           ___________

           No. 95-3572
           ___________

United States of America,              *
                                       *
           Appellant,                  *
                                       *
     v.                                *
                                       *
Cirilo Mendoza,                        *
                                       *
           Appellee.                   *

           ___________
                                            Appeals from the United States
           No. 95-3573                      District Court for the
           ___________                      Southern District of Iowa.

United States of America,           *
                                    *
           Appellant,               *
                                    *
      v.                            *
                                    *
Cirilo Mendoza, Martha Wheeler,     *
                                    *
           Appellees.               *
                               ___________

                   Submitted:      March 13, 1996

                          Filed:   June 11, 1996
                                   ___________

Before FAGG, BRIGHT, and WOLLMAN, Circuit Judges.
                               ___________


WOLLMAN, Circuit Judge.


     Pursuant to 18 U.S.C. § 3731, the government appeals from two orders
entered by the district court suppressing as evidence statements made by
defendant Martha Wheeler.     The first order granted Wheeler's motion to
suppress evidence on the basis that her statements were involuntary, and
the second order precluded the government from using Wheeler's statement
implicating co-defendant Cirilo Mendoza, on the theory that the statement
was inadmissible
hearsay.   We affirm in part and reverse in part.


                                      I.    Background


       On July 28, 1995, agents of the Drug Enforcement Administration (DEA)
and the Iowa Division of Narcotics Enforcement (DNE) executed a search on
Carmella Sue House's residence.            House agreed to cooperate with the agents
after they discovered evidence of drug activity.                  House told the agents
that her source of methamphetamine was a person named Martha Wheeler and
that Wheeler's source was a person named Cirilo.                  She also informed them
of the details of a methamphetamine purchase she was to make later that
day.   According to House, one pound of methamphetamine, which was to cost
her $16,000, was to be placed next to a tire and a metal pipe beside a
gravel road in a wooded area.


       While   the   agents    were    at     House's    residence,      House    received   a
telephone call from Wheeler.           Wheeler and House arranged to meet so that
House could pay Wheeler for the methamphetamine that was to be delivered
later that day.        One of the agents accompanied House to the prearranged
meeting place while several other agents followed.                  The agents observed
Wheeler get into House's vehicle and accept a payment of approximately
$16,000.       While    inside   the       vehicle,     Wheeler   told    House    that   the
methamphetamine would be delivered later that day to the drop site that had
been used previously.         As Wheeler exited House's vehicle and returned to
her own, DNE Agent Dan Stepleton approached Wheeler and identified himself
as a law enforcement officer.              After retrieving the $16,000 payment from
Wheeler's purse, Stepleton advised Wheeler that he knew that she had
received the money as payment for methamphetamine and that he was seeking
her cooperation in finding her source.                  After advising Wheeler of her
Miranda rights, Stepleton got into Wheeler's vehicle and directed her to
drive to the Muscatine County Drug Task Force office which was located a
few blocks away.       While en route to the office, Stepleton told Wheeler that
if she did not cooperate, she




                                              -2-
would be arrested immediately.


     Wheeler was again advised of her Miranda rights by DEA Agent David
Mizell upon her arrival at the Drug Task Force office parking lot.   Mizell
told Wheeler that he knew she was involved in a methamphetamine transaction
but that she was not under arrest and would not be charged at that point.
After Mizell told Wheeler that he could not make any deals concerning the
charges but that he would make her cooperation known to the United States
Attorney, Wheeler agreed to cooperate.


     Wheeler gave a general description of the drop site location that
coincided with the description given by House.     She then pointed out two
possible drop site locations to the agents and     returned to her house to
wait for a telephone call from her source.    She was permitted to drive her
own vehicle to the drop site locations and to her house.   While waiting for
the telephone call, Wheeler told the agents that her source was a Mexican
male named "Beaner."     Later, she said that her source's true name was
"Jose."   She confirmed that he was to deliver the drugs to a rural location
in Muscatine County and place them in a culvert, a tire, or a pipe that was
located near a gravel road.   Wheeler told the agents that she had delivered
one-pound quantities of methamphetamine to House on three prior occasions.
She also mentioned that she had a boyfriend named Cirilo Mendoza but that
he was not involved in the transaction.


      After receiving a telephone call informing them that a suspect had
been arrested near one of the drop site locations, the agents left
Wheeler's residence and recovered one pound of methamphetamine in a culvert
by a gravel road in Muscatine County.         Thereafter, they returned to
Wheeler's residence and confronted her with the fact that Mendoza had been
arrested near the drop site location.     Wheeler then admitted that Mendoza
had gone to the location to deliver the methamphetamine.




                                    -3-
        Wheeler and Mendoza were charged with conspiring to distribute and
possess methamphetamine in violation of 21 U.S.C. § 841(a)(1).                             Wheeler
filed a motion to suppress her July 28th statements.                          Mendoza moved to
sever his trial from Wheeler's on the theory that Wheeler's statements were
inadmissible hearsay as to him.              On September 29, 1995, the district court
granted Wheeler's motion to suppress, finding that the statements were not
voluntarily made.         On the same day, the district court denied Mendoza's
motion to sever, concluding that the issue was moot because of its ruling
on Wheeler's motion to suppress.


          The    government      timely       appealed       the    district     court's      order
suppressing Wheeler's statements.               After receiving notice of the appeal,
the district court entered an order severing the defendants' cases for
trial.        Wheeler's trial was continued so that the appeal could be
processed, but Mendoza's trial was set to proceed as scheduled on October
2, 1995.


        Prior to the start of Mendoza's trial, the district court entered a
clarification to the effect that its prior suppression order "did not
purport    or    intend   to    hold     that   the        evidence   of   the   statements      is
inadmissible against defendant Mendoza.                    That was a separate issue which
has been ruled on this date in a Rule 104(a) ruling."                      The district court
then    filed    an   order    precluding       the    government      from    using    Wheeler's
statement implicating Mendoza, on the theory that the statement was
inadmissible hearsay under Federal Rule of Evidence 804(b)(3).                         Later that
day, the government filed a notice of appeal from the second order.                              We
address both orders in this appeal.


                                       II.   Jurisdiction


        As a preliminary matter, Mendoza contends that because he was not a
party    to     the   first    order    entered       by    the    district    court,    we    lack
jurisdiction over the appeal as to him.                    Section 3731 states,




                                                -4-
in relevant part:


        An appeal by the United States shall lie to a court of appeals
        from a decision or order of a district court suppressing or
        excluding evidence or requiring the return of seized property
        in a criminal proceeding, not made after the defendant has been
        put in jeopardy and before the verdict or finding on an
        indictment or information, if the United States attorney
        certifies to the district court that the appeal is not taken
        for purpose of delay and that the evidence is a substantial
        proof of a fact material in the proceeding.



Because    the    district   court's   second    order   effectively      prevents   the
government from using Wheeler's statement to implicate Mendoza, we have
jurisdiction under section 3731.


                                    III.    Merits


A.   Voluntariness of Wheeler's Statements


        The government first contends that the district court erred in
finding that Wheeler's statements were not voluntary.              We review de novo
the ultimate issue of whether a confession is voluntary, but we review the
district court's factual findings underlying its decision for clear error.
United States v. Johnson, 47 F.3d 272, 275 (8th Cir. 1995) (citing United
States v. Casal, 915 F.2d 1225, 1228 (8th Cir. 1990), cert. denied, 499
U.S. 941 (1991)).       In determining whether a confession is voluntary, a
court    should    examine   the   circumstances     surrounding    the    confession,
including "`the conduct of the law enforcement officials and the capacity
of the suspect to resist pressure to confess.'"          Id. at 276 (quoting Casal,
915 F.2d at 1228).


        In assessing the voluntariness of Wheeler's statements, the district
court reasoned:




                                           -5-
        Were it not for the fact that Special Agent Stepleton told
        defendant Wheeler that she would be immediately arrested if she
        did not cooperate with the officers, I would probably conclude
        that all of her statements to the officers were voluntary. The
        totality of circumstances in this case includes, however, the
        fact that defendant Wheeler was told near the outset of events
        and before she made any statements, that the only alternative
        to cooperating with the officers was immediate arrest. That
        threat, which was made while defendant Wheeler was in a
        custodial situation, is a coercive facet in the totality of the
        circumstances.


In the light of the totality of the circumstances, we cannot agree that
Wheeler's will was overborne so as to make her statements involuntary.
First, the agents gave Miranda warnings to Wheeler on two occasions.                  The
fact that such warnings were given weighs in favor of a voluntariness
finding.     Wayne R. LaFave & Jerold H. Israel, Criminal Procedure 268
(1985).     In addition, the agents did not place Wheeler in handcuffs or
subject her to physical or emotional coercion.                  The first encounter by
Agent Stepleton took place on a street while Wheeler was in her own
vehicle.    The second encounter took place in the parking lot of the Drug
Task Force office.        Finally, the bulk of Wheeler's statements were made in
her own home.


        Further, during her encounter with the agents Wheeler was permitted
to drive her own car to the Drug Task Force office, to the possible drop
site locations, and to her house.            There was no lengthy interrogation by
the agents, nor did the agents use trickery or deceit to obtain Wheeler's
statements.      Moreover,      Wheeler      presented   no   evidence   that   she   was
particularly susceptible to police pressure.             Finally, the agents' promise
that they would make Wheeler's cooperation known to the United States
attorney did not transform an otherwise voluntary statement into an
involuntary one.     See United States v. Kilgore, 58 F.3d 350, 353 (8th Cir.
1995)     (promise   of     leniency,   by    itself,    does    not   make   confession
involuntary); United States v. Harris, 914 F.2d 927, 933 (7th Cir.




                                             -6-
1990) (police may solicit confession by offering to reduce charges against
defendant).


     The district court placed emphasis on Agent Stepleton's statement
that Wheeler would be arrested immediately if she did not cooperate.    We
conclude, however, that this single statement was not so coercive as to
deprive Wheeler of her ability to make an unconstrained decision to
confess.    See United States v. Hocking, 860 F.2d 769, 774 (7th Cir. 1988)
(FBI agents' threats that defendant faced criminal charges and imprisonment
did not make defendant's confession involuntary).   See also United States
v. Mendoza-Cecelia, 963 F.2d 1467, 1475 (11th Cir.) (suggestion by law
enforcement that defendant might suffer while serving long prison sentence
did not make ensuing statement involuntary), cert. denied, 506 U.S. 964
(1992); United States v. Nash, 910 F.2d 749, 752-53 (11th Cir. 1990)
(officer's discussion of realistic penalties for cooperative and non-
cooperative defendants did not make defendant's confession involuntary);
United States v. Meirovitz, 918 F.2d 1376, 1379 (8th Cir. 1990) (agents'
threats of long prison sentence if defendant failed to cooperate did not
make statements involuntary), cert. denied, 502 U.S. 829 (1991); Sumpter
v. Nix, 863 F.2d 563, 565 (8th Cir. 1988) (confession voluntary even though
defendant with below-average IQ was subjected to seven and one-half hour
interrogation with agent who played on his emotions); Cf. Kilgore, 58 F.3d
at 353 (statements voluntary despite evidence that defendant's motivation
in confessing was to recover his impounded vehicle and not spend the night
in jail).     We find persuasive the fact that Wheeler did not make any
incriminating statements or decide to cooperate until after Agent Mizell
had given her Miranda warnings and had told her that she would not be
arrested or charged that day.    Thus, we conclude that Wheeler's will was
not overborne by the agents when she decided to cooperate.




                                    -7-
B.   Admissibility of Statement Implicating Mendoza


      The government also contends that the district court erred in
prohibiting the use of Wheeler's statement to incriminate Mendoza, on the
theory that the statement was admissible under Rule 804(b)(3).     We review
a district court's ruling on admissibility of evidence for an abuse of
discretion.    United States v. Hazelett, 32 F.3d 1313, 1316 (8th Cir. 1994).



      Under Rule 804(b)(3),1 a statement is not excluded as hearsay if the
declarant is unavailable as a witness and the statement was against the
declarant's penal interest.     Before a statement is admitted pursuant to
Rule 804(b)(3), a three-prong test must be satisfied:


      [I]t must be shown that (1) the declarant is unavailable as a
      witness, (2) the statement must so far tend to subject the
      declarant to criminal liability that a reasonable person in the
      declarant's position would not have made the statement unless
      he or she believed it to be true, and (3) corroborating
      circumstances clearly




      1
          Rule 804 states, in relevant part:

              (b) Hearsay exceptions. The following are not
              excluded by the hearsay rule if the declarant
              is unavailable as a witness:
              . . . .
              (3) Statement against interest. A statement
              which as at the time of it making so far
              contrary to the declarant's pecuniary or
              proprietary interest, or so far tended to
              subject the declarant to civil or criminal
              liability, or to render invalid a claim by the
              declarant against another, that a reasonable
              person in the declarant's position would not
              have made the statement unless believing it to
              be true. A statement tending to expose the
              declarant to criminal liability and offered to
              exculpate the accused is not admissible unless
              corroborating circumstances clearly indicate
              the trustworthiness of the statement.


                                     -8-
       indicate the trustworthiness of the statement.



Id. (quoting United States v. Riley, 657 F.2d 1377, 1383 (8th Cir. 1981)).



       In Williamson v. United States, 114 S. Ct. 2431 (1994), the Supreme
Court addressed the manner in which courts should resolve the against-
penal-interest determination under Rule 804(b)(3).             In Williamson, Harris
was arrested when an officer discovered cocaine in the trunk of his rental
car.    Following his arrest, Harris gave a detailed account of his
involvement   in   a   cocaine   operation   and   made    statements    implicating
Williamson.   The Court recognized that "[t]he fact that a person is making
a broadly self-inculpatory confession does not make more credible the
confession's non-self-inculpatory parts."      Id. at 2435.       The Court remanded
the case, holding that "[t]he district court may not just assume for
purposes of Rule 804(b)(3) that a statement is self-inculpatory because it
is part of a fuller confession, and this is especially true when the
statement implicates someone else."      Id.


       As the Seventh Circuit noted, Williamson rests on the premise that
"[p]ortions of inculpatory statements that pose no risk to the declarants
are not particularly reliable; they are just garden variety hearsay."
Carson v. Peters, 42 F.3d 384, 386 (7th Cir. 1994).              Thus, courts "must
separate the incriminating portions of statements from other portions" of
the statements because "portions of a confession that do not inculpate the
declarant are not reliable enough for prosecutors to use against anyone
other than the declarant."       Id.


       In Hazelett, we applied the standards set forth in Williamson.             In
that case, King was arrested after a DEA agent discovered that she was
carrying drugs.        King agreed to cooperate with the authorities and
implicated Hazelett in a subsequent statement.            We




                                       -9-
held that King's statements incriminating Hazelett were inadmissible under
Rule 804(b)(3) inasmuch as "she had nothing to lose by confessing, and she
certainly had nothing to lose by implicating another person, particularly
someone more culpable."       Hazelett, 32 F.3d at 1318.


     Williamson required the district court to examine each portion of
Wheeler's statement to determine whether it tended to subject her to
criminal liability.      We agree with the district court that Wheeler's
statement    that   Mendoza    had   delivered   the   methamphetamine    was   not
sufficiently against her penal interest to warrant admission under Rule
804(b)(3).    Wheeler agreed to cooperate with authorities after she was
caught red-handed with $16,000 in drug money.          Initially, she denied that
Mendoza was involved in the transaction and named someone else as her
source.     It was only after the agents apprehended Mendoza near the drop
site location and confronted her with this fact that she pointed the finger
at Mendoza.    At that point, she had nothing to lose by implicating him.
Moreover, she may reasonably have believed that by implicating Mendoza she
would curry favor with the authorities and lessen her own punishment.           See
Hazelett, 32 F.3d at 1318.


     The district court's order prohibiting the government from using
Wheeler's statement to implicate Mendoza is affirmed.        The district court's
order granting Wheeler's motion to suppress is reversed.           The cases are
remanded for further proceedings consistent with this opinion.


BRIGHT, Circuit Judge, concurring in part and dissenting in part.


     I concur in that portion of the majority opinion concluding that
Wheeler's statements were inadmissible hearsay against Mendoza.          I dissent
from that portion of the opinion concluding that Wheeler's statements were
"voluntary" and thus admissible against her.




                                       -10-
       The question of voluntariness is a mixed question of law and fact.
As   the   majority     observes,     a   court    should   examine    the   circumstances
surrounding the confession, including the conduct of law enforcement
officials and the capacity of the suspect to resist pressure to confess.
Slip op. at 5 (citing United States v. Johnson, 47 F.3d 272, 275 (8th Cir.
1995)).      Although      government      agents    may    initiate    conversations    on
cooperation      without    rendering       a     confession     involuntary,    custodial
statements are presumed involuntary and the government must overcome the
presumption by a preponderance of the evidence.                  Tippitt v. Lockhart, 859
F.2d 595, 597 (8th Cir. 1988), cert. denied, 490 U.S. 1100 (1989).


       The majority does not seem to question the underlying crucial
findings of the district court that Wheeler was in a custodial situation
and that an officer visibly carrying a gun got in her car and told her that
she would be arrested immediately if she did not cooperate.                  This statement
was made before Wheeler talked.                 The basic question is whether these
matters served to coerce Wheeler's statements here in question given to the
officers.     The district court answered the question in the affirmative.
The district judge who heard the live witnesses stands in a superior
position    to   this    court   in   finding      that    the   conversation   and   other
circumstances continued their coercive effect to the time when Wheeler
spoke out.


       The facts support the trial court's findings of coerciveness.                  Those
findings are not clearly erroneous and lead to the ultimate conclusion of
involuntariness of the confession.              Cf. United States v. Kilgore, 58 F.3d
350,   353 (8th Cir. 1995) (acknowledging that suspect's will may be
overborne and capacity for self-determination critically impaired where
confession extracted by threats, violence, or direct or implied promises,
but finding no such extraction where officers simply promised suspect he
would not go to jail that same night and would retain the use of his
personal vehicle).




                                            -11-
       Accordingly, I dissent from that portion of the majority opinion
which concludes Wheeler's statements were voluntary and admissible against
her.   I believe the district court's opinion should be affirmed in its
entirety.


       A true copy.


            Attest:


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




                                   -12-
