                                     ___________

                                     No. 95-4102
                                     ___________

United States of America,                 *
                                          *
             Plaintiff/Appellant,         *
                                          *    Appeal from the United States
     v.                                   *    District Court for the Western
                                          *    District of Missouri.
Mark A. Morgan,                           *
                                          *
             Defendant,                   *
                                          *
Walker LaBrunerie,                        *
                                          *
             Defendant/Appellee,          *
                                          *
Charles J. Weber,                         *
                                          *
             Defendant.                   *

                                     ___________

                      Submitted:     April 9, 1996

                            Filed:   August 12, 1996
                                     ___________

Before BEAM and MURPHY, Circuit Judges, and BURNS,* District Judge.
                               ___________

BEAM, Circuit Judge.


     After determining that Walker LaBrunerie's inculpatory statement was
given in the course of plea discussions, the district court suppressed the
statement    under   Rule   11(e)(6)(D)   of     the   Federal   Rules   of   Criminal
Procedure.    The government appeals.         We reverse.




     *The HONORABLE JAMES M. BURNS, United States District
     Judge for the District of Oregon, sitting by designation.
I.   BACKGROUND


      This appeal involves a troublesome situation in which law enforcement
agents sought a suspect's cooperation and are now attempting to use his
statements against him.     The Federal Bureau of Investigation (FBI) and the
Internal Revenue Service (IRS) conducted an investigation into corruption
in   the    city   government   of       Kansas   City   (Missouri).      During    the
investigation, LaBrunerie came under suspicion for, among other things,
bribing city council member Michael Hernandez to obtain favorable zoning
action.    Unknown to LaBrunerie, Hernandez had been actively cooperating in
the investigation.


      At    some   point   during    the    investigation,    the   FBI    needed   the
cooperation of another suspect.          LaBrunerie was selected for the task and
approached at his Kansas City home at approximately 8:00 a.m. on September
15, 1994.     The reportedly cordial meeting, between LaBrunerie and two
agents, lasted for roughly thirty minutes.          LaBrunerie was informed of the
                                     1
criminal charges he could face, the strong possibility of jail time, and
the importance of his cooperation.          After LaBrunerie briefly explained his
role in the offenses, the agents requested his further cooperation and
asked him to attend another meeting later that same morning.              Stating that
he had no option other than cooperating with the investigators, LaBrunerie
agreed to attend the meeting.


      LaBrunerie drove to a hotel several miles from his home to attend the
second meeting.    It began around 10:00 a.m. and lasted approximately three
hours.     Several FBI agents were present, as was Assistant United States
Attorney Paul Becker.      Following introductions, Becker spent approximately
the first fifteen minutes of the meeting explaining the charges LaBrunerie
could face, the




      1
     Those charges included bribery, money laundering, income tax
evasion, mail fraud and fraud against the government.

                                           -2-
effect of his cooperation on his sentence, and, in general terms, the
federal sentencing guidelines.          At this meeting, LaBrunerie incriminated
himself by giving a detailed explanation of his role in the offenses.


     LaBrunerie attended both meetings without obtaining counsel.              Indeed,
the FBI agents admittedly discouraged LaBrunerie from obtaining counsel and
did not read him his Miranda rights.         The agents informed LaBrunerie that
although he was a target of the investigation, he was free to leave the
meetings at any time and was not under arrest.                 LaBrunerie was further
instructed not to tell anyone about the meetings because public knowledge
of his cooperation would lessen his value as an informant.2


     For various reasons, LaBrunerie's cooperation with the investigation
disintegrated.     After LaBrunerie informed others of his cooperation with
law enforcement, the FBI effectively dropped him as a source.                  He was
subsequently     indicted    on    various   charges    involving    the   bribery   of
councilman Hernandez.       LaBrunerie then moved to suppress his September 15th
statements.


     At a suppression hearing before the magistrate judge, both LaBrunerie
and the prosecution focused on the issues of whether the FBI's questioning
of LaBrunerie was custodial and whether his statements were voluntarily
given.    The magistrate judge found that the statement made at the 8:00
meeting   was    admissible       as   voluntarily     given    during   non-custodial
questioning.    This appeal does not involve that ruling.           At the end of that
suppression hearing, however, the magistrate judge sua sponte raised the
issue of whether the 10:00 statement was given in the course of plea




     2
      The FBI agents wanted LaBrunerie to work undercover for them.
This work was to entail, among other things, LaBrunerie's taping of
conversations regarding the bribery schemes.       If LaBrunerie's
cohorts were made aware of his cooperation with the FBI, they would
likely not freely discuss those matters with him.

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discussions and was, thus, inadmissible under Federal Rule of Criminal
Procedure 11(e)(6)(D) (Rule 11).    Neither side had considered or argued
this point.


      The magistrate judge found the 10:00 statement was made in the course
of plea discussions and recommended that it be suppressed.    The district
court held a hearing specifically addressing this issue and entered an
order suppressing the 10:00 statement.   The government alleges that this
ruling was erroneous because the 10:00 statement by LaBrunerie was merely
offered in the hope of obtaining leniency in sentencing and, therefore, is
admissible evidence.


II.   DISCUSSION


      The district court's ultimate determination that LaBrunerie's 10:00
statement was given in the course of plea discussions is a mixed question
of law and fact.    See Ornelas v. United States, 116 S. Ct. 1657, 1662
(1996) (holding district court's determination of whether probable cause
existed for search, requiring application of historical facts to law, is
mixed question of law and fact and should be reviewed de novo).   On appeal,
therefore, we review the determination de novo.3    See id.   To determine
whether LaBrunerie's



      3
      In so holding, we recognize the contrary Eighth Circuit cases
cited by the appellees for the proposition that the district
court's denial of a motion to suppress is reviewed under a clearly
erroneous standard. See, e.g., United States v. Hare, 49 F.3d 447,
450 (8th Cir.), cert. denied, 116 S. Ct. 211 (1995); United States
v. Lloyd, 43 F.3d 1183, 1186 (8th Cir. 1994). Initially, we note
that those cases predate the United States Supreme Court's decision
in Ornelas. Next, we note that despite stating the appropriate
level of review was one of clear error, a closer reading of the
cases shows that the court proceeded to review "the totality of the
circumstances." Hare, 49 F.3d at 451; Lloyd, 43 F.3d at 1186. In
other words, the court's actual review much more closely resembled
a de novo review than it did a clearly erroneous review. In any
event, we would reach the same result using either standard of
review, because on these facts the district court committed clear
error by determining LaBrunerie's 10:00 statement was made in the
course of plea discussions.

                                   -4-
statement was given in the course of plea discussions, we look to the
specific facts and examine the totality of the circumstances surrounding
the statement.   United States v. Grant, 622 F.2d 308, 312 (8th Cir. 1980).



      The essential purpose of Rule 11, upon which the district court based
its   suppression    order,   is   promoting   active    plea   negotiations   and
encouraging "frank discussions" in plea bargaining.             Rachlin v. United
States, 723 F.2d 1373, 1376 (8th Cir. 1983).             The rule provides, in
relevant part:


      [E]vidence of the following is not, in any civil or criminal
      proceeding, admissible against the defendant who made the plea
      or was a participant in the plea discussions:

           . . . .

           (D) any statement made in the course of plea discussions
           with an attorney for the government which do not result
           in a plea of guilty or which result in a plea of guilty
           later withdrawn.


Fed. R. Crim. P. 11(e)(6)(D).       By its plain language, the rule makes it
clear that a statement must be given "in the course of plea discussions"
to come within the rule's exclusionary language.        See, e.g., United States
v. Robertson, 582 F.2d 1356, 1367 (5th Cir. 1978) (court must distinguish
between those discussions in which "the accused was merely making an
admission and those discussions in which the accused was seeking to
negotiate a plea agreement").         Therefore, we must determine whether
LaBrunerie's 10:00 statement was given "in the course of plea discussions"
within the meaning of Rule 11.


      This case is indistinguishable from United States v. Hare, 49 F.3d
447 (8th Cir.), cert. denied, 116 S. Ct. 211 (1995).            In Hare, we agreed
with the district court that statements should not be




                                       -5-
suppressed because they were not given in the course of plea discussions.
Id. at 449.    The facts of this case are very similar.   In both cases, the
defendants were attorneys; here, LaBrunerie is a graduate of Harvard Law
School.    Although both LaBrunerie and Hare were originally contacted by FBI
agents who lacked the authority to engage in plea bargaining, they both
voluntarily confessed their involvement in criminal activities to those
agents.    Both initial meetings were followed by second meetings, at removed
locations, to which the defendants voluntarily journeyed.   At both of these
second encounters, the then-present Assistant United States Attorneys
engaged in generalized discussions of the sentencing guidelines and the
possible effect of cooperation on the defendants' respective sentences.


        In neither the present case nor the Hare case did the Assistant
United States Attorneys discuss a possible plea bargain       or in any way
encourage arrival at a plea bargain before the defendants made the
incriminating statements.    In fact, plea bargains were unattractive options
for the FBI because the attendant publicity would negate the effectiveness
of the suspects' cooperation.       Both LaBrunerie and Hare offered their
cooperation in the hope of bettering their situation somewhere down the
road.     As we stated in Hare:


        [The defendant's] statements were offered unconditionally in an
        effort to cooperate. Perhaps [the defendant] was hopeful of
        improving his situation and eventually gaining a motion for
        substantial assistance at sentencing, but the statements cannot
        be said to have been made in the course of plea discussions
        within the meaning of the exclusionary rules because no plea
        bargain was offered or even contemplated at that point.


Id. at 451 (emphasis added).


        Simply put, normal plea discussion events did not occur in the
present case:    (1) no specific plea offer was made; (2) no deadline




                                     -6-
to plead was imposed; (3) no offer to drop specific charges was made; (4)
no discussion of sentencing guidelines for the purpose of negotiating a
plea occurred--only a generalized discussion to give the suspect an
accurate appraisal of his situation occurred; and (5) no defense attorney
was retained to assist in the formal plea bargaining process.             See id. at
450; Rachlin, 723 F.2d at 1376-77.         LaBrunerie knew that the offenses with
which he could be charged were serious.          Nevertheless, such knowledge does
not transform an admission into a plea discussion.            Therefore, we find on
the facts of this case, Rule 11 was inapplicable to the statement here at
issue.


III.   CONCLUSION


       Because   we    find   no   plea   discussion   to   justify   suppression   of
LaBrunerie's statement under Rule 11(e)(6)(D), we reverse the judgment of
the district court.


       A true copy.


            Attest:


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




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