                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-14-2005

USA v. Jacobs
Precedential or Non-Precedential: Precedential

Docket No. 04-2214




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                                    PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


                 No. 04-2214


      UNITED STATES OF AMERICA

                            Appellant

                       v.

              JOSETTE JACOBS




On Appeal from the United States District Court
           for the District of Delaware
    (D.C. Criminal Action No. 01-cr-00031)
 District Judge: Honorable Joseph J. Farnan, Jr.


          Argued February 15, 2005

      Before: SLOVITER, AMBRO and
         ALDISERT, Circuit Judges

         (Filed: December 14, 2005 )
Colm F. Connolly
  United States Attorney
Keith M. Rosen (Argued)
  Assistant United States Attorney
United States Attorney’s Office
Nemours Building
1007 Orange Street, Suite 700
P.O. Box 2046
Wilmington, DE 19899
      Counsel for Appellant

Christopher D. Warren, Esquire (Argued)
1604 Locust Street
Philadelphia , PA 19103
       Counsel for Appellee


                OPINION OF THE COURT


AMBRO, Circuit Judge

       Josette Jacobs was indicted on May 8, 2001, and charged
with conspiring to possess with the intent to distribute more
than five kilograms of cocaine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846. Jacobs moved to suppress
statements she made on March 14, 2000 (“the March
statements”) and on April 4, 2000 (“the April statements”).
After a hearing, the District Court granted the motions. The

                              2
Government now appeals.1 We affirm in part and reverse in
part, as we hold that Jacobs’ April statements were involuntary
and taken in violation of Miranda v. Arizona, 384 U.S. 436
(1966), but her March statements were voluntary.

                    I. Factual Background

      The District Court found the following facts in its
opinion reported at United States v. Jacobs, 312 F. Supp. 2d
619 (D. Del. 2004).

      A.       Jacobs’ history as an informant.

       Jacobs was a confidential informant for the Wilmington
Police Department and the Federal Bureau of Investigation
(“FBI”) for ten years prior to March 2000. Her primary law
enforcement contact, or “case handler,” was Wilmington police
detective Liam Sullivan, a Special Federal Officer (“SFO”) on
an FBI task force. To persuade Jacobs to become an FBI
informant, Sullivan told her that he had become affiliated with
the FBI and that it would pay more than the Wilmington police
for information. Jacobs provided information to the FBI about
fugitives, top-level Wilmington drug dealers, and current
community criminal trends. Sullivan characterized Jacobs as a
“good” informant and an “outstanding source of information.”
If Sullivan and Jacobs were working on a specific case they

      1
          We have jurisdiction under 18 U.S.C. § 3731.

                               3
would meet daily, but otherwise their meetings were more
sporadic.

       The FBI sometimes paid Jacobs for information. From
August 1997 to January 2000 she was paid five times for a total
of $3,450. Sullivan also assisted Jacobs when she was charged
with criminal offenses. Sullivan stated: “The exact amount of
times that I spoke with prosecutors and/or probation officers,
there were several times. I know that I advised prosecutors
and/or probation officers that . . . she was cooperating and
providing very valuable information and should be considered
for some, I guess, assistance.”

      Jacobs was regularly admonished not to engage in any
unlawful acts except as specifically authorized.2 Between 1997
and 1999 the FBI sometimes authorized Jacobs to engage in
criminal activity in order to provide intelligence for the FBI.
For example, in 1999 Jacobs was authorized to travel to New
York to bring back cocaine to targeted individuals in
Philadelphia.

       B.     The March statements.


       2
        The Government points out that the admonishments
warned Jacobs that she was subject to prosecution for any
unauthorized unlawful acts. Jacobs, in turn, points out that the
admonishments state that “[t]he source must abide by the
instructions of the FBI.”

                               4
       On March 14, 2000, Jacobs called Sullivan and asked to
see him right away about an “important” matter. She requested
they meet at her hotel room and Sullivan agreed. Sullivan and
FBI Special Agent Scott Duffey went to the hotel, knocked on
Jacobs’ door, and Jacobs invited them in.3 Jacobs told them she
had information about “the biggest” drug dealer in Wilmington.
She said that Bruce Stewart was regularly importing cocaine
from Los Angeles to Wilmington using couriers. She went on
to describe the scope, members, and method of operation of
Stewart’s drug organization. She also described the particular
suitcases used by the organization to carry the cash and cocaine.
Sullivan began to suspect that Jacobs was involved in these
drug offenses because she possessed “entirely too much
information.” Sullivan asked Jacobs if she had ever taken a trip
to Los Angeles for Stewart, and Jacobs replied she had not.
Sullivan then told Jacobs, “Listen[,] if you did, just tell me . . .
because if it comes out later, I can’t cover you.” Jacobs again
denied that she had traveled to Los Angeles on these drug buys,
and Sullivan and Duffey then left the hotel room.4

       3
       The District Court expressly found that Jacobs invited
Sullivan to her hotel room on March 14. 312 F. Supp. 2d at
624. However, the Court later stated that Jacobs was
“summoned to the Wilmington FBI Office” on March 14. Id. at
631. The former statement was correct.
       4
        The District Court stated that Jacobs “had been
specifically authorized to engage in the [Stewart] drug
conspiracy . . . .” Id. at 631. However, we can find no evidence

                                 5
       C.     The April statements.

        After the March 14, 2000 meeting, the FBI began an
investigation into the Stewart organization. During that
investigation, a different source admitted that she had taken
seven trips for Stewart, and that Jacobs had, in fact, taken three
trips for him. On April 3, 2000, Stewart and two other female
couriers were arrested at the Philadelphia Airport.
Coincidentally, on the same day, the FBI “closed” Jacobs as an
informant without informing her.

       The next day (April 4), Sullivan called Jacobs and told
her he needed to see her right away.5 Jacobs, along with her
five-year-old son, then went to the Wilmington FBI office and
entered through the private task force door. Sullivan then had
Jacobs and her son wait for approximately thirty minutes in a
room where suspects are interviewed, processed, and detained.
During this time Sullivan placed two suitcases that had been
recovered during Stewart’s arrest on the floor of the “squad bay
area” (an open office area in the vicinity of Sullivan’s desk).



of this in the record before us.
       5
        Jacobs points out that Sullivan actually testified that he
said that he “need[ed] to see [her] at the office right away.”
(Emphasis added.) Further, when she tried to find out why he
wanted to see her, Sullivan did not answer the question and
instead said, “I will talk to you about it when you get here.”

                                   6
        Sullivan next asked Jacobs to leave her son in the
interview room and brought her out to the squad bay area,
where he told her about the arrests at the airport. Jacobs then
saw the suitcases and said, “That’s the cases. See, I told you.”
Sullivan then told Jacobs that he had information that she was
involved in the conspiracy to transport drugs from Los Angeles
to Delaware. She responded that she had only carried money.
When Sullivan said that that was not his understanding, Jacobs
asked, “[W]ell, how else could I get any information on Bruce
[Stewart] for you if I didn’t go?” She went on to say that she
had two suitcases she had used during the trips at her residence,
and that a drug dog sniff of the suitcases would probably
indicate traces of cocaine. Sullivan asked her how many trips
to Los Angeles she had taken, and she replied there had been
two. Sullivan then confronted Jacobs with other aspects of her
prior statements in March that differed from what she had just
told him. He next told her to go home and think about what she
wanted to do regarding further cooperation with law
enforcement. Further, he told her that the FBI wanted the
suitcases she had at her residence.6 It is not disputed that at no
time did Sullivan (or anyone else) inform Jacobs that the FBI


       6
        On April 5, 2000, Duffey went to Jacobs’ home and she
gave him the suitcases. Also, the FBI was searching at that time
for a Robert Shepard. Jacobs told Duffey that she knew the safe
house where Shepard was hiding, and she took Duffey there.
Jacobs still believed she was a confidential informant during this
time.

                                7
had closed her as an authorized confidential informant, nor was
she given any Miranda warnings.

                   II. Standard of Review

       Whether a person was “in custody” for the purposes of
Miranda, and whether a statement was “voluntary” for the
purposes of a motion to suppress, are conclusions reviewed de
novo. Thompson v. Keohane, 516 U.S. 99, 112-13 (1995);
United States v. Walton, 10 F.3d 1024, 1027 (3d Cir. 1993).
However, the factual findings underlying the District Court’s
decision are reviewed for clear error. Walton, 10 F.3d at 1027.

                        III. Discussion

       We must determine whether Jacobs was in custody when
she made her statements and whether her statements were
involuntary. In section “A” we examine custody. Next, to
analyze involuntariness properly, it will be useful to examine in
section “B1” a preliminary issue: whether Sullivan made an
implied promise that Jacobs’ statements regarding the Stewart
drug conspiracy would not be used against her. We will then be
ready to address in sections “B2” and “B3” whether Jacobs’
March statements and April statements, respectively, were
involuntary.

       A.     Was Jacobs in custody during her statements?


                               8
       Jacobs claims only that she was in custody during her
April statements. Thus we address only that custody issue.

       As noted, it is undisputed that Sullivan did not advise
Jacobs of her Miranda rights before her April statements. If
Miranda warnings are not given before a person “in custody”
is questioned, evidence resulting from the questioning must be
suppressed.7 Miranda, 384 U.S. at 444-45. An individual is in
custody when he or she has been “deprived of his [or her]
freedom of action in any significant way.” Id. at 444; see also
United States v. Leese, 176 F.3d 740, 743 (3d Cir. 1999). In
Yarborough v. Alvarado, 541 U.S. 652 (2004), the Supreme
Court gave the following description of the Miranda custody
test:

       Two discrete inquiries are essential to the
       determination: first, what were the circumstances
       surrounding the interrogation; and second, given
       those circumstances, would a reasonable person
       have felt that he or she was not at liberty to
       terminate the interrogation and leave. Once the
       scene is set and the players’ lines and actions are


       7
       However, “[s]tatements made by a defendant in
circumstances violating . . . [Miranda] are admissible for
impeachment if their trustworthiness . . . satisfies legal
standards.” Mincey v. Arizona, 437 U.S. 385, 397-98 (1978)
(second omission in original) (internal quotation marks omitted).

                               9
       reconstructed, the court must apply an objective
       test to resolve the ultimate inquiry: was there a .
       . . restraint on freedom of movement of the degree
       associated with a formal arrest.

Id. at 663 (quoting Keohane, 516 U.S. at 112) (emphases
added) (quotation marks omitted). In this context, there are at
least three differently worded tests for when a person is in
custody: (1) when the person has been deprived of her or his
freedom in some significant way; (2) when a reasonable person
would perceive that she or he was not at liberty to terminate the
interrogation and leave; and (3) when there is a restraint on the
person’s freedom of movement of the degree associated with a
formal arrest. More clear is that the determination of custody is
an objective inquiry (that is, what a reasonable person would
believe) based on the circumstances of the interrogation. Leese,
176 F.3d at 743.

        The District Court correctly noted three factors that are
among those that should be weighed to determine if an
individual was in custody. Jacobs, 312 F. Supp. 2d at 627-28.
One is the location of the questioning. We have stated that “all
‘station house’ interrogations should be scrutinized with
extreme care for any taint of psychological compulsion or
intimidation because such pressure is most apt to exist while a
defendant is interviewed at a police station.” Steigler v.
Anderson, 496 F.2d 793, 799 (3d Cir. 1974). A second factor
is the information known by the officer concerning the

                               10
suspect’s culpability. “‘The more cause for believing the
suspect committed the crime, the greater tendency to bear down
in interrogation and create the kind of atmosphere of significant
restraint that triggers Miranda, and vice versa.’” Id. at 799
(quoting United States v. Hall, 421 F.2d 540, 545 (2d Cir.
1969)). And a third factor is whether the officer revealed his or
her belief that the suspect was guilty. Stansbury v. California,
511 U.S. 318, 325 (1994) (“An officer’s knowledge or beliefs
may bear upon the custody issue if they are conveyed, by word
or deed, to the individual being questioned.”).

       The District Court applied these factors to the facts of the
case and concluded that Jacobs was in custody during the April
4 interview because: (1) the questioning took place at the FBI
Offices; (2) Sullivan believed Jacobs was guilty; (3) Jacobs was
summoned to FBI offices without explanation; (4) Sullivan’s
questions were confrontational and intimidating; (5) he used
interrogation tactics, including placing the incriminating
suitcases in Jacobs’ view8 ; (6) Sullivan communicated to Jacobs


       8
        Sullivan acknowledged that displaying evidence to a
suspect is an interrogation technique and that he placed the
suitcases that were seized during Stewart’s arrest near his desk
because he “wanted [Jacobs] to see the suitcases in the hopes
that she would come around and tell us everything that she
knew.” The use of interrogation techniques in a police-station
setting was one of the very reasons why the Supreme Court held
in Miranda that a suspect must be advised of his or her

                                11
that he thought she was guilty; and (7) Jacobs felt obligated to
come to and stay at the questioning because she was reasonably
under the impression that she was still an FBI informant.
Jacobs, 312 F. Supp. 2d at 628. On appeal, Jacobs suggests
two additional reasons: (8) she was not specifically told she was
not under arrest before questioning began, citing Oregon v.
Mathiason, 429 U.S. 492, 495 (1977) (a factor indicating the
defendant was not in custody was that he was specifically told
he was not under arrest); California v. Beheler, 463 U.S. 1121,
1122 (1983) (same); and (9) she did not agree to meet with
Sullivan with knowledge of the fact that questioning about a
criminal offense would take place, see United States v. Kim,
292 F.3d 969, 974 (9th Cir. 2002) (“In determining whether
suspects were ‘in custody’ for Miranda purposes, the Supreme
Court has considered whether they voluntarily approached or
accompanied law officers understanding that questioning would
ensue.” (emphasis in original)).

       According to the Government, Mathiason suggests that
Jacobs was not in custody on April 4. In that case, a police
officer investigating a burglary left a note with the defendant
asking him to call because the officer wanted “‘to discuss
something with [him].’” 429 U.S. at 493. The defendant called
and a meeting was set up at the state parole office. Id. At the
meeting, after advising the defendant that he was not under


constitutional rights before questioning begins. 384 U.S. at 448-
55.

                               12
arrest, the officer told him that the police believed he had
committed the burglary and (falsely) that his fingerprints were
found at the scene. Id. A few minutes later, the defendant
confessed to the crime and was sent home shortly thereafter. Id.
at 493-94. The Supreme Court held that Mathiason had not
been in custody, stating that there was “no indication that the
questioning took place in a context where [Mathiason’s]
freedom to depart was restricted in any way.” Id. at 495. It did
so because Mathiason (1) had come to the station voluntarily,
(2) was informed that he was not under arrest, and (3) left the
interview without hindrance. Id. at 495.9

        To suggest that Mathiason implies that Jacobs was not
in custody reaches too far. The first factor found relevant by the
Supreme Court was that Mathiason had come to the station
voluntarily. In Jacobs’ case, by contrast, Sullivan called Jacobs
and told her that he “need[ed] to see [her] at the office right
away.” When Jacobs tried to find out why Sullivan wanted to
see her, he did not answer the question and instead stated, “I
will talk to you about it when you get here.” Furthermore,
Jacobs was led to believe she was still an informant and thus
likely felt an obligation to follow the directions of her handler,
particularly because Sullivan had paid her and used his position
to influence the criminal justice system to help her previously.


       9
       That the officer had falsely told Mathiason that his
fingerprints were found at the scene was held irrelevant to the
custody analysis. Mathiason, 429 U.S. at 495-96.

                               13
Finally, the FBI informant admonition forms stated that “the
source must abide by the instructions of the FBI” (emphasis
added). Thus, while Jacobs was not physically forced to go to
the FBI offices on April 4, her decision to go cannot fairly be
said to have been “voluntary” in the sense that it was for
Mathiason.

       In addition, Mathiason was told he was not under arrest.
As Jacobs was not told anything regarding her arrest status, pro
or con, this factor falls somewhat in her favor.

        Another factor was that Mathiason left the interview
without hindrance. Jacobs also left the interview without
hindrance. However, the test for custody is not whether the
police in fact let a suspect leave at the end of the questioning
without hindrance.         Rather, it is whether, under the
circumstances, a reasonable person would have believed that
during the questioning he or she could leave without hindrance.
Thus, if this factor is useful at all, it is only an indicator of what
the circumstances during the questioning would have made a
reasonable person believe. Furthermore, just because an officer
lets a suspect leave after he or she has gotten all the desired
incriminating evidence does not mean the officer would have let
the suspect leave (or, to be more precise, it does not mean the
officer made the suspect believe she or he could leave) during
the questioning.

       Thus, the first two Mathiason factors cut against the

                                 14
Government (acknowledging that the second factor favors
Jacobs tepidly). The third factor (the weakest) is only
marginally helpful to its case.

       The Government also argues that Beheler suggests that
Jacobs was not in custody on April 4. In Beheler, police were
investigating a homicide arising out of an attempted robbery by
Beheler and his co-conspirator, Wilbanks. 463 U.S. at 1122.
After the homicide, Beheler called the police, who came to the
crime scene. Id. He told the police that Wilbanks had killed the
victim. Id. Later, although the police specifically told Beheler
he was not under arrest, he voluntarily agreed to accompany
police to the station house. Id. There, Beheler agreed to talk
about the murder. Id. After less than thirty minutes, he was
allowed to return home. Id.

        The Beheler Court held that Mathiason controlled, as it
“involved a factual context remarkably similar to the present
case . . . .” Id. at 1123. However, as previously explained, the
first two Mathiason factors cut against the Government, and
only the weakest of the three factors, the third, is somewhat
helpful to it. The Supreme Court also noted that “Miranda
warnings are not required simply because the questioning takes
place in the station house, or because the questioned person is
one whom the police suspect.” Id. at 1125 (quotation omitted).
That either of these two factors alone does not per se indicate
custody hardly means that both of these factors in concert with
seven other factors do not indicate custody. To recap, in

                              15
Jacobs’ case, in addition to (1) the questioning taking place at
the FBI offices, and (2) Sullivan believing Jacobs was guilty,
the following additional factors were present: (3) Jacobs was
summoned to FBI offices without explanation; (4) Sullivan’s
questions were confrontational and intimidating; (5) he used
interrogation tactics, including placing the incriminating
suitcases in Jacobs’ view; (6) he communicated to Jacobs that
he thought she was guilty; (7) Jacobs felt obligated to come to
and stay at the questioning because she was reasonably under
the impression that she was still an FBI informant; (8) she was
not specifically told she was not under arrest before questioning
began; and (9) she did not agree to meet with Sullivan with
knowledge of the fact that questioning about a criminal offense
would take place. None of these factors was present in Beheler.
Thus it hardly requires us to conclude that Jacobs was not in
custody on April 4.10

       10
         The Government also cites Minnesota v. Murphy, 465
U.S. 420, 430-31 (1984), for the proposition that a suspect is not
necessarily in custody when compelled to appear at a meeting
with a probation officer. First, this proposition surely cannot be
generalized to mean being compelled to be somewhere can
never indicate custody. In fact, the very definition of being “in
custody” is essentially being “compelled to be somewhere” (two
of the three tests for when a person is in custody are (1) when
the person has been deprived of his or her freedom in some
significant way, and (2) when a reasonable person would
perceive that she or he was not at liberty to terminate the
interrogation and leave). Presumably Murphy should be limited

                               16
       In sum, nine factors indicate that Jacobs was in custody
during her April statements. The two cases on which the
Government primarily relies—Mathiason and Beheler—do not
support its position nearly as strongly as it argues, and in any
event do not overcome our conclusion of custody. Thus we
affirm the District Court on this issue.


to the probation context, in which the “baseline” is that the
probationer will be required to attend meetings. Cf. id. at 432
(“[T]he nature of probation is such that probationers should
expect to be questioned on a wide range of topics relating to
their past criminality.”). Further, unlike Jacobs’ April 4
interview, a “probation interview [is] arranged by appointment
at a mutually convenient time.” Id. at 433. Finally, the two
cases that the Government relies on most, Mathiason and
Behler, rest largely on the fact that the suspect came to the
station voluntarily (that is, he was not compelled). This implies
that if a suspect is compelled to go to the station, it would be a
factor in favor of custody.
        The Government further argues that Murphy suggests that
when a suspect is familiar with an interviewer and the interview
situation, concluding there was custody is inappropriate. See id.
(“Murphy’s regular meetings with his probation officer should
have served to familiarize him with her and her office . . . .”).
But while Jacobs and Sullivan had a ten-year relationship, it was
a cooperative one. While Jacobs was familiar with having
conversations with Sullivan, nothing in the record shows she
was familiar with Sullivan accusing her of federal offenses,
asking her confrontational and intimidating questions, and using
interrogation tactics on her.

                               17
       B.      Were Jacobs’ March and April statements
               involuntary?

            Statements made to a law enforcement officer are
inadmissable into evidence if the statements are “involuntary.” 11
Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973); see
also Colorado v. Connelly, 479 U.S. 157, 165 (1986)
(involuntary confessions violate the Due Process Clause of Fifth
and Fourteenth Amendments). A statement is given voluntarily
if, when viewed in the totality of the circumstances, it is the
product of an essentially free and unconstrained choice by its
maker. Schneckloth, 412 U.S. at 225; United States v. Swint, 15
F.3d 286, 289 (3d Cir. 1994). If an individual’s will is
overborne or that person’s capacity for self-determination is
critically impaired, her or his statements are involuntary.
Schneckloth, 412 U.S. at 225-26. A suspect’s background and
experience, including prior dealings with the criminal justice
system, should be taken into account in the voluntariness
inquiry. See Oregon v. Bradshaw, 462 U.S. 1039, 1046 (1983)


       11
        While “[s]tatements made by a defendant in
circumstances violating . . . Miranda . . . are admissible for
impeachment if their trustworthiness . . . satisfies legal
standards[,] . . . any criminal trial use against a defendant of his
involuntary statement is a denial of due process of law . . . .”
Mincey v. Arizona, 437 U.S. 385, 397-98 (1978) (emphases and
third omission in original) (citations and internal quotation
marks omitted).

                                18
(plurality); United States v. Velasquez, 885 F.2d 1076, 1086 (3d
Cir. 1989). A necessary predicate to a finding of involuntariness
is coercive police activity. Connelly, 479 U.S. at 167. Further,
there must be some causal connection between the police
conduct and the confession. Id. at 164. The burden is on the
Government to establish, by a preponderance of the evidence,
that a challenged statement was voluntary. Lego v. Twomey,
404 U.S. 477, 489 (1972). Before delving into voluntariness
particular to our case, we consider first whether Sullivan misled
Jacobs into believing that her statements about the Stewart drug
conspiracy were not in the mix for use against her.

              1.      Did Sullivan make an implied promise
                      that Jacobs’ statements regarding the
                      Stewart drug conspiracy would not be
                      used against her?

       A promise by a law enforcement officer may qualify as
coercion. United States v. Walton, 10 F.3d 1024, 1030 (3d Cir.
1993); United States v. Conley, 859 F. Supp. 830, 836 (W.D.
Pa. 1994). However, because “a law enforcement officer
promises something to a person suspected of a crime in
exchange for the person’s speaking about the crime does not
automatically render inadmissible any statement obtained as a
result of that promise.” Walton, 10 F.3d at 1028. Rather, a
promise—express or implied—is a factor (indeed, a potentially
significant one) in the totality of the circumstances inquiry as to
whether a statement was voluntary. Id.; Miller v. Fenton, 796

                                19
F.2d 598, 608 (3d Cir. 1986).

        The District Court examined Walton and Conley in
considering the promises of law enforcement officers in the
context of a voluntariness inquiry. Jacobs, 312 F. Supp. 2d at
629-31. In Walton, an agent of the Bureau of Alcohol,
Tobacco, and Firearms met with the defendant on a park bench.
10 F.3d at 1027. The agent and the defendant were high school
classmates and the agent told the defendant that his statements
would be “off the cuff.” Id. The defendant then made several
incriminating statements. Id. The Government sought to use
these statements in a subsequent prosecution against the
defendant. Id. In analyzing the totality of the circumstances,
our Court emphasized that the inquiry did not rest solely on the
promises made. Id. at 1030. However, this did not diminish the
significance of the promise itself: “[G]iven the uniquely
influential nature of a promise from a law enforcement official
not to use a suspect’s inculpatory statement, such a promise may
be the most significant factor in assessing the voluntariness of
the accused’s confession in the light of the totality of the
circumstances.” Id. (citing United States v. Shears, 762 F.2d
397, 401-04 (4th Cir. 1985)). We determined that the
defendant’s prior relationship with the agent, his comment that
the conversation would be “off the cuff,” and that the defendant
had no reason to believe that he was the subject of a criminal
investigation, taken together, rendered the defendant’s
statements involuntary. Id.


                                20
       In Conley a federal agent spoke with the defendant to
gain information about others involved in illegal activity. 859
F. Supp. at 833-35. At the initial meeting, the agent told the
defendant that he was willing to speak off the record and that
the defendant was not the target of the investigation. Id. at 833.
The agent also intimated that he was in a position to help the
defendant if he cooperated. Id. Several weeks later, the
defendant and the agent met at a hotel. Id. During that
conversation the defendant made numerous incriminating
statements. Id. at 834-35. The Government later sought to use
those statements in a prosecution against him. Id. at 832. The
Court determined that the statements were involuntary. Id. at
837. Although the Court noted that the “typical” indicators of
coercion were not present, the agent’s promise to speak off the
record and his friendly manner “combined to overcome
Conley’s reticence about making statements to the FBI.” Id.

       After reviewing Walton and Conley, the District Court
determined that Jacobs made both her March and April
statements involuntarily. Jacobs, 312 F. Supp. 2d at 631-32.
The crux of the Court’s involuntariness holdings is its finding
that Sullivan made an implied promise to Jacobs that her
statements regarding the Stewart drug conspiracy would not be
used against her.12 Id. at 632. It reasoned:


       12
         It is unclear from the District Court’s opinion whether
it found an implied promise as to both statements or only as to
those made in April. See 312 F. Supp. 2d at 631-32. We need

                               21
       Most importantly, [Jacobs’] ten year relationship
       with [] Sullivan, during which he assisted her in
       resolving criminal charges and the fact that she
       was not aware that she was a target in the instant
       criminal investigation and, in fact, provided
       helpful information in the investigation, in the
       Court’s view, establish, at least by implication,
       that whatever [Jacobs] said would not be used
       against her. Specifically, the implied promises by
       [] Sullivan deprived [Jacobs] of the ability to
       make a knowing and voluntary election of
       whether to make a statement to the FBI Task
       Force.

Id.

       The Government inveighs against this reasoning (and its
inevitable conclusion) in many ways. We address each in turn.

       (a) The Government begins by asserting that the District
Court “conclude[d] [erroneously] . . . that an implied promise
arose out of Jacobs’ status as a police informant.” (Emphasis
added.) However, the Court did not conclude this, for nowhere


not resolve this issue because, even giving Jacobs the benefit of
doubt (as we do) that the Court found an implied promise as to
the March statements, we conclude they were nonetheless
voluntary.

                               22
does it say that all informants have per se received an implied
promise not to have their statements used against them by virtue
of their status as informants. Rather, it explained that the
circumstances particular to this case gave rise to an implied
promise.

       (b) The Government next emphasizes that Jacobs was
regularly admonished that she could not engage in any unlawful
acts except as specifically authorized, and that she would be
prosecuted if she engaged in those acts. It is true that Jacobs
was on notice that she could be prosecuted for breaking laws
without prior authorization, and does not argue otherwise.
Rather, she argues she was not on notice that Sullivan might use
her statements against her.

        (c) The Government points out that Sullivan had assisted
Jacobs by speaking to prosecutors and then argues that any
promise could not have rendered Jacobs’ statements involuntary
because “[t]his court has repeatedly found . . . that even explicit
law enforcement ‘promises’ to refer the fact of a defendant’s
cooperation to prosecutors do not constitute unconstitutional
coercion” (citing United States v. Fraction, 795 F.2d 12 (3d Cir.
1986)).      However, Fraction does not apply and the
Government’s argument fails because the District Court did not
find a promise “to refer”; it instead found an implied promise by
Sullivan not to use Jacobs’ statements against her. Indeed, our
Court has stated that “given the uniquely influential nature of a
promise from a law enforcement official not to use a suspect’s

                                23
inculpatory statement, such a promise may be the most
significant factor in assessing the voluntariness of the accused’s
confession.” Walton, 10 F.3d at 1030. Furthermore, those
promises need not be the product of an express representation
and can arise out of an understanding or custom that has
developed over the years. See Brady v. United States, 397 U.S.
742, 743 (1970) (confession must not be “obtained by any direct
or implied promises, however slight”) (emphasis added)
(internal quotation marks omitted).

       (d) The next contention is that “the only possible implied
promise that could have arisen in this case is that . . . Sullivan
would have recommended to the relevant prosecutors that
[Jacobs] not be charged in connection with the Stewart
organization.” It does not support this conclusory statement
with any reasoning. Further, the statement is likely untrue, as
Jacobs could have inferred that, if Sullivan repeatedly went out
of his way to get her out of trouble, he would not then turn
around and affirmatively get her into trouble by using her
statements to him against her.

        (e) Attack is made on the District Court’s reliance that
Jacobs had been paid in the past for providing information, as
“at best . . . this prior history could only reasonably lead the
defendant to believe that she could be paid if she provided
useful information.” But presumably the Court was reasoning
that, because when Jacobs had provided helpful information in
the past she received money (i.e., was rewarded), it was

                               24
reasonable to anticipate the same result when she provided the
helpful information about the Stewart drug conspiracy. Even if
she was not to be rewarded, she would at least infer she would
not be punished by having the information used against her.
While past payments for information might not imply a promise
to forgo use of Jacobs’ current statements against her, the
payments nonetheless are a valid factor supporting the existence
of an implied promise.

        (f) The Government tries to minimize the damage of
Sullivan’s “cover you” statement. To recap, near the end of the
March 14 meeting Sullivan asked Jacobs if she had ever taken
a trip to Los Angeles for Stewart, and Jacobs replied she had
not. Sullivan then told Jacobs, “Listen[,] if you did, just tell me
. . . because if it comes out later, I can’t cover you.” The
Government is correct, of course, that this particular statement
cannot retroactively make involuntary what Jacobs said
beforehand in her March statements. However, it could make
Jacobs think that Sullivan would “cover her” (and thus not
affirmatively use her statements against her) if she gave him
information at the April 4 meeting. Furthermore, the statement
may indicate a general understanding between Jacobs and
Sullivan that existed throughout both meetings, i.e., that
Sullivan would cover Jacobs (and thus not use her statements
against her) as long as she let him know before “it c[a]me[] out
later” in what illegal activities she was involved.

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

                                25
conclusion of involuntariness, the Government turns to the
Court’s reliance on the fact that Jacobs did not know she was the
target of a criminal investigation and subject to possible
prosecution at the time of her statements. In Walton, we
concluded that

       [m]ost important [to the finding of an implied
       promise not to use the defendant’s statements
       against him] is that in arranging the “off the
       record” discussion with [the investigating official,
       the defendant] had no reason to believe that he
       was the subject of a criminal investigation; he
       knew only that he had been the subject of a
       regulatory inspection.

10 F.3d at 1030 (emphasis added). The Government is correct
that, at the time of the March statements, the FBI had not begun
an investigation and thus Jacobs was not yet a suspect.13 Thus,
the argument proceeds, Sullivan did not coercively mislead


       13
        The District Court reasoned, in part, that on March 14
Jacobs “had no reason to believe that she was the target of a
criminal investigation and subject to possible criminal
prosecution . . . .” 312 F. Supp. 2d at 631. This statement
implies the District Court found that Jacobs was a target of a
criminal investigation on March 14. As the investigation of the
Stewart organization did not begin until after March 14, Jacobs
was not a target at that time.

                               26
Jacobs on March 14 into thinking she was not the subject of an
investigation.

         Turning to the April statements, the Government notes
that Sullivan began the meeting by telling Jacobs that he
believed she was involved in the conspiracy. However, this
does not necessarily mean that Jacobs knew she was the target
of a criminal investigation and subject to possible prosecution
at the time of the April statements. That Jacobs continued to act
as an informant rather than a suspect throughout that meeting
and during the next day (when she retrieved the suitcases from
her home and led Agent Duffey to the safe house) suggests that
she did not know she was the target of a criminal investigation
and subject to possible prosecution at the time of her April
statements.

       (h) Finally, the Government argues as a fallback that,
assuming Sullivan did implicitly promise not to use Jacobs’
statements against her, his promise did not cause her to confess.
However, there is no evidence that Jacobs wanted to confess a
serious crime to an FBI agent who would try to use that
confession to put her in prison. Had Jacobs known Sullivan was
an adversary who would use her statements to convict
her—rather than believed he was an ally who would not use her
statements against her—it is hard to believe she would have
made the statements she did.

                         * * * * *

                               27
       All these arguments and our responses aside, we need
not determine whether there was an implied promise. Instead,
we conclude that Sullivan’s behavior in relation to Jacobs
during their ten-year relationship gave her reason to believe that
he was significantly less likely than an average law enforcement
official would be to use her statements against her, but more
likely than if he had explicitly promised not to use her
statements. Making this determination is preferable to skewing
the totality of the circumstances calculus by forcing a
determination of “promise” or “no promise” when the real
answer is “something in between.” Thus, Jacobs’ decision to
make the statements to Sullivan, with whom she had cooperated
successfully for a decade, was significantly less “voluntary” and
“knowing” than it would have been had she made it to an
official with whom she has no prior relationship, and more
voluntary and knowing than it would have been had Sullivan
explicitly promised not to use her statements. It is sufficient
that we recognize this and consider it in the totality of the
circumstances inquiry of the voluntariness of the March and
April statements.

              2.     W ere    the       M arch      statements
                     involuntary?

       The Government argues that the March 14 meeting was
“the archetype of a voluntary encounter.” For the most part, we
agree. The voluntariness inquiry examines the totality of the
circumstances surrounding statements, and most of the

                               28
circumstances of the March statements indicate voluntariness.
Jacobs was the one who initiated that meeting with her phone
call to Sullivan. She controlled when it took place (March 14,
2000) and where (her hotel). In addition, she chose what was
discussed (the Stewart drug organization). We recognize that
Sullivan’s behavior in relation to Jacobs during their ten-year
relationship gave her reason to believe that Sullivan was
significantly less likely than an average FBI agent to use her
statements against her. Yet we nevertheless conclude that
Jacobs’ March statements were voluntary because most of the
circumstances of the March statements point to her willingness
to speak by her own choice.

              3.      Were the April statements involuntary?

        The April meeting presents a far different picture than the
March meeting. The April statements were not offered at
Jacobs’ request and the meeting was neither held on her terms
nor at the location of her choosing. Further, four of the same
factors indicating that Jacobs was in custody on April 4 also
suggest that her statements on that date were involuntary: (1)
Jacobs was summoned to FBI offices without explanation; (2)
Sullivan’s questions were confrontational and intimidating; (3)
he used interrogation tactics, including placing the
incriminating suitcases in Jacobs’ view; and (4) Jacobs did not
agree to meet with Sullivan with knowledge of the fact that
questioning about a criminal offense would take place.


                                29
        In addition, toward the end of the March meeting,
Sullivan asked Jacobs if she had ever taken a trip to Los
Angeles for Stewart, and Jacobs said that she had not. As
already noted, Sullivan then told Jacobs, “Listen[,] if you did,
just tell me . . . because if it comes out later, I can’t cover you.”
This statement likely made Jacobs think that Sullivan would
“cover her” (and thus not affirmatively use her statements
against her) if she gave him information at the April meeting.

        Further, Jacobs believed her April conversation with
Sullivan to have been between informant and law enforcement
contact, not suspect and policeman. She was not advised that
her statements might be used against her in a later criminal
prosecution. When she left the FBI office, Sullivan told her she
should go home and think about what she wanted to do
regarding further cooperation with the FBI. On April 5, she
provided the FBI with additional information, giving Duffey the
suitcases and leading him to the safe house where Robert
Shepard, a target of the FBI’s investigation, was located. Thus
Jacobs did not know she was the target of a criminal
investigation and subject to possible prosecution at the time of
the April statements. In Walton, this was the “[m]ost
important” factor to our involuntariness holding. 10 F.3d at
1030.

        Finally, Sullivan’s behavior in relation to Jacobs during
their ten-year relationship gave her reason to believe that
Sullivan was significantly less likely than an average police

                                 30
official to use her statements against her.       First, he had
previously authorized her to engage in criminal activity, and
specifically to transport drugs. Further, he had paid her several
thousand dollars for information. Because when Jacobs had
provided helpful information in the past she was rewarded, it
was reasonable to anticipate the same result when she provided
helpful information about the Stewart drug conspiracy. Even if
she was not to be rewarded, she would at least infer she would
not be punished by having the information used against her.
Finally, on numerous occasions Sullivan had assisted Jacobs
when she engaged in unauthorized criminal activities. Jacobs
could have reasonably inferred that, if Sullivan repeatedly went
out of his way to get her out of trouble that she was already in,
he would not then turn around and affirmatively get her into
trouble by using her statements to him against her.

      We thus conclude that Jacobs’ April statements were
involuntary.

                         * * * * *

       In this context, we hold that Jacobs’ March statements
were voluntary, but that her April statements were involuntary
and taken in violation of Miranda. Accordingly, we will
reverse the District Court’s order suppressing the March
statements, and we will affirm the District Court’s order
suppressing the April statements.


                               31
ALDISERT, Circuit Judge, concurring in part and dissenting in
part:

       I am pleased to join in the portion of the majority opinion
affirming the District Court’s judgment with respect to the April
4, 2000 statements (“the April 4 statements”). I must
respectfully dissent, however, from the majority’s opinion
insofar as it concludes that the March 14, 2000 statements (“the
March 14 statements”) were voluntary. I do not believe that the
District Court’s finding that there was an implied promise not to
use Jacobs’ March 14 statements against her was clearly
erroneous. Accepting this finding as correct, I agree with the
District Court that the March 14 statements were involuntary,
and accordingly should be suppressed. I would therefore affirm
the District Court’s judgment.

                                I.

       In determining that Jacobs’ March 14 statements were
involuntary, the District Court relied on the following six
factors:


       a. The ten year law enforcement officer/informant
       relationship between the Defendant and SFO
       Sullivan that produced significant and substantial
       information to law enforcement agencies;
       b. At the time she was summoned to the
       Wilmington FBI Office, the Defendant had no

                               32
      reason to believe that she was the target of a
      criminal investigation and subject to possible
      criminal prosecution;
      c. Although no specific promises of assistance
      were made, SFO Sullivan had assisted the
      Defendant on numerous occasions in the past in
      regard to her involvement in criminal matters,
      asking prosecutors and probation officers to be
      lenient on Defendant;
      d. The Defendant had been authorized in the past
      to engage in criminal activity, specifically to
      transport drugs and be in the presence of drug
      activity on more than one occasion;
      e. The Defendant had been specifically authorized
      to engage in the drug conspiracy that was the
      subject of the questions Defendant was subjected
      to by SFO Sullivan;
      f. Although no specific promises of payment
      were made, the Defendant had received payments,
      for the information that she provided, of
      approximately $3,450 from August 1997 through
      January 2000, two months before the statement at
      issue was made.

United States v. Jacobs, 312 F. Supp. 2d 619, 631 (D. Del.
2004).

      As an initial matter, I agree with the Government that

                             33
several of the factual findings relied upon by the District Court
are clearly erroneous. First, I believe that the District Court’s
statement that Jacobs was summoned to the Wilmington FBI
Office on March 14, 2000, is clearly erroneous. It conflicts with
the District Court’s own “findings of fact” section, which states
that “Defendant contacted SFO Sullivan by calling his cell
phone at approximately 6:00 p.m.” See id. at 624.

       Second, the District Court’s opinion erroneously implies
that Jacobs was already “the target of a criminal investigation
and subject to possible criminal prosecution” at the time of her
meeting with Sullivan. In fact, Jacobs was not a target of a
criminal investigation until after the March 14 meeting. See id.
at 625 (stating that it was not until March 29, 2000, that a
second source provided information implicating Jacobs in the
drug ring).

       Third, I believe that the District Court’s finding that
“[t]he Defendant had been specifically authorized to engage in
the drug conspiracy that was the subject of the questions
Defendant was subjected to by SFO Sullivan” is clearly
erroneous because there is no support for it in the record.
Indeed, the testimony in the record is to the contrary; Jacobs had
never even mentioned Bruce Stewart to her FBI handlers prior
to March 14, 2000.

                               II.



                               34
       That some of these factual findings were erroneous,
however, does not vitiate the District Court’s finding that there
was an implied promise not to use Jacobs’ statements against
her. The District Court concluded that all the factors taken
together “establish, at least by implication, that whatever the
Defendant said would not be used against her,” and that the
implied promise “deprived [Jacobs] of the ability to make a
knowing and voluntary election of whether to make a statement
to the FBI Task Force.” 14 Id. at 632.

        The District Court’s conclusion that the FBI impliedly
promised Jacobs that her statements would not be used against
her is a finding of fact. See United States v. Braxton, 112 F.3d
777, 783 (4th Cir. 1997) (applying clear error standard to district
court’s finding that officer’s statement constituted an implied
promise); cf. United States v. Strawser, 739 F.2d 1226, 1229



        14
          After noting that it had considered all of the facts supporting
its conclusion, the District Court stated: “Most importantly, the
Defendant’s ten year relationship with SFO Sullivan, during which he
assisted her in resolving criminal charges and the fact that she was not
aware that she was a target in the instant criminal investigation and,
in fact, provided helpful information in the investigation, in the
Court’s view, establish, at least by implication, that whatever the
Defendant said would not be used against her.” Id. at 632. As
discussed above, Jacobs was not a target on March 14, 2000. The
District Court, however, was discussing both the March 14 statements
and the April 4 statements in this passage, and I interpret this
reference to refer only to the April 4 statements.

                                   35
(7th Cir. 1984) (“In this case we hold that the district court was
not clearly erroneous in its finding that the government made no
express or implied promises [that induced defendant’s guilty
plea].”); Kingsford v. Salt Lake City School Dist., 247 F.3d
1123, 1132 (10th Cir. 2001) (holding that the existence of an
implied-in-fact promise to terminate for cause is a question of
fact for the jury).15 Although the District Court’s ultimate


        15
           I recognize that the distinction between questions of fact
and mixed questions of law and fact is often elusive. See Miller v.
Fenton, 474 U.S. 104, 113 (1985) (“[T]he Court has yet to arrive at
‘a rule or principle that will unerringly distinguish a factual finding
from a legal conclusion.’”) (citations omitted). To be sure, there are
some legal standards applicable to implied promises. For example,
in Fraction this Court noted that the existence of an implied promise
is judged from the defendant’s, rather than the officer’s, perspective.
United States v. Fraction, 795 F.2d 12, 15 (3d Cir. 1986). But the
mere existence of relevant legal standards does not automatically
transform a question of fact, which is reviewed for clear error, into a
mixed question of law and fact, which is reviewed de novo. Indeed,
the existence a promise has long been held to be question of fact. See
Williston on Contracts § 8:5, at 102 (Richard A. Lord ed. 4th ed.
1992) (“[T]he existence and scope of promises are questions of fact,
and a determination that a promise exists will not be overturned on
appeal unless it is clearly erroneous.”). Moreover, as a matter of
judicial allocation, trial courts are far better suited to decide whether
a promise arose out of a given set of facts. See Miller, 474 U.S. at
113-114 (“[T]he decision to label an issue a ‘question of law,’ a
‘question of fact,’ or a ‘mixed question of law and fact’ is sometimes
as much a matter of allocation as it is analysis.”). Unlike the ultimate
determination of “voluntariness,” the existence of a promise is not a

                                   36
determination of whether a statement was voluntary is a legal
determination subject to plenary review, we review the factual
findings underlying that determination for clear error. United
States v. Walton, 10 F.3d 1024, 1027 (3d Cir. 1994); see also
Miller v. Fenton, 474 U.S. 104, 115 (1985). Accordingly,
absent clear error, this Court may not disregard the District
Court’s finding of an implied promise.

        We have recently re-iterated that “[u]nder the clearly
erroneous standard, ‘a finding of fact may be reversed on appeal
only if it is completely devoid of a credible evidentiary basis or
bears no rational relationship to the supporting data.’” Shire US
Inc. v. Barr Labs., Inc., 329 F.3d 348, 352 (3d Cir. 2003)
(quoting American Home Prods. Corp. v. Barr Labs., Inc., 834
F.2d 368, 370-371 (3d Cir. 1987)).

        The Government argues that the District Court’s finding
is clearly erroneous because “there is no evidence in the record
to support either an objective or subjective belief by the
defendant that her statements to SFO Sullivan would not be used
against her.” Although I agree that evidence for this conclusion
is scant, I cannot agree that it is nonexistent. Certain matters are
clear. Sullivan never made an express promise of immunity.
Furthermore, no finding of fact indicates that Jacobs had
previously admitted unauthorized criminal conduct to Sullivan,


legal principle that “can be given meaning only through its
application to the particular circumstances of a case.” Id. at 114.

                                37
or that Sullivan had failed to use any admission against her.

        Even in the absence of an express promise of immunity,
however, I believe that the course of dealings between Jacobs
and Sullivan provides a rational basis for the District Court’s
conclusion that Jacobs reasonably understood there to be a
promise not to use her statements against her. The District
Court heard testimony regarding the ten year relationship
between Sullivan and Jacobs, during which Jacobs provided
substantial information to Sullivan regarding numerous criminal
investigations. Jacobs had been financially compensated for this
information, and Sullivan had talked to law enforcement and
courts on Jacobs’ behalf on several occasions when she had
criminal charges pending against her. Jacobs had also been
authorized to engage in drug purchases on numerous occasions,
most recently from February 24, 1999, to May 27, 1999. Even
when she was not specifically authorized to engage in criminal
activity, she would contact Sullivan whenever she obtained
information pertinent to some criminal activity. Although this
evidence is not overwhelming, I cannot conclude that the
circumstances detailed above do not rationally support the
District Court’s finding of an implied promise.

                              III.

       Having determined that the District Court’s finding of an
implied promise was not clearly erroneous, the next question is
whether, accepting this finding as correct, the District Court

                              38
erred in determining that the statements were involuntary.

        Over a century ago, the Supreme Court held that
statements are involuntary when “obtained by any direct or
implied promises, however slight.” Bram v. U.S., 168 U.S. 532
(1897). The existence of a promise, however, “does not
automatically render inadmissible any statement obtained as a
result of that promise.” Walton, 10 F.3d at 1028. Rather, a
promise, either express or implied, is a factor in the totality of
the circumstances inquiry of whether a statement is voluntary.
See id. at 1028; see also Miller v. Fenton, 796 F.2d 598, 608 (3d
Cir. 1986) (“[P]romises do not trigger an analysis different from
the totality of the circumstances test.”). Nonetheless, a promise
may often be “the most significant factor in assessing the
voluntariness of an accused’s confession in light of the totality
of the circumstances.” Walton, 10 F.3d at 1030.

        Here, the totality of the circumstances supports the
District Court’s determination that Jacobs’ statements were
involuntary. Although, as the majority points out, Jacobs
initiated the March 14, 2000 meeting and selected the location,
I do not believe that these circumstances render the statement
voluntary. See United States v. Conley, 859 F. Supp. 830, 837
(W.D. Pa. 1994) (holding that although the typical indicators of
coercion were not present, agent’s promise to speak off the
record and his friendly manner “combined to overcome
Conley’s reticence about making statements to the FBI”). The
involuntariness here stemmed from Jacobs’ belief that she could

                               39
bring information to Sullivan and that he would not later use the
information against her. Had there been no such perceived
understanding, Jacobs would not have subjected herself to
criminal liability by delivering potentially incriminating
information to Sullivan. The March 14 statements were
therefore the direct product of the implied promise, and cannot
be considered voluntary. Accordingly, I believe that the totality
of the circumstances supports the District Court’s conclusion
that the March 14 statements were involuntary.

                              IV.

       Although I admit that this is a close case, I would affirm
the District Court. The existence of an implied promise is a
finding of fact, and it cannot be said that the District Court
committed clear error in determining that the surrounding
circumstances gave rise to an implied promise. Having accepted
the District Court’s finding that there was an implied promise,
I agree with its conclusion that the March 14 statements were
involuntary and should be suppressed. I respectfully dissent.




                               40
