                                                 Filed:   June 3, 1997


                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT



                            No. 96-4242
                            (CR-95-175)



United States of America,

                                             Plaintiff - Appellant,

          versus

James Braxton,

                                                Defendant - Appellee.




                             O R D E R


     The Court amends its opinion filed May 6, 1997, as follows:

     On page 13 -- the first sentence in Section IV is corrected to
begin:   "Because the police activity used to elicit an incrim-

inating statement must be coercive before a statement will be held

to be involuntary, it is not surprising . . . ."

                                      For the Court - By Direction



                                          /s/ Patricia S. Connor
                                                     Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                              No. 96-4242

JAMES BRAXTON,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Elizabeth V. Hallanan, District Judge.
(CR-95-175)

Argued: April 8, 1997

Decided: May 6, 1997

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER,
HALL, MURNAGHAN, WILKINS, NIEMEYER, HAMILTON,
LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Williams wrote
the majority opinion, in which Chief Judge Wilkinson and Judges
Russell, Widener, Wilkins, Niemeyer, Hamilton, and Luttig joined.
Judge Michael wrote a concurring opinion. Judge Motz concurred in
part III of the opinion and in the judgment. Judge Hall wrote a dis-
senting opinion. Judge Murnaghan wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Rebecca A. Betts, United States Attorney, Charleston,
West Virginia, for Appellant. Edward Henry Weis, First Assistant
Federal Public Defender, Charleston, West Virginia, for Appellee.
ON BRIEF: Margaret A. Hickey, Assistant United States Attorney,
Charleston, West Virginia, for Appellant. Hunt L. Charach, Federal
Public Defender, Charleston, West Virginia, for Appellee.

_________________________________________________________________

OPINION

WILLIAMS, Circuit Judge:

James Braxton purchased twenty-nine guns within the span of eight
weeks in late 1993. In July 1994, after learning of Braxton's series of
gun purchases, the Bureau of Alcohol, Tobacco & Firearms (ATF)
initiated an investigation. In August 1994, ATF Special Agent Kay
Poynter and West Virginia State Trooper Tom Ballard interviewed
Braxton about the gun purchases. The interview, which took place
around the kitchen table in Braxton's mother's home, lasted about an
hour. During the interview, Braxton made what amounted to a confes-
sion. Braxton subsequently was indicted by a grand jury sitting in
Charleston, West Virginia, on seven counts of knowingly making
false statements in connection with the purchase of firearms in viola-
tion of 18 U.S.C.A. § 924(a)(1)(A) (West Supp. 1997). Prior to trial,
he moved to suppress the statement he made during the interview
with Agent Poynter and Trooper Ballard. The district court granted
Braxton's motion, determining that the statement was involuntary and
ordering that it be suppressed. We granted en banc review of this case
to consider the Government's appeal of the district court's order. For
the reasons that follow, we hold that Braxton's statement was volun-
tary and that the district court erred in suppressing it. Accordingly, we
reverse.

I.

Through the receipt of several firearms forms, ATF agents discov-
ered that Braxton had purchased multiple firearms. ATF Special
Agent Kay Poynter attempted to locate Braxton so that she could
question him about the purchases. After failing to locate him, she
asked West Virginia State Trooper Tom Ballard to assist her. Ballard
contacted Braxton on August 4, 1994, told Braxton that he and an

                    2
ATF agent wanted to talk with him about his firearms purchases, and
asked Braxton if he would meet them at the local police station. Brax-
ton declined to meet them at the police station, but suggested that they
meet the next day at "his mom's house," where he lived.

Arriving at Braxton's mother's home for the interview, the law
enforcement officers displayed their badges to Braxton and explained
that they "needed" to talk to him about his firearm purchases. Braxton
permitted them to enter the home and invited them to sit at the kitchen
table. Braxton's mother's boyfriend was initially present in the home
and shortly after he left, Braxton's sister arrived. The officers did not
inform Braxton of his right to remain silent, nor did they tell him that
he was required to answer their questions. During the interview, Brax-
ton admitted that he had purchased firearms for a third party. He also
complied with the officers' request that he provide them with a pic-
ture of himself.

The district court enunciated three independent rationales for find-
ing that Braxton's statement should be suppressed as involuntary.
First, the district court held that the confession was involuntary
because Agent Poynter and Trooper Ballard told Braxton that they
"needed" to talk to him, rather than that they "would like" to talk to
him. As support for this holding, the district court determined that
Braxton's "comment that he felt intimidated in the presence of the
two law enforcement officers was a credible statement." (J.A. at 160.)
Second, the district court found that Trooper Ballard told Braxton
"that he was not `coming clean' and that he could face five years jail
time as a result." (J.A. at 161.) The district court construed this state-
ment to be both a threat and an implied promise, and concluded that
the Trooper's statement rendered Braxton's confession involuntary.
Finally, the district court held that the confession was involuntary
because Agent Poynter and Trooper Ballard failed "to advise [Brax-
ton] as to why they `needed' to question him or tell him of the possi-
ble consequences he faced as a result of answering their questions."
(J.A. at 161.) Although the district court acknowledged that Braxton
was not in custody, the court nevertheless concluded that his state-
ment was involuntary.

II.

The admissibility of Braxton's statement turns on whether the
statement was voluntary under the Fifth Amendment which guaran-

                     3
tees that "[n]o person . . . shall be compelled in any criminal case to
be a witness against himself . . . without due process of law." U.S.
Const. amend. V; accord Malloy v. Hogan, 378 U.S. 1, 7 (1964)
(holding that when "a question arises whether a confession is incom-
petent because not voluntary, the issue is controlled by that portion
of the Fifth Amendment to the [C]onstitution of the United States
commanding that no person `shall be compelled in any criminal case
to be a witness against himself'" (quoting Bram v. United States, 168
U.S. 532, 542 (1897))). A statement is involuntary under the Fifth
Amendment only if it is "involuntary" within the meaning of the Due
Process Clause. See Oregon v. Elstad, 470 U.S. 298, 304 (1985) (cit-
ing Haynes v. Washington, 373 U.S. 503 (1963); Chambers v.
Florida, 309 U.S. 227 (1940)). The test for determining whether a
statement is voluntary under the Due Process Clause"is whether the
confession was `extracted by any sort of threats or violence, [or]
obtained by any direct or implied promises, however slight, [or] by
the exertion of any improper influence.'" Hutto v. Ross, 429 U.S. 28,
30 (1976) (alterations in original) (quoting Bram, 168 U.S. at 542-43).
In Colorado v. Connelly, 479 U.S. 157 (1986), the Supreme Court
held that "coercive police activity is a necessary predicate to the find-
ing that a confession is not `voluntary' within the meaning of the Due
Process Clause." Id. at 167.

The mere existence of threats, violence, implied promises,
improper influence, or other coercive police activity, however, does
not automatically render a confession involuntary. The proper inquiry
"is whether the defendant's will has been `overborne' or his `capacity
for self-determination critically impaired.'" United States v. Pelton,
835 F.2d 1067, 1071 (4th Cir. 1987) (quoting Schneckloth v.
Bustamonte, 412 U.S. 218, 225 (1973)). Any statement given freely
and voluntarily without any compelling influences is admissible in
evidence. See Miranda v. Arizona, 384 U.S. 436, 478 (1966). The
Government bears the burden of proving by a preponderance of the
evidence that the statement was voluntary. See Lego v. Twomey, 404
U.S. 477, 489 (1972).

To determine whether a defendant's will has been overborne or his
capacity for self-determination critically impaired, courts must con-
sider "the `totality of the circumstances,' including the characteristics
of the defendant, the setting of the interview, and the details of the

                     4
interrogation." Pelton, 835 F.2d at 1071 (quoting United States v.
Wertz, 625 F.2d 1128, 1134 (4th Cir. 1980)); accord Ferguson v.
Boyd, 566 F.2d 873, 877 (4th Cir. 1977) (per curiam) (holding that
"a finding of coercion and involuntariness must be based upon a care-
ful consideration of the totality of the circumstances" (citing
Schneckloth, 412 U.S. at 226)); see also Haynes, 373 U.S. at 513-14
(noting that appellate court must review the totality of circumstances
surrounding the statement). On review, "[a]n appellate court must
make an independent determination on the issue of voluntariness,"
while accepting "the district court's findings of fact on the circum-
stances surrounding the confession . . . unless clearly erroneous."
Pelton, 835 F.2d at 1072 (citations omitted). We address in turn each
of the district court's three rationales for suppressing Braxton's state-
ment.

A.

First, the district court erred in determining that the officers unlaw-
fully interrogated Braxton because they told him when they arrived
at his mother's home "that they `needed' to ask him some questions,
rather than saying they `would like' to ask him some questions,
because of the insinuation that if they `needed to ask,' [Braxton]
`needed to answer.'" (J.A. at 160.) The officers' use of the colloquial
phrase "we need to talk to you" simply does not constitute coercive
police conduct. The district court's determination that the statement
obligated Braxton to answer their questions is unwarranted. There is
absolutely no evidence that the officers told Braxton that he was obli-
gated to speak with them. Indeed, the district court itself expressly
determined that the officers did not tell Braxton that he was required
to answer their questions.

The district court also stated that it "observed [Braxton's] demea-
nor while he was testifying and concluded that his comment that he
felt intimidated in the presence of the two law enforcement officers
was a credible statement." (J.A. at 160.) Although we usually decline
to overturn a district court's factual determination founded on a wit-
ness's demeanor and credibility, see United States v. Locklear, 829
F.2d 1314, 1317 (4th Cir. 1987), we attach little significance to Brax-
ton's testimony that he felt intimidated in the presence of Poynter and
Ballard. Subsequent testimony by an accused about his prior subjec-

                    5
tive mental impressions and reactions must be carefully scrutinized,
as such testimony is "always influenced by [his] self-interest." Wertz,
625 F.2d at 1136 (citing United States v. Robertson, 582 F.2d 1356,
1366-67 (5th Cir. 1978) (en banc)). Here, there is no evidence in the
record -- other than Braxton's self-serving testimony -- to establish
that the officers were so intimidating and overpowering that Brax-
ton's will to resist was overcome. Indeed, it would be hard to imagine
a more routine, benign, and noncoercive investigatory scenario: Brax-
ton was not under arrest, the pre-arranged interview took place in his
mother's home with others present, the interview lasted only an hour,
Braxton appeared at all times to be acting cooperatively and voluntar-
ily, and he was not taken into custody even after the interview.

B.

Second, the district court erred in determining that Trooper Bal-
lard's "you're not coming clean" statement constituted coercive police
conduct that rendered the confession involuntary. In coming to this
conclusion, the district court relied exclusively on Braxton's testi-
mony on the subject, which consisted entirely of the following:

        Officer Ballard said if -- he stated, "If you're not coming
        clean, you can, you can get five, you know, you can do five
        years because you're not coming clean." He kept on saying,
        "You're not coming clean, you're not coming clean."

(J.A. at 120.) Based on this testimony, the district court held that
Trooper Ballard's statement to Braxton that he could face five years
in jail was both a threat and an implied promise.

The Government argues

        that informing a suspect that he faces jail time or a reference
        to the maximum penalty for the offense does not render a
        confession involuntary. See, e.g., United States v. Sablotny,
        21 F.3d 747, 752-53 (7th Cir. 1994) (suspect threatened with
        specter of jail); United States v. Mendoza-Cecelia, 963 F.2d
        1467, 1475 (11th Cir. 1992) (suspect was advised that he
        faced ten years in jail). A suggestion to [a] defendant that
        he "come clean" is more truthful than coercive.

                    6
(Appellant's Br. at 8.) We have previously stated that "`a law enforce-
ment officer may properly tell the truth to the accused.'" Pelton, 835
F.2d at 1072 (quoting United States v. Williams, 479 F.2d 1138, 1140
(4th Cir. 1973)). Indeed, "[t]ruthful statements about [the defendant's]
predicament are not the type of `coercion' that threatens to render a
statement involuntary." Id. at 1073. At the time of the interview,
Braxton was being investigated for making a false statement on a fire-
arms record. The maximum statutory penalty for making a false state-
ment on a firearms record is, as Trooper Ballard correctly stated, five
years. See 18 U.S.C.A. § 924(a)(1)(A) (West Supp. 1997).

Braxton contends that Trooper Ballard's statement "that you can do
five years because you're not coming clean" was not a truthful state-
ment because he presently faces five years because he did "come
clean," i.e., because he confessed to making false statements on fire-
arms records, and, as a result, was indicted. Even if Trooper Ballard's
statement was not an accurate appraisal of the potential consequences
of making a false statement on a firearms record, it was a truthful
statement about the potential consequences of making a false state-
ment to law enforcement officers during an investigatory interview.
See 18 U.S.C.A. § 1001 (West Supp. 1997) (stating that maximum
statutory penalty for making false statements is five years). Admon-
ishing a suspect to tell the truth during an investigatory interview by
informing him of the statutory penalty under 18 U.S.C.A. § 1001 for
making false statements does not constitute coercive police conduct
rendering a statement involuntary. See Rivers v. United States, 400
F.2d 935, 943 (5th Cir. 1968) (holding that postal inspector's refer-
ence to 18 U.S.C.A. § 1001 during a custodial interview was not coer-
cive but "merely emphasized that if Appellant was going to say
anything, he had best tell the truth"). Neither Poynter nor Ballard inti-
mated to Braxton that he had a duty to speak, only that if he spoke
he was required to do so truthfully. As the record reveals, Trooper
Ballard believed that Braxton was not speaking truthfully; in other
words, that he was not "coming clean."

Braxton argues that whether construed as a reference to the five-
year penalty for making false statements on a firearms record, or as
a reference to the five-year penalty for making false statements to law
enforcement officers during an investigatory interview, Trooper Bal-
lard's "coming clean" statement was misleading because is was not

                    7
"the whole truth." Ballard's statement was not the "whole truth,"
Braxton contends, because, after admonishing Braxton to "come
clean," Ballard failed to inform Braxton that he had the right, under
the Fifth Amendment, to refuse to speak. Whenever a law enforce-
ment officer suggests to a suspect that he tell the truth or face conse-
quences, Braxton argues, he must also inform the suspect that he has
the right to remain silent. Because Trooper Ballard failed to give such
a warning, Braxton contends, the statement was coercive and ren-
dered Braxton's confession involuntary.

Braxton's argument is far-reaching. It would, in effect, require
Miranda warnings in all investigatory scenarios-- whether custodial
or noncustodial. We decline to extend the reach of Miranda so far. "In
order for Miranda warnings to be necessary, the defendant must be
in a custodial situation, and the statements must be made while the
defendant is being interrogated." United States v. Wright, 991 F.2d
1182, 1186 (4th Cir. 1993); see also Miranda v. Arizona, 384 U.S.
436, 444 (1966) ("By custodial interrogation, we mean 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."). The Supreme Court has "stressed that it was the
custodial nature of the interrogation which triggered the necessity . . .
of its Miranda holding." Beckwith v. United States, 425 U.S. 341, 346
(1976); accord United States v. Pelton, 835 F.2d 1067, 1072 (4th Cir.
1987) (stating that Miranda warnings are not required in noncustodial
interrogations). Here, it is not disputed that Braxton was not in cus-
tody when he made the inculpatory statement to Agent Poynter and
Trooper Ballard. At the interview, Braxton freely consented to answer
the officers' questions. He was not subjected to coercive police
action, either in word or deed. He was at liberty to terminate the dis-
cussion and ask the officers to leave at any time. The interview took
place on his turf, at his mother's home. Accordingly, Trooper Bal-
lard's statement was not a threat that rendered Braxton's confession
involuntary.

The district court also found that Trooper Ballard's statement con-
stituted an implied promise that "if you `come clean,' you will not be
prosecuted." Specifically, the district court stated that Braxton "could
easily have inferred from the statement that if he did `come clean' he
would not face jail time and that answering the questions could be to

                    8
his benefit." (J.A. at 161.) Again, we disagree. A law enforcement
officer's admonishment to a suspect during an investigatory interview
to tell the truth or face consequences is simply not an implied promise
of non-prosecution. The district court clearly erred in drawing that
implication from Trooper Ballard's statement.

Even if the district court did not err in determining that Trooper
Ballard's statement was both a threat and an implied promise, the
court erred in concluding that the mere existence of the threat and
implied promise rendered Braxton's confession involuntary. The exis-
tence of a threat or an implied promise does not automatically render
a confession involuntary. The proper inquiry is whether the confes-
sion was "extracted" by the threats or implied promises, "however
slight." See Hutto, 429 U.S. at 30. For a threat or an implied promise
to invalidate a defendant's statement, "the pressure, in whatever form
[or `however slight'], [must be] sufficient to cause the petitioner's
will to be overborne and his capacity for self-determination to be crit-
ically impaired." Ferguson, 566 F.2d at 877 (citing Columbe v.
Connecticut, 367 U.S. 568, 602 (1961)); accord Pelton, 835 F.2d at
1071.

Here, considering the totality of the circumstances, Trooper Bal-
lard's statement to Braxton that he could face five years in jail was
neither a threat that overpowered Braxton's will to resist, nor an
implied promise that he could not refuse. Cf. United States v.
Sablotny, 21 F.3d 747, 752 (7th Cir. 1994) (holding that police detec-
tive's statement to defendant that "she would probably go to jail" if
she did not cooperate did not render her confession involuntary);
United States v. Mendoza-Cecelia, 963 F.2d 1467, 1475 (11th Cir.
1992) (holding that Customs official's statement to defendant that "if
you don't cooperate with us, ten years can be a long time in jail" did
not render defendant's confession involuntary). Even if the statement
influenced Braxton's decision to confess, the voluntariness of the con-
fession "is not . . . `to be equated with the absolute absence of intimi-
dation,' for under this test virtually no statement would be voluntary."
Pelton, 835 F.2d at 1072 (quoting Wertz, 625 F.2d at 1134).

                    9
C.

Third, the district court erred in determining that Braxton's confes-
sion was involuntary because the officers failed to tell him of the
charges they were investigating. Although Braxton knew that the offi-
cers wanted to discuss his series of gun purchases and that Poynter
was an ATF agent, he apparently was not aware of all of the possible
offenses related to the purchases. While courts may consider whether
the defendant knew the nature of the offense under investigation in
determining voluntariness, see 18 U.S.C.A. § 3501(b)(2) (West 1985),
Agent Poynter and Trooper Ballard had no duty to advise Braxton of
the identity of the specific offense under investigation. See United
States v. Olmstead, 698 F.2d 224, 226-27 (4th Cir. 1983) (holding that
law enforcement officers have no duty to inform suspects of the
nature of the crime being investigated unless the suspect asks and fail-
ing to tell would be misleading); United States v. Okwumabua, 828
F.2d 950, 953 (2d Cir. 1987) ("Silence by a government agent can
only be equated with an affirmative misrepresentation where there is
a legal or moral duty to speak or where an inquiry left unanswered
would be intentionally misleading."); see also Colorado v. Spring,
479 U.S. 564, 577 (1987) (holding in custodial interrogation case that
"a suspect's awareness of all the possible subjects of questioning in
advance of interrogation is not relevant to determining whether the
suspect voluntarily, knowingly, and intelligently waived his Fifth
Amendment privilege" (emphasis added)).* We would impose a sub-
stantial burden on law enforcement operations if we required investi-
gating officers in noncustodial, investigatory interviews to inform
suspects of every potential theory of liability related to the suspect's
conduct at issue. In light of the fact that such suspects may simply
_________________________________________________________________

* Moreover, although courts may consider whether the defendant was
advised of his Miranda rights in determining voluntariness, see 18
U.S.C.A. § 3501(b)(3) (West 1985), Agent Poynter and Trooper Ballard
had no duty to advise Braxton of his right against self-incrimination. The
interview with Braxton was noncustodial. See Miranda v. Arizona, 384
U.S. 436, 477-78 (1966); United States v. Pelton, 835 F.2d 1067, 1072
(4th Cir. 1987) (noting that in noncustodial interrogations, "the absence
of Miranda warnings is one `factor' to be considered in assessing the
voluntariness of a confession"); United States v. Locklear, 829 F.2d
1314, 1316 (4th Cir. 1987) (agent's failure to give defendant Miranda
warnings during noncustodial interrogation "does not require that [the
defendant's] remarks be suppressed").

                    10
refuse to answer questions and then seek legal counsel, we are loath
to impose such a burdensome duty on investigating officers.

After thoroughly reviewing the circumstances surrounding the
interview at Braxton's mother's house, we can find no evidence that
Agent Poynter or Trooper Ballard used any technique or method that
would offend due process. The officers did not harm or threaten to
harm Braxton if he did not answer their questions. See, e.g., Beecher
v. Alabama, 389 U.S. 35, 36 (1967) (statement obtained after police
held a gun to suspect's head); Payne v. Arkansas, 356 U.S. 560, 564-
65 (1958) (statement obtained after police threatened to turn suspect
over to an angry mob); Brown v. Mississippi, 297 U.S. 278, 281-82
(1936) (statement obtained after police whipped suspect). The officers
did not deprive Braxton of anything. See, e.g., Malinski v. New York,
324 U.S. 401, 403, 406-07 (1945) (statement obtained after forcing
suspect to remain naked); Reck v. Pate, 367 U.S. 433, 441 (1961)
(statement obtained after depriving suspect of adequate food, sleep,
and contact with family); Brooks v. Florida, 389 U.S. 413, 414-15
(1967) (statement obtained after depriving suspect of food and keep-
ing suspect naked in a small cell). The officers did not subject Brax-
ton to a lengthy period of interrogation or isolation. See, e.g., Ashcraft
v. Tennessee, 322 U.S. 143, 154 (1944) (statement obtained after
interrogating suspect virtually nonstop for thirty-six hours); Davis v.
North Carolina, 384 U.S. 737, 752 (1966) (statement obtained after
isolating suspect for several weeks). And, as we have explained, the
officers did not try to deceive Braxton. See, e.g., Spano v. New York,
360 U.S. 315, 323 (1959) (statement obtained after suspect errone-
ously told that a friend, who had three children and a pregnant wife,
would lose his job); Leyra v. Denno, 347 U.S. 556, 559-61 (1954)
(statement obtained after hours with psychiatrist trained in hypnosis,
although suspect erroneously told that doctor was a general practi-
tioner). In short, we cannot find the kind of coercive police conduct
that is necessary to render Braxton's statement involuntary under the
Due Process Clause. The district court therefore erred under each of
its stated rationales in determining that Braxton's confession was
involuntary.

III.

In addition to erring under all three of these specific rationales, the
district court also erred by failing to consider the "totality of the cir-

                     11
cumstances." Cf. United States v. Dodier, 630 F.2d 232, 236 (4th Cir.
1980) (stating that "[t]he district court's resolution of the credibility
issues are fully supported by the record," but holding that the court's
"conclusion that the totality of the circumstances proved the confes-
sion involuntary . . . was clearly erroneous"). Specifically, the district
court failed to sufficiently consider "the characteristics of the defen-
dant, the setting of the interview, and the details of the interrogation."
United States v. Pelton, 835 F.2d 1067, 1071 (4th Cir. 1987). Braxton
was interviewed by law enforcement officers around the kitchen table
in his mother's home. During the interview, at least one family mem-
ber and one family friend were permitted to come and go freely. Cf.
United States v. Olmstead, 698 F.2d 224, 227 (4th Cir. 1983) (confes-
sion not involuntary where "interview was conducted in [the defen-
dant's] home in the presence of his wife"); United States v. Wertz,
625 F.2d 1128, 1134 (4th Cir. 1980) (confession not involuntary
where defendant made statement "in the very area where he lived and
had many friends and relatives who quickly gathered around him").
He had previously agreed to the meeting, and he permitted the offi-
cers to enter the home after they told him they needed to talk to him
about his firearm purchases. The district court acknowledged that the
interview was not custodial and that Braxton was never told that he
was required to answer the officers' questions. Furthermore, Braxton
was not questioned for an extended period, nor was he subject to
incommunicado interrogation. In its entirety, the interview lasted
approximately one hour. Cf. United States v. Locklear, 829 F.2d 1314,
1317 (4th Cir. 1987) (confession not involuntary where "the inter-
views were not an exercise in endurance" and"[t]he longest meeting
lasted approximately two hours"). Finally, there is nothing in the
record -- such as youth, diminished mental capacity, or intoxication
-- to suggest that Braxton was especially susceptible to police coer-
cion. Cf. Pelton, 835 F.2d at 1073-74 (defendant's personal character-
istics did not support his claim that he was coerced into confessing);
Locklear, 829 F.2d at 1317 (confession not involuntary where defen-
dant's "perception of events was at no time impaired by the influence
of drugs or alcohol"); see also United States v. Seni, 662 F.2d 277,
282 (4th Cir. 1981) (holding in custodial interrogation case that
defendant's statement was voluntary where defendant did "not allege
that a lack of education, maturity, or intelligence deprived him of the
ability to choose to remain silent").

At oral argument, instead of considering the totality of the circum-
stances, counsel for Braxton focussed on Trooper Ballard's single

                    12
statement to Braxton that he was not "coming clean." He argued that
Trooper Ballard's "coming clean" statement, standing alone,
amounted to government coercion sufficient to render Braxton's con-
fession involuntary. In applying the totality of the circumstances test,
however, courts should not focus on a single factor in determining
voluntariness. In Seni, 662 F.2d at 277, a custodial interrogation case,
we stated that voluntariness is "to be determined from `the totality of
all the surrounding circumstances,'" and held that neither the drawing
of a gun by the interrogating officer, nor the handcuffing of the con-
fessor "establish involuntariness in and of themselves." Id. at 281-82
(quotation and citations omitted). Here, Trooper Ballard's "coming
clean" statement is much less coercive than drawing a gun on the sus-
pect or handcuffing him -- practices that we held in Seni did not, in
and of themselves, establish that the confession was involuntary. Id.
Ergo, Trooper Ballard's statement, without more, is simply an insuffi-
cient basis for affirming the suppression of Braxton's confession.

IV.

Because the police activity used to elicit an incriminating statement must
be coercive before a statement will be held to be involuntary, it is not
surprising that "very few incriminating statements, custodial or otherwise,
are held to be involuntary." United States v. Rutledge, 900 F.2d 1127,
1129 (7th Cir. 1990). We find that this case is no exception. This is
not a case where law enforcement officers "went to extraordinary
lengths to extract from [the defendant] a confession by psychological
means." Ferguson v. Boyd, 566 F.2d 873, 877 (4th Cir. 1977) (per
curiam). Braxton's incriminating statement was elicited without the
aid of any coercive conduct on the part of Agent Poynter and Trooper
Ballard. Furthermore, nothing in the record so much as suggests that
Braxton's "will was overborne." Reck v. Pate, 367 U.S. 433, 440
(1961). As a result, Braxton's statement was voluntary under the Fifth
Amendment. Accordingly, the order of the district court suppressing
the statement is reversed and the case is remanded to the district court
for proceedings consistent with this opinion.

REVERSED AND REMANDED

MICHAEL, Circuit Judge, concurring in the judgment:

I concur in the judgment because I do not believe that the totality
of the circumstances reveals that Braxton's will was overborne or that

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his capacity for self-determination was critically impaired. See United
States v. Pelton, 835 F.2d 1067, 1071 (4th Cir. 1987).

HALL, Circuit Judge, dissenting:

I join Judge Murnaghan's dissent. I write separately only to empha-
size that, in my view, the trooper's "come clean or you'll get five
years" threat/promise was plainly false. Braxton had no obligation to
say a single word to the authorities, let alone to"come clean," and he
could not have been punished for it had he silently shown his inquisi-
tors to the door.

MURNAGHAN, Circuit Judge, dissenting:

I respectfully dissent from the majority's opinion. Trooper Bal-
lard's threat that Braxton would face five years in jail if he did not
"come clean" and confess and his implied promise that Braxton would
not face jail time if he did confess were clearly sufficient "to cause
[Braxton's] will to be overborne and his capacity for self-
determination to be critically impaired." Ferguson v. Boyd, 566 F.2d
873, 877 (4th Cir. 1977).

I.

The Supreme Court has held that when "a question arises whether
a confession is incompetent because not voluntary, the issue is con-
trolled by that portion of the [F]ifth [A]mendment to the
[C]onstitution of the United States commanding that no person `shall
be compelled in any criminal case to be a witness against himself.'"
Bram v. United States, 168 U.S. 532, 542 (1897). The constitutional
inquiry is not whether the conduct of the officers in obtaining the con-
fession was shocking, but whether the confession was "`free and vol-
untary.'" Malloy v. Hogan, 378 U.S. 1, 7 (1964) (quoting Bram, 168
U.S. at 542). More specifically, the test for determining whether a
statement is voluntary is "whether the confession was `extracted by
any sort of threats or violence, [or] obtained by any direct or implied
promises, however slight, [or] by the exertion of any improper influ-
ence.'" Hutto v. Ross, 429 U.S. 28, 30 (1976) (alterations in original)
(quoting Bram, 168 U.S. at 542-43). The proper inquiry focuses on

                    14
whether, as a matter of law, under the totality of the circumstances,
"the defendant's will has been `overborne' or his `capacity for self-
determination critically impaired.'" United States v. Pelton, 835 F.2d
1067, 1071 (4th Cir. 1987) (quoting Schneckloth v. Bustamonte, 412
U.S. 218, 225 (1973)).

I disagree with the majority opinion's application of those princi-
ples in the instant case. Part II.B. of the majority opinion holds that
Trooper Ballard's "coming clean" statement did not constitute coer-
cive police conduct. The majority points out that a law-enforcement
officer may lawfully tell the defendant the truth. The majority then
concludes that Trooper Ballard's statement was not a coercive threat
because he merely told Braxton the "truth," namely, that he could
serve five years in jail either for making a false statement on a fire-
arms record, see 18 U.S.C.A. § 924(a)(1)(A) (West Supp. 1997), or
for making a false statement during an investigatory interview, see 18
U.S.C.A. § 1001 (West Supp. 1997).

It is far from clear, however, that Trooper Ballard's statement that
Braxton could "do five years because [he was] not coming clean"
referred to either § 924(a)(1)(A) or § 1001. Indeed, the officers did
not tell Braxton, nor was Braxton aware, that he was under investiga-
tion for making false statements on a firearms record, in violation of
§ 924(a)(1)(A). The district court reached a plausible conclusion that
Trooper Ballard's statement constituted a threat that Braxton would
face five years in jail if he did not confess.

Moreover, the district court also reached a plausible conclusion that
the statement contained an implied promise that Braxton would not
face the same penalty if he did confess. Braxton easily could have
inferred from Trooper Ballard's statement that he would not face jail
time if he did "come clean" and confess and that answering the ques-
tions therefore would be to his benefit. As stated above, the Supreme
Court has clearly held that "implied promises, however slight," render
a confession involuntary. Ross, 429 U.S. at 30 (emphasis added)
(quoting Bram, 168 U.S. at 542-43).

I recognize that we must consider the totality of the circumstances
surrounding Trooper Ballard's statement. Nonetheless, even under the
totality of the circumstances, I would still hold that Braxton's confes-

                    15
sion was involuntary. An officer's threat that the defendant will serve
five years in jail if he does not confess and an officer's implied prom-
ise that the defendant will not serve any time if he does confess
clearly are "sufficient to cause the [defendant's] will to be overborne
and his capacity for self-determination to be critically impaired."
Ferguson, 566 F.2d at 877. Trooper Ballard's threat and implied
promise were sufficiently coercive to render Braxton's confession
involuntary, even though Trooper Ballard threatened Braxton at home
rather than in a police station.

II.

Accordingly, I would affirm the district court's judgment. I dissent.

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