          United States Court of Appeals
                     For the First Circuit

No. 14-1393

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                       DANIEL HUFSTETLER,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Steven J. McAuliffe, U.S. District Judge]



                             Before

                    Howard, Lipez and Barron,
                         Circuit Judges.


     Joshua L. Solomon, with whom Pollack Solomon Duffy LLP was on
brief, for appellant.
     Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for
appellee.



                         March 20, 2015
            HOWARD,    Circuit   Judge.      Appellant-Defendant      Daniel

Hufstetler challenges his conviction for robbing a federal credit

union, 18 U.S.C. § 2113(a), arguing that he was coerced into

confessing to that crime in violation of his Fifth Amendment

rights.   At the time of Hufstetler's interrogation, his girlfriend

was also in police custody for the robbery. A significant chunk of

Hufstetler's    interview   thus   dealt    with   the    impact   that    his

cooperation would have on her prospects for release. Before trial,

Hufstetler filed two motions to suppress, each anchored on the

theory that the invocation of his girlfriend in this manner

constituted an improper threat or promise.               The district court

twice rejected that argument.             Because we conclude that the

officers did not act impermissibly, and that Hufstetler confessed

through his own volition, we affirm.

                                    I.

            In November 2011, the New Hampshire State Police and the

FBI were investigating a bank robbery at the Guardian Angel Credit

Union in Berlin, New Hampshire.      Relatively quickly, they homed in

on Hufstetler and his girlfriend Sheena Craig as the primary

suspects.      After   arresting   Hufstetler      and   Craig,    three   law

enforcement officers -- FBI Special Agent Laura Hanlon, Berlin




                                    -2-
Police Corporal Luc Poulin, and Berlin Detective Rich Plourde --

interrogated Hufstetler.1

          At that time, the officers had already painted a detailed

picture of the crime.     They knew that the two suspects were in

financial trouble; they had conducted a search of Hufstetler's home

and car which led them to clothing and shoes that matched those

worn by the robber in the bank's surveillance video; they had

obtained pictures from the bank video that showed Hufstetler; they

had met with witnesses who saw Hufstetler and Craig both sitting in

a car and driving around the bank before the robbery; and, they

knew that Hufstetler was sitting across from the bank immediately

before the crime.   They had also interviewed Craig prior to their

discussion with Hufstetler, at which time she provided them with

the precise routes that the two took on the day of the robbery.

          At several points throughout Hufstetler's interrogation,

the officers referred to this evidence and indicated that they

believed he was guilty.     They also noted that the purpose of the

interrogation was, in part, to determine Craig's precise role.

Though they knew that she drove him to the bank, they knew little

else about her culpability.     For instance, Special Agent Hanlon

said, "This is your opportunity to explain to us what her role is,"

and, "she's down there [being held by officers] based on what we


     1
       We take note that the officers began the interrogation by
providing Hufstetler with his Miranda rights.    They also tape
recorded the entire interview.

                                 -3-
have right now."       Corporal Poulin also asked, "[W]as she there on

her own accord or did she not know what was going on?"            Later on,

Corporal Poulin cut to the chase and stated, "I know it was you.

I already know it was you . . . My only intention up here Daniel,

is to figure out [Craig's] involvement."

             Intersecting with that line of inquiry was the officers'

recognition that Hufstetler was concerned for his significant

other.      After Hufstetler repeatedly expressed that concern, his

interrogators tried to explain the situation in terms that would

resonate with him; that is, they explained how his cooperation

could or could not assist Craig.              For instance, Special Agent

Hanlon said, "You should feel like a real heel because you put her

in this position . . . Our job is to find [the person responsible

for the robbery] and arrest him . . . We feel we've done that job."

At another point, Special Agent Hanlon also stated, "you should be

upset because you care for her and this is quite disruptive to her

life."      Corporal Poulin summed it up for Hufstetler by saying,

"There's obviously different outcomes for [Craig], depending on

what   it    is   in   the   details   that    we're   looking   for   here."

Critically, the officers consistently told Hufstetler that he

needed to tell the truth and that they lacked the authority to make

any guarantee or promise in exchange for his cooperation.

             For Hufstetler's part, he appeared to be enjoying the

process and wanted it to continue.            He noted, "I don't get what


                                       -4-
you, you're trying to speed up the process . . . Why are you so

quick on the draw? . . . Don't you know every minute I sit in here

is a little more funner than down there?"             At other times, he

steered the conversation back to Craig in a blatant attempt to

secure a deal for her; he obfuscated his answers; or, he simply

ignored the officers' questions.              Both his tone and cadence

reflected his aim at any given point; e.g., he spoke quickly and

somewhat combatively when attempting to secure a deal for Craig,

but was slow and relaxed when trying to elongate the interview.

          At    the   end   of   this   two    hour   and   fifteen   minute

conversation, Hufstetler seemed satisfied that his confession would

save Craig from criminal charges.         He asked, "so once you get your

guy, so to speak, for that . . . are you still gonna keep digging

like super deep."     After Detective Plourde assured Hufstetler that

"I'm not gonna go from here . . . and just try to rip every part of

your life and everybody involved with you," Hufstetler confessed.

During that admission, he took full responsibility for the robbery.

          In March 2012, a federal grand jury indicted Hufstetler

for this crime.   Prior to trial, his counsel moved to suppress the

confession.    The district court, albeit with limited discussion,

rejected the motion after finding the confession to be "entirely

voluntary."    Roughly one week before trial, Hufstetler tried again

with an analogous pro se motion.        The district court again denied




                                    -5-
it.   A jury subsequently found Hufstetler guilty on the charged

crime, and the court sentenced him to 180 months in prison.

            This timely, single-issue appeal followed.

                                     II.

            We review the denial of a motion to suppress an allegedly

involuntary confession de novo.       United States v. Hughes, 640 F.3d

428, 438 (1st Cir. 2011).        Any findings of fact, of which there

were none here, are ordinarily reviewed for clear error.                   United

States v. Jacques, 744 F.3d 804, 809.

                                     III.

            It is well established that the government may not use an

involuntary confession against a defendant at trial. See Dickerson

v. United States, 530 U.S. 428, 434 (2000).              A coerced confession

is improper because it is not "the product of a rational intellect

and   a   free   will."     Lynumn   v.     Illinois,    372    U.S.   528,   534

(1963)(internal     quotation    marks      and   citation     omitted).      The

introduction of such evidence violates an individual's due process

rights and thus requires reversal regardless of the sufficiency of

the remaining record.       United States v. Jackson, 918 F.2d 236, 241

(1st Cir. 1990).          When the voluntariness of a confession is

challenged, the government must prove by a preponderance of the

evidence that it was properly elicited.            Id.

            To make a voluntariness determination, we engage in a

"totality of the circumstances" inquiry.           Hughes, 640 F.3d at 438.


                                     -6-
This requires us to balance the officers' tactics with the unique

background of each individual suspect.           Id.    The lynchpin of our

analysis is whether the government's conduct overtook the will of

the defendant.     See Jackson, 918 F.2d at 242.

             Hufstetler's    case   turns   on    whether    the   officers'

references    to   his   girlfriend    during     the   interrogation   were

inappropriate and, if so, whether such statements overpowered his

will.     As he sees it, his interrogators immediately sensed his

concern for Craig and then repeatedly referenced her incarceration

in order to force his hand.            It was only after the officers

successfully convinced Hufstetler that Craig's freedom hinged on

his willingness to talk, he says, that he finally confessed.              He

thus insists that the officers infringed upon his constitutional

rights.

             Over time, there have been several developments in the

law applicable to addressing the propriety of utilizing a suspect's

family    member   during   an   interrogation,    as   Hufstetler   alleges

occurred here.     Admittedly, the applicability of the decision in

any one case to another can be difficult given the fact-intensive

nature of the totality-of-the-circumstances inquiry.               As a body

though, the cases do provide guideposts to aid us in determining

whether police conduct in this context crosses the line.             We thus

begin by laying out a mosaic of cases on this topic before plotting

Hufstetler's plea in that panoply of law.


                                      -7-
                                  i.

             One cluster of cases implies that the use of a family

member uniquely tugs at a suspect's emotions and thus can have an

undue impact.      Particularly notable here are two Supreme Court

decisions.      The first, Lynumn, involved officers informing a

defendant that her failure to cooperate would result in her losing

financial aid for, and custody of, her children.     372 U.S. at 534.

The Court noted that the defendant had no reason to question the

officers' capacity to carry out those threats.     Id.   Accordingly,

the court deemed the tactics improper and ordered the confession

suppressed.

             A few months later in Haynes v. Washington, 373 U.S. 503

(1963), the Court reiterated this point.         There, interviewing

officers repeatedly told a suspect that he would be unable to call

or see his wife until he wrote out a confession.     373 U.S. at 507.

Those threats occurred over a number of days and the defendant

"gave in only after consistent denials of his requests to call his

wife, and the conditioning of such outside contact upon his

accession to police demands."     Id. at 514.   The Court deemed this

improper and, when weighed against the defendant's susceptibility

to coercive tactics, found the confession to be involuntary.

             Hufstetler points us to a number of cases from the Ninth

Circuit which he believes best capture the import of those Supreme

Court opinions.     The first is United States v. Tingle, 658 F.2d


                                  -8-
1332 (9th Cir. 1981). In that case, the Ninth Circuit evaluated an

interrogation in which the suspect was told that she had "a lot at

stake" with respect to her child.          658 F.2d at 1334.     The court

used the occasion to broadly state that it is impermissible to

"deliberately prey upon the maternal instinct and inculcate fear in

a mother that she will not see her child in order to elicit

cooperation."    Id. at 1336 (internal quotation marks omitted).

          In 2011, that court restated this proposition in Brown

v. Horell, 644 F.3d 969 (9th Cir. 2011) -- a case that Hufstetler

largely   clings    to    here.     The     Ninth   Circuit   reviewed    an

interrogation during which an officer noted that the suspect's

ability to see or be with his child was entirely contingent on his

cooperation with the police.       644 F.3d at 981.        They "expressly

conditioned [the suspect's] ability to be with his child on his

compliance with her questioning."         Id.   Although the petitioner's

ultimate claims were denied under relevant habeas standards, the

court still classified such threats as coercive.           Id. at 981-82.

          At a minimum, these cases illustrate that we must be on

alert when an officer utilizes a family member as a tool during an

interrogation.      Nonetheless,    cases    from   this   circuit   provide

examples of situations where the discussion of a family member was

deemed acceptable.       The parties emphasize two.

          The first is United States v. Jackson, 918 F.2d 236 (1st

Cir. 1990).      There, a defendant was arrested for gun and drug


                                    -9-
offenses but only admitted to possessing the drugs.      In an effort

to entice the suspect to talk, the investigating officer informed

him that his sister was under arrest for the gun violation, and

thus his confession could assist her.   918 F.2d at 241.    On appeal,

Jackson argued that the use of the sister in that way was unduly

coercive, but we concluded that the statement was neither a direct

threat nor promise. Id. at 241-42. Moreover, we found that "there

[was] no evidence that an especially close relationship existed

between Jackson and his sister, or that Jackson was unusually

susceptible to psychological coercion on that account or any

other." Id. at 242. Accordingly, we affirmed the district court's

decision that the confession was voluntary.

          Recently, we reached a similar result in United States v.

Jacques, 744 F.3d 804 (1st Cir. 2014). In that case, interrogating

officers remarked "on the failing health of Jacques's elderly

father, suggesting that continued resistance might deprive Jacques

of crucial years with his family."    744 F.3d at 808.     In response

to an involuntariness challenge, we stated that "statements that a

defendant's refusal to cooperate may lead to an extended separation

from his or her loved ones may contribute to a finding that the

defendant's confession was coerced . . . [h]owever, the mere fact

that a defendant is placed under some psychological pressure by

agents does not necessarily render a confession involuntary."      Id.

at 811 (internal quotation marks and citation omitted).             We


                               -10-
ultimately concluded that the subsequent confession was voluntary

because there was only a single reference to the family member, the

suspect's demeanor during the interrogation did not manifest any

notable psychological or emotional anxiety, and there was no

evidence that he was particularly susceptible to coercion.                  Id. at

811;   see also Cooper v. Bergeron, ___ F.3d ___ , 2015 WL 627070 at

*13 (1st Cir. Feb. 13, 2015).

             Thus, while Lynumn and its progeny counsel us to be

particularly cognizant of the risk of coercion when reviewing

interrogations where officers invoke references to a family member,

our cases also emphasize that discussion of a family member, on its

own, is not per se coercive.        Instead, we must closely examine the

specific manner in which the officer discussed the relative and

weigh such references against the defendant's susceptibility to

coercion.

                                       ii.

            In this case, we balance the officers' conduct with

Hufstetler's       susceptibility   to       coercion    by    addressing    each

consideration in turn.

                                        a.

            When    evaluating   the    propriety       of   police   tactics   we

consider "the totality of the circumstances," which may include the

"length and nature of the questioning," the existence of any

explicit or implicit threats, and any deprivation of a suspect's


                                       -11-
essential needs.          Hughes, 640 F.3d at 438.           A promise or threat

need       not    be   explicit,   but    can    also    result     from   "[s]ubtle

psychological coercion."           Tingle, 658 F.2d at 1335.

                 Hufstetler   accuses     the    officers   of    making    improper

threats or promises. To flesh out this argument, he cites portions

of     the       transcript   which,     in   his   view,    show    the    officers

conditioning Craig's release on his willingness to confess.                    Most

notably, he quotes: "I certainly don't want to see those kids be

without their mother;" "[T]here's obviously different outcomes for

[Craig], depending on what it is in the details;" and, "[Y]ou can

save her a buck by saying that you didn't tell her what you were

gonna go do, but you're not doing that."                He thus believes that the

officers deliberately preyed on his emotions to force a confession

from him.2

                 After carefully reviewing the transcript and listening to

the interrogation, we can discern no improper threat or promise.

At the outset, we note that the officers had probable cause to hold



       2
       Hufstetler also briefly points to statements that "[y]ou not
saying anything is hurting her. [y]ou're willing to sell her down
the river, so be it," and "you'll miss an opportunity to have any
kind of input on the outcome for her, and that's all on you." He
says that these comments violated his Fifth Amendment right to
remain silent. As will be discussed though, the officers merely
described the position that Hufstetler and Craig were in without
embellishing or distorting that difficult reality; they were not,
however, conditioning either individual's freedom on a willingness
to talk. Further, the officers made clear that Hufstetler had the
right to remain silent and could stop answering questions at any
point. Accordingly, this argument lacks merit.

                                          -12-
Craig.   In such a circumstance where the referenced relative is

both a family member and a co-suspect, probable cause for holding

that individual helps to place the officers' statements in context.

Without more, an officer's truthful description of the family

member's predicament is permissible since it merely constitutes an

attempt to both accurately depict the situation to the suspect and

to elicit more information about the family member's culpability.

See, e.g., United States v. Jones, 32 F.3d 1512, 1517 (11th Cir.

1994) (finding a confession voluntary where agents had probable

cause to suspect Jones's girlfriend, informed him that she would be

prosecuted if she was involved, and "never told [him] that his

girlfriend would not be prosecuted if he cooperated"); Allen v.

McCotter,     804   F.2d   1362,   1363   (5th   Cir.    1986)   (denying   an

involuntariness claim where officers told the suspect that "because

his wife was directly involved in the robbery, charges could be

filed against her"); see also Thompson v. Haley, 255 F.3d 1292,

1296-97 (11th Cir. 2001); United States v. Kime, 99 F.3d 870, 879-

80 (8th Cir. 1996); cf. United States v. Ortiz, 943 F. Supp. 2d

447, 456-58 (S.D.N.Y. 2013) (where an officer's threat to arrest a

suspect's elderly aunt without any probable cause was deemed

improper); United States v. Andrews, 847 F. Supp. 2d 236, 249-50

(D.   Mass.   2012)   (finding     police   conduct     impermissible   where

officers sought to make a suspect believe that they would arrest

his elderly mother for the alleged crime).


                                     -13-
          In   context,   it   is   difficult   to   view   the   officers'

actions, in their totality, as improper.        The officers' statements

were undoubtedly difficult for Hufstetler to swallow, and the

officers were clearly aware that Hufstetler was in a rough spot.

But, they never lied, exaggerated the situation, or conditioned

either individual's release on Hufstetler's willingness to speak.

Instead, they told Hufstetler that Craig was a suspect and unless

new information came to light to discount her culpability she would

continue to be criminally liable.          We take no issue with the

officers' utilization of this indisputably true fact to both gain

more information about Craig and to elicit more intelligence about

Hufstetler's own actions. Given Craig's putative criminality, such

statements simply do not align with the kind of inappropriate

threats made in the Lynumn line of cases.

          Equally relevant, the officers also emphasized that they

could not, and would not, promise Hufstetler anything in exchange

for his confession.       For example, Special Agent Hanlon stated

bluntly that "I don't have the power or the authority . . . nor

does the detective, to go down and un-arrest [Craig] right now."

Detective Plourde reiterated that by saying "I can't make you any

promises before you tell me what actually happened." Thus, even if

the references to Craig were impolitic, an objectively reasonable

individual in Hufstetler's shoes could not have construed the

statements as constituting a promise or threat.        Cf. United States


                                    -14-
v. LeBrun, 363 F.3d 715, 725 (8th Cir. 2004) (framing the issue as

whether "a reasonable person would view the Agents' statements as

a promise").

          Ultimately,     this   record   reflects   little   more   than

officers, faced with two criminal suspects, attempting to sift out

each individual's role.    Though Craig was undoubtedly significant

to Hufstetler, the officers never utilized her in a manner which

would have converted their acceptable references into impermissible

ones. For that reason, the police conduct here falls far closer to

the Jackson and Jacques line of cases than the blatant and improper

discussions that occurred in Lynumn, Haynes, and the like.

                                   b.

          In addition to considering the officers' actions, we must

examine whether Hufstetler was susceptible to the allegedly illegal

police conduct.   Jackson, 918 F.2d at 242.      Here, we evaluate the

defendant's "age, education, intelligence, and mental condition,"

and any "prior experience with the criminal justice system."

Jacques, 744 F.3d at 809.

          Hufstetler again cites to the transcript to support his

contention that he would not have confessed but for the officers'

implication that Craig's freedom hinged on him doing so.        He notes

that he finally confessed after "Detective Plourde's assurance that

the way to 'get [her] out of here' was for Mr. Hufstetler to 'tell

us what happened.'"


                                  -15-
             Focusing    solely     on    the     dynamics      of    this   specific

interrogation,     we   are    hard-pressed        to   find     support     for   the

conclusion that Hufstetler was susceptible to coercion or that his

will was actually overcome. See, e.g., United States v. Larry, 126

F.3d 1077, 1079 (8th Cir. 1997) (examining remarks made to officers

during an interrogation and concluding, based on those statements,

that   the   defendant      voluntarily         confessed).          Throughout    the

interview, Hufstetler actively tried to extend the interrogation,

attempted to avoid questions, and even appeared to be having some

fun with the officers.        As previously noted, he made remarks such

as "I don't get what you, you're trying to speed up the process,"

and "Why are you so quick on the draw?"                   The recording of the

interrogation renders his ploys unmistakable.

             Further, our review of the recording makes plain that

Hufstetler was steering the conversation in an effort to secure a

deal for Craig; he was fully cognizant of what he was doing

throughout the entire process.                  At several points during the

interrogation, the officers proceeded to a different topic, but

Hufstetler pivoted the conversation back to Craig.                    He was not shy

about making his intent clear, making statements such as, "It's

like how does she physically get out of here? . . . where's the

guarantee    at?   What's     the   deal?"        In    fact,    and    contrary    to

Hufstetler's interpretation, the transcript immediately preceding

his confession reflects the voluntary decision-making process that


                                         -16-
he undertook; it was only when he was satisfied that he had

accomplished his goal that he began to discuss the robbery.    Such

self-awareness and negotiation tactics are simply not hallmarks of

an individual susceptible to, or who has been overtaken by, any

coercive techniques.3

           Ultimately, the transcript and recording are devoid of

evidence that Hufstetler lacked sufficient control over his own

choices.   In that respect, he stands in the same shoes as the

defendants in Jackson and Jacques, and his challenge must be

resolved the same way.

                                IV.

           The dynamics of the interrogation in this case lead us to

conclude   that   Hufstetler    voluntarily   chose   to   confess.

Accordingly, we affirm.




     3
       Hufstetler briefly argues that the officers had reason to
believe that his mental health was compromised and that he was
particularly susceptible to coercive tactics.      To support this
argument, he cites portions of the transcript and then references
competency issues that emerged throughout the pendency of his
criminal case. As the government persuasively rebuts though, no
evidence at the time of the interrogation would have put a
reasonable officer on notice that Hufstetler suffered from any such
mental condition.   This case thus does not involve a situation
where the officers were "dealing with a suspect whose compromised
mental state" was known to them. See Hughes, 640 F.3d at 440.

                                -17-
