners' confessions had been unconstitutionally
obtained.1 Burns, 346 U.S. at 154-55 (Douglas, J.,
dissenting).

Although the rule that emerges from Burns is far from
clear in all respects, it appears that a majority (the plurality
plus Justice Minton) held that in considering a
constitutional claim involving a pure question of law or a
mixed question of law and fact, a habeas court may not
exercise de novo review and may not go beyond considering
whether the military courts "dealt fully and fairly" with the
claim. Moreover, the plurality's treatment of the petitioners'
coerced confession claim suggests that full and fair
consideration was intended to mean no more than
"hear[ing]" the petitioners "out." Burns, 346 U.S. at 144.
Although it appears that the Judge Advocate General, then
the highest reviewing officer, had not addressed the
question whether the undisputed facts relating to the
confessions established a violation of the governing
Supreme Court precedent concerning unconstitutionally
coerced confessions,2 the plurality rejected the coerced
confession claim with the simple statement that"there was
exhaustive inquiry into the background of the confessions
-- with the taking of testimony from the persons most
concerned with the making of these statements." Id. at 145.
_________________________________________________________________

1. The ninth Justice, Justice Frankfurter, did not vote to affirm or
reverse but stated the Court should have put the case down for
reargument. 346 U.S. at 150.

2. See Burns, 346 U.S. at 154-55 (Douglas, J., dissenting).

                               7
Lower courts have had difficulty applying the Burns "full
and fair" test. The Tenth Circuit, which has the most
experience with habeas petitions filed by service members
due to the location of the Disciplinary Barracks at Ft.
Leavenworth, Kansas, has stated that "[t]he federal courts'
interpretation -- particularly this court's interpretation --
of the language in Burns has been anything but clear."
Dodson v. Zelez, 917 F.2d 1250, 1252 (10th Cir. 1990); see
also, e.g., Kauffman v. Sec. of the Air Force, 415 F.2d 991,
997 (D.C. Cir. 1969) (the test "has meant many things to
many courts").

Our court's treatment of Burns has also been far from
seamless. In United States ex rel. Thompson v. Parker, 399
F.2d 774 (3d Cir. 1968), we interpreted Burns narrowly.
The petitioner argued that his confession had been
obtained in violation of the Fifth Amendment and Article 31
of the UCMJ, but we rejected that argument with the terse
statement that "the district court, after determining that
the military courts had given due consideration to
petitioner's contentions, quite correctly refused to review
and reevaluate the facts surrounding petitioner's
allegations." Id. at 776.

By contrast, in Levy v. Parker, 478 F.2d 772 (3d Cir.
1973), rev'd on other grounds, 417 U.S. 733 (1974), we
seemingly read Burns more expansively. Levy, a military
doctor, was convicted by a general court martial of wilful
disobedience of the lawful command of a superior officer,
uttering public statements designed to promote disloyalty
and disaffection among the troops, and wrongfully and
dishonorably making intemperate, defamatory, provoking,
contemptuous, disrespectful, and disloyal statements to
other officers. See id. at 778. He contended that the articles
under which he was convicted were too vague to satisfy due
process. We suggested that a habeas court may examine de
novo those constitutional claims "not dependent upon any
evidentiary or factual construction." Id. at 783. The actual
holding of the case, however, was limited to claims related
to "the facial unconstitutionality of [a] statute" under which
a petitioner was charged. Id. Any broader reading of Levy
as requiring de novo review over all questions of law would
be inconsistent with Burns, in which a majority of the

                               8
Court (the plurality plus Justice Minton) applied a
deferential standard of review to the claims that, on the
undisputed facts, the habeas petitioners' constitutional
rights were violated. See Burns, 346 U.S. at 154 (Douglas,
J., dissenting) (arguing that "the undisputed facts in [the]
case ma[de] a prima facie case that [the Supreme Court's]
rule on coerced confessions expressed in Watts v. Indiana,
388 U.S. 49, was violated").

In the present case, we find it unnecessary to attempt
any further explication of Burns. Whatever Burns means,
we have no doubt that at least absent a challenge to the
constitutionality of the statute under which the defendant
was convicted, such as that raised in Levy, our inquiry in
a military habeas case may not go further than our inquiry
in a state habeas case. See Burns, 346 U.S. at 142 ("In
military habeas corpus cases, even more than in state
habeas corpus cases, it would be in disregard of the
statutory scheme if the federal civil courts failed to take
account of the prior proceedings . . .") (emphasis added).
Thus, we will assume -- but solely for the sake of argument
-- that we may review determinations made by the military
courts in this case as if they were determinations made by
state courts. Accordingly, we will assume that 28 U.S.C.
S 2254(e)(1) applies to findings of historical fact made by
the military courts. Under this provision, "a determination
of a factual issue made by a State court" is"presumed to
be correct," and a habeas petitioner has "the burden of
rebutting the presumption of correctness by clear and
convincing evidence." In considering other determinations
made by the military courts, we will assume that 28 U.S.C.
S 2254(d) applies. Under this provision,

       [a]n application for a writ of habeas corpus on behalf of
       a person in custody pursuant to the judgment of a
       State court shall not be granted with respect to any
       claim that was adjudicated on the merits in State court
       proceedings unless the adjudication of the claim--

       (1) resulted in a decision that was contrary to, or
       involved an unreasonable application of, clearly
       established Federal law, as determined by the Supreme
       Court of the United States; or

                               9
       (2) resulted in a decision that was based on an
       unreasonable determination of the facts in light of the
       evidence presented in the State court proceeding.

See also Williams v. Taylor, 529 U.S. 362 (2000); Matteo v.
Superintendent, SCI Albion, 171 F.3d 877, 891 (3d Cir.
1999) (en banc).

III.

Brosius argues that his conviction must be reversed
because, prior to his two interviews on June 2, he was not
given the warnings prescribed by Miranda or Article 31(b) of
the Uniform Code of Military Justice, 10 U.S.C.S 831(b).3
Article 31(b) differs from Miranda in that it requires
warnings whenever a service member is "suspected of an
offense" and is being interrogated. It may thus apply in
situations in which a service member is not in "custody."
See United States v. Baird, 851 F.2d 376, 383 (D.C. Cir.
1988). We will discuss Miranda and Article 31(b) separately.

A.

In Miranda, the Supreme Court held that warnings
must be administered before a person is subjected to
"custodial interrogation," i.e., "questioning initiated by law
enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in
any significant way." 384 U.S. at 444 (footnote omitted). In
this case, the Army Court of Military Review concluded that
Brosius was not in "custody" when he was interviewed on
June 2, and the court credited testimony that Brosius
"voluntarily appeared before [the CID agents] as a friend of
PFC Ivon wishing to provide them with information that
might lead to the apprehension of her killer." 37 M.J. at
_________________________________________________________________

3. This provision states:

       No person subject to this chapter may interrogate, or request any
       statement from, an accused or a person suspected of an offense
       without first informing him of the nature of the accusation and
       advising him that he does not have to make any statement
       regarding the offense of which he is accused . . . .

                               10
660. Whether a person is in "custody" for purposes of
Miranda is not a factual question entitled to the
presumption of correctness, see Thompson v. Keohane, 516
U.S. 99 (1995), and therefore we ask whether the
determination of the military courts that Brosius was not in
custody is "contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States." 28
U.S.C. S 2254(d)(1). We hold that under these standards,
the determination of the military courts must be sustained.

Brosius argues that he was in custody at the time of the
first interview on June 2 because his first sergeant, the
highest-ranking noncommissioned officer in the unit,"sent"
him to the orderly room to speak with the CID agents and
because under Article 91(2) of the UCMJ, 10 U.S.C.
S 891(2), Brosius was required to obey the first sergeant's
orders. In making this argument, Brosius relies on the
statement of Special Agent Allen that the first sergeant
"sent" Brosius to the orderly room. However, when Special
Agent Allen's testimony on this point is viewed in context
and together with other pertinent testimony, it is apparent
that there is no basis for overturning the Army Court of
Military Review's determination that Brosius appeared
before the CID agents voluntarily.

Special Agent Allen testified as follows:

       A. . . . [T]he First Sergeant told us there was a soldier
       that stated that he was with her the night before, and
       he asked if we wanted to see him. We said, "Yes if he's
       in the area you can send him down."

       Q. Okay. So the First Sergeant sent him down to the
       orderly room?

       A. Yes, sir.

App. 1.

Special Agent Nash explained the circumstances that led
to Brosius's being "sent" to the orderly room. 4 Special Agent
_________________________________________________________________

4. Special Agent Nash's testimony on this point was apparently hearsay.
Under Mil.R.Evid. 104(a), a trial judge is not bound by the rules of

                               11
Nash testified that Brosius "approached some of our agents
or the First Sergeant, and the First Sergeant approached
our agents while they were in the unit, saying that he was
with PFC Ivon, and that he wanted to come and tell us
what he knew about it." App. 18; see also id . at 30. When
Brosius was asked how he had come to be interviewed at
the base, he stated "[s]omebody from the orderly room . . .
came down to my room where I was at the time, and said
that the police, CID, wanted to speak to me about what
happened the night before." App. at 80.

Viewing all of this evidence together, we see no basis for
rejecting the determination of the Army Court of Military
Review that Brosius appeared voluntarily. Special Agent
Nash's testimony directly supports that determination, and
Special Agent Allen's use of the term "sent" is easily
reconcilable with his testimony. A person who has
expressed a desire to speak with someone may be"sent" to
see that person when the person is available. ("After some
time in the waiting room, the patient was sent in to see the
doctor.")

We thus then turn to the second interview conducted on
June 2 at the River Building. Brosius argues that he was in
custody at the time of this interview because, according to
the opinion of the Army Court of Military Review, Special
Agent Allen "instructed" Brosius to go to the River Building,
37 M.J. at 655, and, according to testimony given by
Special Agent Robinson, Brosius was then "escorted" to the
River Building by his section sergeant. App. 123. Brosius
contends that, in the military, the word "escort" is
synonymous with the word "guard." The government, by
contrast, argues that Brosius had a friendly personal
relationship with his section sergeant and that the sergeant
simply gave him a ride to the River Building.
_________________________________________________________________

evidence other than those pertaining to privileges and may consider
hearsay in a suppression hearing. See United States v. Dababneh, 28
M.J. 929, 934 (N.M.C.M.R. 1989) quoting Bourjaily v. United States, 483
U.S. 171, 178 (1978). Hearsay may be considered in a suppression
hearing in a federal court. United States v. Raddatz, 447 U.S. 667, 679
(1980).

                               12
The Army Court of Military Review, as previously noted,
concluded that Brosius voluntarily appeared before the CID
agents, and we accept that determination. Special Agent
Allen testified as follows concerning the circumstances that
led to Brosius's appearance at the River Building:

       Q. . . . [W]hen he said that. . . he didn't want to talk
       to you, what did you do?

       A. Well, we had several other people to talk to, and I
       told him "There's two lawyers down at the River
       Building," you know, if he wanted to talk to a lawyer
       about it or if he wanted to talk to someone about it , "go
       down there and someone would be glad to talk to you
       about it.

App. 4-5. (emphasis added). Special Agent Allen added:

       A. . . . I said, "Well, if you don't want to talk to us,
       there are attorneys down at the River Building right
       now, and if you want to go down there and talk to
       them about it, go ahead."

       Q. And then they did he?

       A. I think he did. He had a Sergeant there with him.
       I think it was his section Sergeant, whatever. I think he
       took him down there.

App. 13 (emphasis added).

Brosius   himself said little about the circumstances that
brought   him to the River Building, stating only that his
section   sergeant, who was "an acquaintance," gave him a
ride to   that facility. App. 75.

Considering the relevant portions of the record that have
been brought to our attention, we see no basis for rejecting
the determination of the Army Court of Military Review that
Brosius was not in custody when he spoke with the agents
at the River Building. According to Special Agent Allen,
Special Agent Robinson and he did not direct Brosius to go
to the River Building but merely told him to go there "if he
wanted to talk to a lawyer about it or if he wanted to talk
to someone about it." Brosius himself does not appear to
have testified that he felt compelled to go to the River
Building. Since the River Building was about 12 miles from

                                  13
the base, Brosius needed transportation to get there.
Special Agent Robinson's use of the term "escorted" may
simply mean that the section sergeant gave him a ride. In
ordinary speech, a person who is "escorted" is not
necessarily deprived of freedom of movement. If the military
courts did not think that Special Agent Robinson's use of
the term carried a special meaning due to the military
context, we are not inclined to second guess that
interpretation. Accordingly, we see no ground for holding
that Brosius's Miranda rights were violated on June 2.

B.

We now consider Brosius's argument that the failure to
give him warnings on June 2 violated his rights under
Article 31(b) of the UCMJ. As noted, Article 31(b) applies
whenever a service member who is "suspected of an
offense" is interrogated, whether or not the member is in
custody. Statements obtained in violation of Article 31(b)
may not be received in evidence at a court martial against
the person who made them. 10 U.S.C. S 83(d).

The parties disagree sharply about whether Brosius was
a suspect at the time of the June 2 interviews. Brosius
maintains that a reasonable investigator would have
regarded him as a suspect immediately upon learning that
Ivon had driven him back to the base alone in the early
morning hours of June 2. The government argues that the
agents were focusing on other suspects, chiefly Ivon's
estranged boyfriend, and did not regard Brosius as a
suspect.

We find it unnecessary to decide whether Brosius was
"suspected" of an offense on June 2. Even if he was
"suspected" and even if the statements that he provided on
June 2 should have been suppressed under 10 U.S.C.
S 83(d), the failure to suppress those statements was
harmless error. See Hassine v. Zimmerman, 160 F.3d 941,
949 (3d Cir. 1998) (in a habeas corpus proceeding, an error
is harmless if it did not have a substantial and injurious
effect or influence on the verdict). If the confession that
Brosius made on June 4 and 5 is not suppressed, a subject
that we discuss below, the statements made on June 2

                                14
were obviously harmless. As noted, at the June 2 interview,
Brosius stated that: 1) PFC Ivon gave him a ride back to the
base from a nightclub; 2) another male soldier rode with
them; 3) she had a troubled relationship with her boyfriend;
and 4) he had last seen her at about 2:55 a.m. on the
morning of the murder. These statements added nothing to
Brosius's later confession. Indeed, they do not appear to
have added much if anything to evidence available from
other witnesses or sources. Prior to the June 2 interview,
Brosius had told other witnesses who testified at trial that
he had driven home with the victim on the night of her
murder; that he might have been the last person to see her
alive; and that another person had accompanied them in
the car. In addition, the log book at a gate revealed that
Ivon's car had returned at 2:30 a.m. with two occupants.
Accordingly, the failure to suppress evidence obtained
during the June 2 interview was harmless under any
standard.

Brosius, however, contends that, because warnings were
improperly withheld on June 2, his subsequent confession
on June 4 and 5 must be suppressed. We cannot agree. In
Oregon v. Elstad, 470 U.S. 298 (1985), the Supreme Court
considered the appropriate remedy when a suspect in
custody is first interviewed without Miranda warnings and
is later given proper warnings and interviewed again. In
Elstad, the defendant was taken into custody for
committing a burglary. Id. at 300-01. He was initially
questioned at the scene of the arrest and made an
incriminating admission. Id. After he was taken to the
police station, Miranda warnings were given, he signed a
written waiver, and confessed to the crime. Id . at 301-02.
The state appellate court held that, even if the confession
had not resulted from actual compulsion, the defendant's
initial statement had a coercive impact because it had let
the " `cat . . . out of the bag.' " Id. at 303 (citation omitted).
The state appellate court consequently held that the later
statement had to be suppressed. Id.

The Supreme Court reversed, holding that "absent
deliberately coercive or improper tactics in obtaining the
initial statement, the mere fact that a suspect has made an
unwarned admission does not warrant a presumption of

                               15
compulsion." Id. at 314. The Court added that "[a]
subsequent administration of Miranda warnings to a
suspect who has given a voluntary but unwarned statement
ordinarily should suffice to remove the conditions that
precluded admission of the earlier statement." Id. at 314.

That is precisely what occurred here. Brosius made
unwarned statements on June 2. He went home, and two
days passed. On June 4th, he was called back for a second
interview. He was then given proper warnings, and he
subsequently confessed. There is no reason to believe that
these later statements were not "knowingly and voluntarily
made." Elstad, 470 U.S. at 309.

Brosius argues that the circumstances surrounding the
interview at the River Building were improper because
Brosius was led to believe that Captain Ewing, who was
actually a member of the prosecution team, was serving as
Brosius's attorney. The government responds that,
although Captain Ewing had previously represented
Brosius in an unrelated matter, Captain Ewing and the
agents made it clear that Captain Ewing was working with
the prosecution in relation to the Ivon murder investigation.

Captain Ewing's role at the June 2 interview at the River
Building was inadvisable, but it does not call for the
suppression of the confession that Brosius provided days
later after receiving proper warnings. Brosius relies on the
statement in Elstad that a prior failure to warn may call for
the suppression of a subsequent statement made after
receiving proper warnings if "deliberately coercive or
improper tactics" were used in the first interrogation. 470
U.S. at 314. This rule, however, relates to situations in
which the tactics used in the first, improper interrogation
had a coercive effect that led to the later admissions.
Nothing of that sort happened here. As we have noted,
Brosius did not provide any new, incriminating information
during the interviews on June 2. He was not even in the
position of the defendant in Elstad, who had"let the cat out
of the bag" when he was initially questioned. Brosius's
statements during the June 2 interviews cannot have
coerced him to make his subsequent confession.

                                16
IV.

Brosius's final argument is that his confession should be
suppressed under Edwards v. Arizona, 451 U.S. 477
(1981). In Edwards, the Supreme Court held that "an
accused . . . having expressed his desire to deal with the
police only through counsel, is not subject to further
interrogation by the authorities until counsel has been
made available to him, unless the accused himself initiates
further communications, exchanges, or conversations with
the police." Id. at 484-85. Brosius maintains that he
requested counsel during the interview on June 2 and
therefore his subsequent questioning without counsel was
improper.

We reject Brosius's Edwards argument. Edwards applies
only where the suspect makes a request for counsel while
in custody. See, e.g., United States v. Wyatt, 179 F.3d 532,
536 (7th Cir. 1999)(citing cases); United States v. Bautista,
145 F.3d 1140, 1146 (10th Cir. 1998); cf. Alston v. Redman,
34 F.3d 1237, 1249 (3d Cir. 1994) (Edwards does not apply
where counsel was requested outside the context of
"custodial interrogation"). Here, because Brosius was not in
custody on June 2, Edwards does not apply.

V.

For these reasons, we affirm the order of the District
Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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