16-3876-cr
United States v. Haak




                                In the
             United States Court of Appeals
                        for the Second Circuit


                           AUGUST TERM 2017

                             No. 16-3876-cr

                            UNITED STATES,
                              Appellant,

                                   v.

                              JOHN HAAK,
                           Defendant-Appellee.



             On Appeal from the United States District Court
                 for the Western District of New York



                        ARGUED: OCTOBER 4, 2017
                        DECIDED: MARCH 7, 2018




Before: RAGGI, HALL, CARNEY, Circuit Judges.

                           ________________
16-3876-cr
United States v. Haak


        On appeal from a suppression order entered in the United
States District Court for the Western District of New York (Vilardo, J.;
McCarthy,        M.J.),   the    United         States   challenges    the   court’s
determination that defendant’s statements were coerced in violation
of the Fifth Amendment by a law enforcement officer’s false promise
of immunity in return for cooperation.

        REVERSED AND REMANDED.



                                JAMES P. KENNEDY, JR. (Frank T. Pimentel,
                                Assistant United States Attorney, on the
                                brief), United States Attorney for the
                                Western District of New York, Buffalo,
                                New York, for Appellant.

                                DAVID R. ADDELMAN, David R. Addelman,
                                P.C., Buffalo, New York, for Defendant-
                                Appellee.




REENA RAGGI, Circuit Judge:

        Defendant John Haak stands indicted in the United States
District Court for the Western District of New York (Lawrence J.
Vilardo, Judge; Jeremiah J. McCarthy, Magistrate Judge) on one count
of possession with intent to distribute and distribution of the
controlled substance fentanyl resulting in death.                     See 21 U.S.C.
§ 841(a)(1), (b)(1)(C). The United States here appeals from the district
court’s October 18, 2016 order suppressing statements that Haak
made to law enforcement authorities in the course of a non-custodial
interview on March 4, 2015. See United States v. Haak, 215 F. Supp. 3d


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United States v. Haak


218 (W.D.N.Y. 2016). The district court concluded that the statements
had been coerced in violation of the Fifth Amendment by a police
detective’s false promise of immunity from prosecution in return for
cooperation. See id. at 231; U.S. Const., amend. V. Upon review of the
totality of the circumstances as reflected in a videotape recording of
the interview at issue, we conclude that Haak’s statements cannot be
deemed coerced. We, therefore, reverse the challenged suppression
order and remand the case for further proceedings consistent with
this opinion.

                             BACKGROUND

I.       Haak’s Non-Custodial Statements to Authorities


        A.       Haak Voluntarily Comes to the Police Station

        In early March 2015, Hamburg, New York police officers,
working on a joint federal-state task force with United States Drug
Enforcement Administration (“DEA”) agents, were investigating the
February 28, 2015 death of James Forness from an apparent overdose
of heroin laced with fentanyl. From a review of text messages found
on Forness’s cell phone, the police had identified defendant John
Haak as Forness’s likely drug supplier. Accordingly, they contacted
Haak and asked him to come to the police station. Haak voluntarily
did so on March 4, 2015, driving to the station in his own car and
leaving approximately forty minutes later. The parties agree that
Haak was never in custody throughout this time.

        B.       The Overall Context of the Interview

        At the station, Haak met with Detective Sergeant Glenn
Zawierucha and another officer not identified in the record. The


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meeting, which was held in a standard interview room and lasted
slightly over one-half hour, was video-recorded. Thus, neither the
conversational tone of the encounter, nor the conduct of the
participants, nor the actual words spoken are disputed.                            We
nevertheless describe the interview in some detail to facilitate our
discussion herein of why it does not manifest coerced statements.

        The video recording shows that the officers were dressed in
casual street clothes with no weapons visible. Meanwhile, Haak was
not handcuffed or otherwise restrained during the interview. Rather,
all three men simply sat in chairs across from or perpendicular to one
another.

        Zawierucha, who conducted the interview, introduced himself,
stating both his rank within the Hamburg police department and his
assignment to a joint police-DEA task force. Zawierucha told Haak
that he wanted to speak with him and that Haak “owe[d] it to
[him]self to at least listen to what [the detective] ha[d] to say.” Video
Recording, Mar. 4, 2015, at 13:20:23. 1 Then, even though Haak was
not in custody, Zawierucha advised him of certain Miranda rights,
first confirming that Haak was familiar with such rights from a prior
arrest. See Miranda v. Arizona, 384 U.S. 436, 444–45 (1966) (identifying
warnings        that    should     be    given      preliminary       to    custodial
interrogation). The detective told Haak that he had (1) “the right to
remain silent; you don’t even have to talk to me,” Video Recording,
Mar. 4, 2015, at 13:20:45; (2) the right “to speak with an attorney; you
can talk to one if you want before you talk to me; if you can’t afford

1The parties did not prepare a transcript of the video recording, which presents no
audibility problems. Accordingly, the statements quoted here are drawn from the court’s
own review. Any differences between these quotations and those of the district court are
minor and immaterial to resolution of this appeal.




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United States v. Haak


one, one will be provided for you,” id. at 13:20:48; and (3) the right
“anytime” to “end this whole conversation” and “walk out of here,”
id. at 13:20:57. 2 Zawierucha then stated that Haak had come in “on
[his] own,” and that the police would not be “keeping [him]”; they
just wanted “to talk” to him. Id. at 13:21:02.

        After confirming that Haak had understood everything said
thus far, Zawierucha asked if Haak had any idea why police wanted
to talk with him. Haak replied that he did not, other than to assume
that the police wanted his help “busting somebody.” Id. at 13:21:21.
After a brief, casual exchange about persons known to both men,
Zawierucha reiterated to Haak that he just wanted to have a
conversation and that Haak owed it to himself to hear what the
detective had to say. Zawierucha assured Haak that he would not
“blow smoke” or “bulls—t” him, and that Haak could make
“whatever decision you want to make, and we’ll go from there.” Id.
at 13:22:14. “In any case,” Zawierucha assured Haak, “you’re walking
out of here today”; “nobody is sandbagging you.” Id. at 13:22:23.
Haak nodded his head affirmatively during this exchange and, when
asked, said he understood.

        C.       Haak’s Initial Inculpatory Statements

        Zawierucha then came to the point of the interview:
“Obviously, you’re familiar with James Forness.” Id. at 13:22:33.
Haak agreed, whereupon Zawierucha asked him if he knew what had
happened to Forness. Appearing surprised by the question, Haak
said, “No, what happened to him?” Id. at 13:22:45. Rather than



2As the district court observed, the Miranda warning that Zawierucha neglected to give
Haak was that anything he said could be used against him.



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answer that question, Zawierucha asked Haak when he last spoke
with Forness, to which Haak replied, “a week ago, . . . Thursday or
Friday.” Id. at 13:22:54. Pressed as to whether it could have been
Saturday, Haak replied, “No.” Id. at 13:23:04.

        Zawierucha then told Haak that police had reviewed his cell
phone records as well as Forness’s text messages and—urging Haak
“just [to] sit and listen to me”—stated, “obviously, you’ve been
supplying him with some heroin.” Id. at 13:24:08. Haak nodded,
whereupon Zawierucha reiterated, “No secret.”            Id. at 13:24:14.
Zawierucha then started to quote a text message from Haak to
Forness on the Saturday afternoon of the latter’s death in which—
responding to a text message from Forness saying, “This is good
stuff”—Haak told Forness, “Be careful with it because [it has] fentanyl
in it.” Id. at 13:24:28. Zawierucha said he would “imagine [it was] a
mixture,” to which Haak responded, “I don’t know. It might have
been.” Id. at 13:24:32. When a moment later, Zawierucha repeated,
“you did tell him to be careful with it, because he said it’s good stuff,”
Haak nodded agreement. Id. at 13:24:42.

        Zawierucha then told Haak what had happened to Forness,
specifically, that on the Saturday these text messages were exchanged,
Forness had died from an overdose of fentanyl. Haak stated, “I had
no idea.” Id. at 13:25:01. Zawierucha then told Haak, “You were the
last person he was actually texting, and the heroin that he shot up
came from you.” Id. at 13:25:03. Haak first replied, “No, it didn’t,” id.
at 13:25:12, but when Zawierucha maintained that telephone records
and text messages showed “it did,” id. at 13:25:23, Haak said, “Okay,”
id. at 13:25:24.




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United States v. Haak


        D.       The Police Statements at Issue

        Only at that point, approximately five minutes into the
interview, and after Haak had already inculpated himself in
supplying the drugs that killed Forness, did Zawierucha make any of
the statements that the district court identified as coercive. We here
italicize these statements in detailing the ensuing conversation.

        Urging Haak to “sit back and take a breath,” id. at 13:25:27,
which Haak did, Zawierucha told him, “I’m not trying to screw with
you. I’m just trying to set some facts. Okay?,” id. at 13:25:30. Haak
said, “Okay,” id. at 13:25:33, whereupon Zawierucha continued, “You
didn’t mean to do anything to him. You sold him the heroin. I get
that. I get it. But your plug [i.e., source] with the heroin. Okay. You
got a couple of choices you can make right now,” id. at 13:25:36. Haak
nodded his head affirmatively as Zawierucha was speaking. The
following exchange then occurred:

        Zawierucha:        There’s a multi-county, federal
        investigation where people are gonna get wrapped up in
        a conspiracy charge for distributing heroin containing
        fentanyl. Primarily the people that are the direct people
        that distributed this, especially if it caused a death, are
        gonna be the number one targets.

        Haak: Okay.

        Zawierucha: You don’t need this s—t.

        Haak: No, I don’t.

Id. at 13:25:50.




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United States v. Haak


       After a brief, unrelated exchange about a case known to Haak
in which Zawierucha revealed himself to have been the arresting
officer, Zawierucha continued,


        I’m not looking to screw you over, not looking even to come
        after you on this. But you need to make a conscious
        decision. Okay? I told you you’re walking out of here.
        You are walking out of here. But there’s a death
        investigation that this department here is investigating
        along with the Drug Enforcement Administration,
        caused by heroin containing fentanyl that you sold to the
        deceased.

Id. at 13:26:35. As Haak nodded his head, Zawierucha told him,
“Technically, could look very bad for you. My assumption is there
was no intent on this.” Id. at 13:27:01.

        Zawierucha then asked Haak again whether he had known of
Forness’s death.        When Haak answered, “No, I, honest to God,
didn’t,” Zawierucha told him, “I believe you.” Id. at 13:27:10. The
detective then reiterated,

        I’m not looking to mess with you, I’m not looking to come after
        you, but you gotta get on board or you, you shut your mouth
        and then the weight of the federal government is gonna come
        down on you. But you obviously got this from somebody.
        Okay.

Id. at 13:27:17. Haak continued to nod his head.

        Zawierucha then told Haak that heroin-related deaths were
increasing and that law enforcement knew that some of the fentanyl
being mixed with heroin came from a common Mexican source.
Zawierucha said he was looking for Haak’s “cooperation on this so


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United States v. Haak


we can backtrack this and hopefully prevent some deaths.” Id. at
13:28:11.

        Zawierucha then reviewed some of the text message evidence
inculpating Haak in Forness’s death, including a 2:30 p.m. message
indicating that Haak was then en route to deliver the fatal drugs to
Forness. Asked if that sounded familiar, Haak said it did, except that
he “thought it was Friday.” Id. at 13:29:05. Zawierucha said he would
check the date, but continued,

        The heroin you sold [Forness], that you directly sold him,
        I’m just—no if, ands or buts about it, okay? That was, it
        came from you. He’s dead because he shot it into his
        veins. And that’s why I asked you if it had fentanyl in it.
        Now obviously you’ve got a plug that you got it from.
        That’s how you’re supporting yourself.

Id. at 13:29:21. Haak said he was “not really” making money dealing
drugs. Id. at 13:29:44. Asked if he was using heroin himself, Haak
admitted using one or two bags a day, some of it containing fentanyl.
The following exchange then ensued:


        Zawierucha: Alright, now here’s the thing. I’m going to
        ask you, and it’s your call. Either you can get on board, put
        the team jersey on here, play for this team, or you can be on the
        losing team.

        Haak (laughing): I don’t want to be on that team.

        Zawierucha: No? I’m just telling you, it’s as simple as
        that. I’m making an analogy here. I’m looking for your
        cooperation on this. But you’re going to save yourself a
        world of hurt. Alright? Who’s your plug?



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United States v. Haak


Id. at 13:30:16.

        E.       Haak Identifies Two of his Drug Suppliers

        Haak then identified his source as “Fran,” a male a little older
than he whose last name he did not know but whose phone number
he provided. Id. at 13:30:57. Haak stated that Fran dealt from various
locations, including Center Road and West Seneca Street.          Haak
explained that he had only started dealing directly with Fran some
four days earlier. The drugs he sold to Forness had come from Fran
through Haak’s friend Mark Schukraft.

        Asked how much heroin he had sold Forness, Haak said, “four
or five bags.” Id. at 13:34:39. Asked if those were the drugs he had
told Forness to be careful with, Haak replied, “Yeah.” Id. at 13:34:45.
Haak said he charged Forness $10 per bag. When Zawierucha said
the price was cheap, Haak remarked that he had sold the heroin for
cost, making no money on the deal. Asked if he was with Mark when
he acquired the heroin from Fran, Haak stated that he had driven
Mark to the transaction. Asked what Mark told him about the heroin,
Haak said he told him to “be careful” because it was “strong,” and
“he thinks it might have fentanyl in it.” Id. at 13:36:15.

        F.       Soliciting Haak’s Cooperation in a Controlled Buy

        Zawierucha then told Haak that news of Forness’s death was
“going to get out,” but should not get out through Haak: “Don’t go
spreading the word.” Id. at 13:36:51. Zawierucha quickly assured
Haak that Forness was, in fact, dead; that Haak was “not getting
sandbagged.” Id. at 13:37:14. Haak told Zawierucha he believed him,
whereupon the detective observed that he had told Haak at the start,
“You came in on your own; you’re going to leave on your own.” Id.

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at 13:37:18. Zawierucha then observed that Haak had stated that he
was willing to help the police and “forward some investigations for
the greater good of cleaning up your town, which is probably the right
thing to do.” Id. at 13:37:27. Haak nodded and said, “Yeah. Mm
hmm.” Id. at 13:37:33.

        As Zawierucha started to move to another point, Haak looked
at his cell phone and observed that he had to get his car home for his
mother, who had a “hair appointment” that afternoon. Id. at 13:38:01.
Zawierucha assured Haak they were not going to keep him much
longer and asked if Haak could give them another “five or eight
minutes.” Id. at 13:38:07. Haak replied, “Oh yeah, yeah.” Id. at
13:38:08.

        Zawierucha then discussed Haak making a controlled purchase
of heroin from Fran, asking the largest amount Haak thought he could
obtain: “Could you get a bundle?” Id. at 13:38:26. Haak replied that
Fran usually “deals in half-grams or grams.” Id. at 13:38:29. Asked if
that was how he had obtained the heroin from Fran, i.e., in grams that
he then bagged up himself, Haak stated, “I didn’t. No. Mark did it.”
Id. at 13:38:40. Haak then described how Mark re-packaged the
heroin. Asked how often he had accompanied Mark to buy heroin,
Haak said he had done so “a bunch . . . a couple of dozen [times], at
least.” Id. at 13:39:22. When Zawierucha stated, “but this was the first
time from this Fran,” Haak corrected him, “No, no, we usually get it
from Fran,” with whom they had been dealing for “a couple of
months.” Id. at 13:39:28. Haak further stated that Fran was now “cool
with me,” such that Haak could “go in alone” to make a purchase. Id.
at 13:39:42. Zawierucha then said to Haak, “I’m going to assume since
you put on the team jersey you’re willing to do that [i.e., make a
purchase] because you’re the one that’s going to benefit in this by


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United States v. Haak


your cooperation. Am I correct to assume that?” Id. at 13:39:47. Haak
replied, “Yes.” Id. at 13:39:57.

        For the final ten minutes of the interview, Zawierucha and
Haak discussed the anticipated controlled buy. In the course thereof,
Zawierucha asked Haak about his own heroin use and pressed him
as to whether he had given heroin to anyone other than Forness,
because “somebody else ends up dead, then you’ve got a problem.”
Id. at 13:42:57. Haak insisted that he had given drugs only to Forness.
He also denied knowing of any other persons to whom Mark had
supplied heroin.

        Zawierucha then told Haak,

        Obviously, this isn’t going to go away, this whole
        investigation. Alright. But I think you’re doing the
        absolute right thing by getting on board and that’s why I
        told you I think it behooves you to listen to what I had to
        say. I’m not going to hold you up. You need to be
        somewhere. But here’s the deal. In the near future, . . .
        we’re going to have you make one of these calls. You
        have no problem doing that?

Id. at 13:48:26. Haak said, “No.” Id. at 13:49:09.

        Zawierucha again pressed Haak as to any other persons who
might have received fentanyl-laced heroin, and Haak again denied
such knowledge. Zawierucha then emphasized the danger to Haak
himself in using heroin containing fentanyl. The men’s final exchange
was as follows:

        Zawierucha: [M]ost likely, you’re not going to get pulled
        into this thing because you’re helping us. Okay? And




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United States v. Haak


        I’m assuming you’re on board, and you want to help us
        because it’s the right thing to do.

        Haak: Yeah.

        Zawierucha: So nobody else dies from this s—t.

        Haak: Absolutely.

Id. at 13:52:11.        The men then stood up and shook hands, with
Zawierucha saying they would “be in touch,” and Haak laughing as
he said, “Well, you have my number, obviously.” Id. at 13:52:49.
Haak then left the police station.

II. Haak Arranges Two Controlled Buys and Is Then Charged by
      Federal Authorities with Drug Trafficking

        Over the next few days, Haak, working under the direction of
law enforcement authorities, arranged for two controlled purchases
of heroin from Francis (“Fran”) Tessina, who was then arrested. On
March 10, 2015, six days after the interview detailed above, a federal
complaint was filed charging both Haak and Tessina with
distributing and conspiring to distribute heroin in violation of 21
U.S.C. §§ 841(a)(1) and 846. Nine months later, on December 1, 2015,
a federal grand jury indicted Haak on the fentanyl possession and
distribution resulting in death charge now pending in this case. 3



3 On July 1, 2015, Tessina was indicted for possessing with intent to distribute and
distributing heroin and fentanyl on March 9 (Count One), and possessing with intent to
distribute heroin and fentanyl on March 10 (Count Two), in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C). See United States v. Tessina, No. 1:15-cr-00130-LJV-JJM-1, Dkt. No. 11.
Tessina pleaded guilty to both counts on March 29, 2017, and is awaiting sentencing. See
id., Dkt. Nos. 59 (minute entry), 94 (transcript). While Haak asserts that Tessina “entered
into a plea agreement with the Government,” Appellee’s Br. at 4, the plea transcript
indicates that he did not, see United States v. Tessina, No. 1:15-cr-00130-LJV-JJM-1, Dkt. No.
94 at 21.


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 III.    District Court Proceedings

        Before the district court, Haak filed an omnibus pre-trial
motion seeking, among other things, to suppress his March 4, 2015
statements to Detective Zawierucha. Haak argued that (1) he was not
properly advised of his Miranda rights in that he was not told that if
he could not afford an attorney, one would be appointed for him; and
(2) his statements were coerced by the threat that “‘the weight of the
federal government would fall on him’” if he did not cooperate. Govt.
App’x 30–31.

        Magistrate Judge McCarthy, to whom all pre-trial matters were
assigned, concluded that neither of Haak’s arguments warranted
suppression, the first, because the video recording showed that
Zawierucha did provide the allegedly omitted warning; and the
second, because the magistrate judge identified no impropriety in
threatening a defendant with prosecution if he did not cooperate.
Nevertheless, the magistrate judge ordered further briefing as to the
voluntariness of Haak’s statements in light of Zawierucha’s interview
representations that he was “‘not trying to screw with [Haak],’” “‘not
even looking to come after [him] on this.’”   Request for Additional
Briefing at 4–5 (emphasis in original). The magistrate judge also
expressed concern that Zawierucha had told Haak that “‘the weight
of the federal government [would] come down’ on him only if he
remained silent,” and had referenced cooperation as “‘putting on the
team jersey’” and “‘playing for this team’” because, in the magistrate
judge’s view, “who in their right mind would reasonably expect that
if they did so (by speaking up rather than remaining silent), they
would end up being prosecuted by their own ‘team’?”           Id. at 5
(emphasis in original).




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        After receiving additional briefing, the magistrate judge
recommended that the district court suppress Haak’s March 4, 2015
statements       as     involuntary   because   they   were   induced   by
Zawierucha’s false promise that, if Haak cooperated, “he would not
be prosecuted.” Report & Recommendation, July 8, 2016, at 11.

        The government filed objections to the magistrate judge’s
report with the district court, which rejected them and granted Haak’s
suppression motion. See United States v. Haak, 215 F. Supp. 3d at 222.
Like the magistrate judge, the district court concluded that
Zawierucha falsely “promised that in exchange for Haak’s
cooperation, he would not be charged.” Id. at 228. The district court
acknowledged that Zawierucha had not made such a promise “in so
many words”; nevertheless, it concluded that the message was “loud,
clear, and unmistakable.” Id. While acknowledging that all other
circumstances weighed in favor of voluntariness, the district court
determined that the implied promise of immunity overbore Haak’s
will and rendered his statements involuntary. See id. at 230.

        The government timely appealed, invoking this court’s
jurisdiction pursuant to 18 U.S.C. § 3731.

                                DISCUSSION

 I.      Standard of Review

        On appeal from a challenged suppression order, we review a
district court’s findings of fact for clear error, and its resolution of
questions of law and mixed questions of law and fact de novo. See
United States v. Bershchansky, 788 F.3d 102, 108 (2d Cir. 2015). Because
the March 4, 2015 interview was video-recorded, this case presents no
disputes of fact as to the actions taken, words spoken, or demeanor


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displayed by Detective Zawierucha or defendant Haak during that
non-custodial encounter.        The parties dispute only the legal
significance of certain words spoken by Zawierucha, specifically,
whether those words equated to a promise of immunity from
prosecution and whether that promise overbore Haak’s will so as to
render the challenged statements constitutionally involuntary.

        We review the legal significance of undisputed facts de novo.
See United States v. Bohannon, 824 F.3d 242, 248 (2d Cir. 2016)
(reviewing suppression order de novo where government challenged
application of Fourth Amendment legal standard to undisputed
facts); United States v. Davis, 326 F.3d 361, 365 (2d Cir. 2003) (reviewing
motion to suppress ruling de novo where “parties do not dispute the
relevant facts, but rather whether those facts gave rise to an unlawful
search and seizure”); see also United States v. Crumpton, 824 F.3d 593,
604, 607 (6th Cir. 2016) (stating, in determining adequacy of Miranda
warnings and whether defendant’s waiver was knowing and
voluntary, “[g]iven the undisputed words that were said and the
undisputed recording of them,” “the question before us is a legal one”
and insofar as “district court drew inferences from the undisputed
transcript and audio recording,” “those inferences speak to the legal
effect of the words that were said,” making “[d]e novo review . . .
applicable”); United States v. Wysinger, 683 F.3d 784, 793 (7th Cir. 2012)
(stating, in evaluating whether defendant invoked right to counsel
during videotaped interview, that dispute concerning “legal effect”
of undisputed words spoken is “question of law”).

 II.     Haak’s Statements Should Not Have Been Suppressed

        When, as here, a defendant seeks to suppress non-custodial
statements made to law enforcement authorities, the single issue



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before the court is whether the statements were voluntary, i.e., the
“product of an essentially free and unconstrained choice by [their]
maker,” Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973) (internal
quotation marks omitted), or coerced by police activity in violation of
constitutional rights not to incriminate oneself and due process, see
U.S. Const., amends. V, XIV; United States v. Allen, 864 F.3d 63, 80 (2d
Cir. 2017) (stating that “Supreme Court has ‘recognized two
constitutional bases for the requirement that a confession be
voluntary to be admitted into evidence: the Fifth Amendment right
against self–incrimination and the Due Process Clause of the
Fourteenth Amendment’” (quoting Dickerson v. United States, 530 U.S.
428, 433 (2000))).

        While “coercive police activity” is a “necessary predicate” to
holding a confession constitutionally involuntary, Colorado v.
Connelly, 479 U.S. 157, 167 (1986), a finding that police conduct is
“false, misleading, or intended to trick and cajole the defendant into
confessing” does not necessarily render the confession involuntary,
United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991). A court must
still make “specific findings . . . that under the totality of the
circumstances . . . the defendant’s will was overborne by the [police]
conduct.” Id.; see United States v. Corbett, 750 F.3d 245, 253 (2d Cir.
2014) (identifying “key” question to voluntariness is “whether the
subject’s will was overborne” (internal quotation marks omitted)).
The totality of circumstances generally fall into “three sets of
circumstances: (1) the characteristics of the accused, (2) the conditions
of interrogation, and (3) the conduct of law enforcement officials.”
Green v. Scully, 850 F.2d 894, 901–02 (2d Cir. 1988); see United States v.
Orlandez-Gamboa, 320 F.3d 328, 332 (2d Cir. 2003) (observing that,
whether voluntariness requirement derives from Due Process Clause



                                   17
16-3876-cr
United States v. Haak


or Fifth Amendment right against self-incrimination, “test for
voluntariness is well established and multi-faceted”).

        With these principles in mind, we consider the district court’s
conclusion that the third of these sets of circumstances, the conduct of
law enforcement officers in falsely promising Haak immunity from
prosecution, overbore Haak’s will and rendered his March 4, 2015
statements involuntary.

        A.       Haak’s Statements Made Before the Purported Promise
                 of Immunity Cannot Be Deemed Involuntary

        At the outset, we note that the first statements by Detective
Zawierucha that the district court identified to imply a promise of
immunity were made some five minutes into the recorded interview,
specifically at Video Recording, Mar. 4, 2015, 13:25:30, when the
detective said, “I’m not trying to screw with you.” By that time,
however, Haak had already made statements or given signs that a
jury could deem inculpatory. For example, when Zawierucha told
Haak that his own phone records together with Forness’s text
messages showed that “obviously, you’ve been supplying him with
some heroin,” Haak nodded his head in what could be understood as
agreement.         Id. at 13:24:08.   He also nodded his head when
Zawierucha twice attributed to him a text message received by
Forness on the afternoon of his death, telling him, “[b]e careful with
it” in response to Forness’s comment that “[t]his is good stuff.” Id. at
13:24:28. Haak then changed his answer from, “No, it didn’t,” id. at
13:25:12, when Zawierucha stated that the heroin that Forness “shot
up came from you,” id. at 13:25:03, to “Okay,” id. at 13:25:24, when
Zawierucha told him that telephone records and text messages
showed that “it did,” id. at 13:25:23.



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United States v. Haak


        Thus, even on the district court’s theory of coercion, there was
no basis to identify these exchanges, or any others occurring before
the purported promise of immunity, as involuntary. See Colorado v.
Connelly, 479 U.S. at 167.        That alone warrants reversal of the
suppression order to the extent it pertains to the part of the video
recording before 13:25:30.

        For reasons we proceed to explain, however, the totality of the
circumstances fails to show that any of Haak’s March 4, 2015
statements was constitutionally involuntary and, thus, we reverse the
suppression order in its entirety.

        B.       The Totality of Circumstances Does Not Show that
                 Haak’s Will Was Overborne by a False Promise of
                 Immunity

        This court has recognized that “[m]aterial misrepresentations
based on unfulfillable or other improper promises might perhaps
overbear a defendant’s will,” United States v. Ruggles, 70 F.3d 262, 265
(2d Cir. 1995), insofar as “they overcome his desire to remain silent,”
United States v. Gaines, 295 F.3d 293, 299 (2d Cir. 2002). A court will
not,     however,       readily   imply   an   improper   promise     or
misrepresentation from vague or ambiguous statements by law
enforcement officers. This is particularly so with respect to promises
of leniency. See id. (“[V]ague promises of leniency for cooperation . . .
generally will not, without more, warrant a finding of coercion.”);
United States v. Jaswal, 47 F.3d 539, 542 (2d Cir. 1995) (“Generally,
promises of leniency will not render a confession involuntary.”); see
also United States v. Guarno, 819 F.2d 28, 31 (2d Cir. 1987) (“[A]
confession is not involuntary merely because the suspect was
promised leniency if he cooperated with law enforcement officials.”).



                                     19
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United States v. Haak


        Acknowledging this precedent, the district court construed
Detective Zawierucha’s statements to Haak as more than vague
promises of leniency.        Rather, the district court concluded that
Zawierucha’s statements sent a “loud, clear, and unmistakable”
message that “in exchange for Haak’s cooperation, he would not be
charged.” United States v. Haak, 215 F. Supp. 3d at 228. In short, in the
district court’s view, Zawierucha secured Haak’s cooperation
through a false promise of immunity from prosecution, which
promise overbore Haak’s desire to remain silent. The totality of the
circumstances does not support this conclusion.

                 1.     Zawierucha Did Not Promise Haak Immunity

        To support its conclusion that Haak was coerced into making
incriminating statements by a promise of immunity, the district court
relied on the various statements highlighted in this opinion’s
Background section.         See supra pp. 7–10.   As the district court
acknowledged, none of the statements promise Haak “in so many
words” that he will not be charged with any crime if he cooperates
with the police.        United States v. Haak, 215 F. Supp. 3d at 228.
Nevertheless, the court concluded that such a promise could be
implied.      In fact, the only highlighted statements providing any
support for that conclusion are Zawierucha’s assertions that he was
not looking “to come after” Haak. Video Recording, Mar. 4, 2015, at
13:26:35 (“. . . not looking even to come after you on this”); id. at
13:27:17 (“I’m not looking to come after you”). All other highlighted
statements, by themselves, do not imply immunity in return for
cooperation.

        For example, Zawierucha’s initial statement that “I’m not
trying to screw with you,” id. at 13:25:30, when viewed in context,



                                     20
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United States v. Haak


communicates that Zawierucha was not attempting to deceive Haak
about either Forness’s death from fentanyl-laced heroin or the
evidence that showed Haak to be the person who had directly
supplied the deadly drug to Forness. 4                    Indeed, throughout the
interview, Zawierucha emphasized to Haak that Forness really was
dead and that the detective was not “sandbagg[ing]” Haak as to that.
Id. at 13:37:14. 5 Thus, Zawierucha’s statements that he is “not looking
to screw you over,” id. at 13:26:35, and “not looking to mess with
you,” id. at 13:27:17, 6 are more reasonably understood as assurances
of truthfulness and fair dealing than as promises of immunity.

        To be sure, the last two statements are followed by
Zawierucha’s assertions that he is “not looking even to come after you
on this,” id. at 13:26:35, and “I’m not looking to come after you,” id. at
13:27:17. Assuming these statements might be construed in some
contexts as a promise of immunity, that is hardly their only, or most
reasonable, construction here. How a police officer generally “comes
after” someone is by placing him under arrest. 7 Here, Zawierucha
repeatedly emphasized to Haak that he was not being placed under
arrest. Police were not “keeping” him that day, id. at 13:21:02, and


4 See generally Cambridge English Dictionary, https://dictionary.cambridge.org/us
/dictionary/english/screw (last visited Feb. 22, 2018) (including “deceive someone” among
American slang meanings of “screw”).

5See generally Merriam-Webster Learner’s Dictionary, http://www.learnersdictionary.com/
definition/sandbag (last visited Feb. 22, 2018) (stating “sandbag” is “used figuratively to
describe treating . . . someone unfairly”).

6  See generally Longman Dictionary of Contemporary English, https://www.
ldoceonline.com/dictionary/mess-with (last visited Feb. 22, 2018) (including “to deceive”
among meanings of phrasal verb “to mess with somebody / something”).

7  See generally Merriam-Webster Dictionary, https://www.merriam-webster.com
/dictionary/come%20after (last visited Feb. 22, 2018) (including “to try to find or capture
(someone you want to hurt or punish)” among meanings of phrasal verb “come after”).


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United States v. Haak


Haak would be “walking out of” the station, which is in fact what
occurred, id. at 13:22:23; see id. at 13:26:35; 13:37:20; 13:38:00; 13:48:38.
Viewed in this context, the “not looking to come after you” statements
are most reasonably understood to communicate that Zawierucha
had no present intent to arrest Haak, not that he was promising him
immunity from prosecution. Indeed, forbearance of arrest does not
foreclose future prosecution on indictment or information. While
police can promise the former, only prosecutors can promise
immunity from the latter. This is not to deny the possibility of police
exceeding their authority by improperly promising immunity. It is
simply to explain why such an improper promise should not readily
be implied here where (1) the words spoken—“not looking to come
after you”—can also signify forbearance of arrest, within police
authority; (2) police honored their promise not to arrest Haak; and
(3) all other circumstances indicate a “routine, benign, and
noncoercive” interview, United States v. Haak, 215 F. Supp. 3d at 228
(internal quotation marks omitted); see infra pp. 27–30.

        That conclusion is further supported by the fact that
Zawierucha effectively explained to Haak the reason he was not then
looking to arrest him: Haak was not among the “number one targets”
of an ongoing federal-state investigation into a larger scheme for the
distribution of fentanyl-laced heroin. Video Recording, Mar. 4, 2015,
at 13:25:50. That hardly communicated to Haak that he would never
be charged for his own criminal conduct. Indeed, Zawierucha told
Haak that his situation was very serious; he was caught up in a “death
investigation,” id. at 13:26:35, and evidence that he sold fentanyl-laced
heroin to the deceased—which evidence Zawierucha had already
detailed for Haak—“could look very bad for you,” id. at 13:27:01.
Nevertheless, Zawierucha told Haak that the detective assumed Haak



                                     22
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United States v. Haak


had not foreseen or intended death.      It was in that context that
Zawierucha told Haak, “I’m not looking to mess with you, I’m not
looking to come after you, but you gotta get on board or you, you shut
your mouth and then the weight of the federal government is gonna
come down on you.”          Id. at 13:27:17.     The message being
communicated was, thus, threefold: (1) Zawierucha had told Haak
the truth about both Forness’s death and the evidence inculpating
Haak in that death (“I’m not looking to mess with you”); nevertheless,
(2) Zawierucha was not then going to arrest Haak (“I’m not looking
to come after you”); but (3) Haak should not expect to remain at
liberty if he chose not to cooperate; rather, he would be prosecuted to
the full extent of federal law (“but you gotta get on board or you, you
shut your mouth and then the weight of the federal government is
gonna come down on you”).          The statements do not promise
immunity.

        The district court nevertheless concluded that when the last
two pronouncements are read together, they clearly offered Haak a
binary choice between having the weight of the federal government
come down on him or facing no charges at all in return for
cooperation. See United States v. Haak, 215 F. Supp. 3d at 229. This
binary construction is far from clear and unmistakable when
Zawierucha’s “not looking to come after you” statement, Video
Recording, Mar. 4, 2015, at 13:27:17, is construed, as we have already
explained, to reference forbearance of arrest rather than immunity
from prosecution. Nor is a different conclusion warranted by the
detective’s assertion that the full weight of the federal government
would come down on Haak if he chose not to cooperate. As the
magistrate judge recognized in rejecting Haak’s threat challenge to
this statement, see supra p. 14, there is nothing improper in police



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United States v. Haak


truthfully telling a defendant that he will be prosecuted to the full
extent of the law if he chooses not to cooperate. See United States v.
Pomares, 499 F.2d 1220, 1221–22 (2d Cir. 1974) (concluding that it was
neither unfair nor overreaching for agents soliciting cooperation to
tell defendant that he faced “heavy penalties”); accord United States v.
Bye, 919 F.2d 6, 9–10 (2d Cir. 1990); see also United States v. Braxton, 112
F.3d 777, 782 (4th Cir. 1997) (stating that “[t]ruthful statements” about
defendant’s “predicament are not the type of ‘coercion’ that threatens
to render a statement involuntary” (alteration in original) (internal
quotation marks omitted)). 8 More to the point, such statements do
not imply a promise of immunity in return for cooperation. See United
States v. Braxton, 112 F.3d at 782–83 (ruling officer’s statement “‘[i]f
you’re not coming clean . . . you can do five years,’” was “simply not
an implied promise of non-prosecution” and did not suggest that if
defendant “did ‘come clean’ he would not face jail time” (internal
quotation marks omitted)).

        In sum, neither the words spoken by Detective Zawierucha nor
the context in which he spoke them communicated a clear and
unmistakable promise of immunity in return for cooperation. Haak
was promised that he would not be arrested that day but, rather,
would be allowed to go home. What other consideration he would
receive for cooperation was left unspecified and, thus, cannot be
deemed coercive. See United States v. Gaines, 295 F.3d at 299; United
States v. Jaswal, 47 F.3d at 542.

        This conclusion is only reinforced by the fact that, at the end of
the interview, Zawierucha told Haak that “this [investigation] isn’t
going to go away.”           Video Recording, Mar. 4, 2015, at 13:48:26.

8Thus, to the extent Haak’s brief might be construed to revive his threat challenge, the
argument fails on the merits.


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16-3876-cr
United States v. Haak


Zawierucha did state that Haak “most likely” was “not going to get
pulled into this thing because you’re helping us.” Id. at 13:52:11.
Neither Haak nor the district court, however, cite this statement as
communicating a promise of immunity.             This is not surprising.
Something that is “most likely” to occur is not certain to occur. Thus,
the statement, at most, communicates a possibility, not a promise.
Moreover, “not going to get pulled into this thing” does not
necessarily equate to not going to be charged at all. It could as easily
indicate that Haak would most likely not be charged in the larger
heroin-with-fentanyl conspiracy that was the focus of investigation.

        Nor can a clear promise of immunity be implied from
Zawierucha’s employment of a “team” analogy to frame Haak’s
cooperation choice: “[e]ither you can get on board, put the team
jersey on here, play for this team, or you can be on the losing team. . . .
I’m looking for your cooperation on this. But you’re going to save
yourself a world of hurt.” Id. at 13:30:16. In concluding otherwise,
the magistrate judge asked, “who in their right mind would
reasonably expect that if they did so (by speaking up rather than
remaining silent), they would end up being prosecuted by their own
‘team’?” Request for Additional Briefing at 5. The answer is the
countless defendants who cooperate without immunity and with only
an expectation that they will be allowed to plead to lesser charges or
will be afforded an opportunity for a reduced sentence.

        The district court also thought the team analogy implied a
promise of immunity, highlighting Zawierucha’s statement that
“‘you’re gonna save yourself a world of hurt’” by joining what Haak
“thought was the winning team,” only to learn that “his teammates—
led by team captain Zawierucha—had deserted him,” when “[h]e was
charged with a crime, and ‘the weight of the federal government


                                    25
16-3876-cr
United States v. Haak


[came] down on [him].’” United States v. Haak, 215 F. Supp. 3d at 229
(second and third alterations in original). This reasoning does not
persuade for two reasons.

        First, the statement that Haak would save himself “a world of
hurt” by cooperating with the government is hardly a promise of
immunity. As already observed, countless defendants who enter into
cooperation agreements without immunity expect to save themselves
“a world of hurt” in any number of respects, most related to reduced
jail time.

        Second, Zawierucha’s “team” reference cannot imply a
promise of immunity because the analogy is routinely used—by law
enforcement officials, defense attorneys, even courts—to refer to
cooperators generally, the vast majority of whom do not receive
immunity. See, e.g., United States v. Coronado, No. 12-cr-83S, 2017 WL
2930573, at *12 (W.D.N.Y. July 10, 2017) (reporting exchange at which
agent soliciting cooperation asked defendant whether he wanted
agent to report to prosecutor that defendant was “on Team America,
and my recommendation is we lessen the blow”); Williams v. United
States, No. 00 Cr. 1008 (NRB), 2011 WL 3296101, at *13 (S.D.N.Y. July
28, 2011) (quoting summation in which defense attorney, attempting
to discredit prosecution witness, stated, “Whose team is he playing
for? Team USA. . . . Conspiracy to murder, attempted murder, [he]
could walk out with time served.”); Diaz v. NBC Universal, Inc., 536 F.
Supp. 2d 337, 338 (S.D.N.Y. 2008) (using analogy, court itself
characterizes “notorious heroin dealer, Frank Lucas” as having
“joined ‘Team America’” in cooperating against high-level drug
dealers); United States v. Heatley, 39 F. Supp. 2d 287, 297 (S.D.N.Y.
1998) (quoting defense counsel’s assertion that he considered it “a
sign that the government was ‘considering [Heatley] a member of


                                  26
16-3876-cr
United States v. Haak


Team USA already in asking for his help in bringing other people onto
the team’” (alteration in original)).                 Cooperators who join the
government’s “team” may expect to benefit from their actions, but the
usual benefit is leniency within a prosecution; it is not immunity from
prosecution.

        Thus, Zawierucha’s solicitation of Haak to join the government
team to “save yourself a world of hurt” did not imply immunity,
either by itself or when considered together with Zawierucha’s other
highlighted statements.

                 2.          The Totality of the Circumstances Does Not
                             Demonstrate that Haak’s Will Was Overborne by
                             Police Conduct

        In the absence of a false promise of immunity, there is no other
support in the totality of circumstances for the challenged
suppression order. Any ambiguity in the quoted police statements is
not enough to demonstrate coercion because, as the district court
recognized, and our own review of the undisputed facts confirms,
both Haak’s characteristics and the conditions of the interrogation
weigh in favor of holding Haak’s statements voluntary.

        Haak is an adult and, as the district court observed, “[h]is
actions before, during, and after” the recorded interview exhibit
maturity and “at least average intelligence.” United States v. Haak, 215
F. Supp. 3d at 227; see United States v. Ruggles, 70 F.3d at 265 (deeming
statements voluntary where, inter alia, “there is nothing in the record
to   indicate         that     [defendant]    lacks    maturity,   education   or
intelligence”).          Haak’s actions also exhibit attention to and
understanding of what is being said during the interview. Moreover,
as the district court noted, no circumstances suggest that Haak “is


                                             27
16-3876-cr
United States v. Haak


prone to coercion.” United States v. Haak, 215 F. Supp. 3d at 227.
Indeed, nothing indicates any reluctance by Haak to speak with the
police. To the contrary, Haak voluntarily went to the police station
on the stated assumption that police were looking for his help
prosecuting someone. When police told him they were investigating
his suspected involvement in the drug death of James Forness, Haak
inculpated himself in that matter even before police made any of the
statements the district court identified as coercive. Moreover, before
he made these statements, Haak, although not in custody, was
advised of his rights to remain silent and not to talk with the police;
to the assistance of counsel, appointed if necessary; and to halt the
interview at any time and to leave the police station. While he was
not told that anything he said to the police could be used against him,
Haak had some familiarity with both the criminal justice system and
the Miranda rights based on a past arrest. See United States v. Ruggles,
70 F.3d at 265 (considering defendant’s “familiar[ity] with police
questioning” in assessing voluntariness of statements); Green v. Scully,
850 F.2d at 902 (same). Thus, these personal circumstances strongly
indicate that Haak’s March 4, 2015 statements were voluntary.

        The same conclusion obtains with respect to circumstances
pertaining to the conditions of the interrogation. As noted, Haak was
not in custody. He voluntarily came to the police station and knew
from the outset that he did not have to speak with the police but,
rather, could stop the interview at any time and walk out of the
station. See United States v. Ruggles, 70 F.3d at 265 (concluding
statements voluntary where, inter alia, defendant not in custody and
told he “could leave at any time”). Haak met with police in a standard
interview room. The interview itself was not unduly lengthy, lasting
only a bit longer than one-half hour. See Parsad v. Greiner, 337 F.3d



                                  28
16-3876-cr
United States v. Haak


175, 184 (2d Cir. 2003) (concluding confession voluntary where, inter
alia, defendant not subjected “to extended periods” of uninterrupted
questioning); United States v. Okwumabua, 828 F.2d 950, 953 (2d Cir.
1987) (determining statements made at one-hour interview were
voluntary); United States v. Guarno, 819 F.2d at 31 (concluding
statements made during two and one-half hour interview were
voluntary); see also United States v. Siddiqui, 699 F.3d 690, 707 (2d Cir.
2012) (recognizing “length of detention” relevant to voluntariness
determination).

        Two officers were present for the interview, both dressed in
casual plain clothes and neither displaying any weapons.              Haak
himself was unrestrained throughout the interview. See Parsad v.
Greiner, 337 F.3d at 184 (deeming confession voluntary where, inter
alia, “detectives did not handcuff petitioner”); Green v. Scully, 850 F.2d
at 902–03 (concluding confession voluntary where, inter alia,
petitioner      “was    not   handcuffed   at   any   time   during    the
interrogation”).        As the district court observed and the video
recording shows, the interview was conducted in a “conversational”
and polite manner throughout, and bracketed at both the start and
conclusion by “casual talk.” United States v. Haak, 215 F. Supp. 3d at
228. In short, “it would be hard to imagine a more routine, benign,
and noncoercive investigatory scenario.” Id. (internal quotation
marks omitted). Thus, the circumstances of interrogation also weigh
heavily in favor of voluntariness.

        The district court acknowledged that these two sets of
circumstances “largely cut in favor of finding Haak’s statements to be
voluntary.” Id. Nevertheless, it ordered suppression based on the
police’s “clear,” “unmistakable,” and “false” promise of immunity in
return for Haak’s cooperation. Id. at 228–29. The court concluded that


                                     29
16-3876-cr
United States v. Haak


the promise overbore Haak’s will, such that his statements were not
“free and voluntary” acts.     Id. at 230 (internal quotation marks
omitted). We have already explained why the record will not support
this conclusion. See supra pp. 20–27. To summarize, Haak voluntarily
inculpated himself in the Forness drug death even before the
purported promise of immunity, which precludes determining, as the
district court did, that the promise was “the critical factor” in Haak’s
decision to speak to authorities. United States v. Haak, 215 F. Supp. 3d
at 229.      Further, the statements themselves do not clearly and
unmistakably promise Haak immunity from prosecution. They are
more reasonably understood in context to communicate that the
police were not then planning to arrest Haak because their focus was
on higher-placed persons in the fentanyl-laced heroin distribution
chain. Insofar as police solicited Haak’s cooperation against such
persons, they made no promise that Haak would thereby avoid
prosecution altogether.      Rather, they urged him to join the
government “team,” a common analogy for cooperation generally
that does not imply immunity.

        In sum, even if there is any ambiguity in the quoted police
statements as to the benefit Haak might derive from cooperation, the
totality of circumstances does not manifest police coercion but rather
weighs convincingly in favor of voluntariness.       Accordingly, the
suppression of Haak’s statements as constitutionally involuntary is
unwarranted.

                           CONCLUSION

        For the reasons stated, we conclude that the police did not
falsely promise Haak immunity from prosecution in return for his
cooperation. In the absence of such a promise, nothing in the totality


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United States v. Haak


of circumstances demonstrates that Haak’s will was overborne during
his non-custodial police interview so as to render the statements he
made at that time constitutionally involuntary. To the contrary, the
totality of circumstances indicates that Haak’s statements were
voluntary.

        Accordingly, the district court order suppressing Haak’s March
4, 2015 statements is REVERSED, and the case is REMANDED for
further proceedings consistent with this opinion.




                                  31
