Appeal pursuant to 18 U.S.C. § 3731 (1976) from an order of the United States District Court for the Western District of New York, John T. Elfvin, Judge, granting defendant's motion to suppress statements made in the presence of federal agents. Reversed.
Newman and Kearse, Circuit Judges, and Tenney, Senior District Judge.*fn*
This is an appeal from an order of the District Court for the Western District of New York, John T. Elfvin, District Judge, granting defendant's motion to suppress statements made by him to a special agent of the United States Department of Agriculture. The principal question on appeal is whether the defendant's Fifth Amendment privilege against compelled self-incrimination bars the admission of incriminating statements made in a noncustodial setting to a special agent of the United States. For the reasons outlined below we hold that under the circumstances of this case the Fifth Amendment privilege does not bar the admission of these statements, and we reverse.
After a two count indictment was filed charging the appellee, Albert Mast ("Mast"), with converting crops pledged to the Commodity Credit Corporation in violation of 15 U.S.C. § 714m(c) (1976), he moved for an order to suppress certain statements. The statements had been made to Special Agent Leonard Ringel ("Special Agent Ringel") of the Department of Agriculture during the course of the investigation that led to Mast's indictment Mast argued that the statements were involuntary and, thus, that their admission would violate his Fifth Amendment privilege against compelled self-incrimination. Mast claimed that the statements had only been made after he had been told, first, that he did not need an attorney and, second, that he would not be prosecuted for the crop conversion if he made restitution. The district court agreed and granted the motion to suppress.
The events leading up to the suppression order were as follows. In November 1981 Mast received two crop loans for approximately $180,000 from the Commodity Credit Corporation, an agency of the federal government. The loans were administered by the Erie County New York Office of the Agricultural Stabilization and Conservation Service ("A.S.C.S."). The loans were secured by soybeans and corn that Mast had in storage. The loan agreements required the prior approval of A.S.C.S. before the crops in storage could be sold. On December 7 and 8 Mast sold a portion of the soybean crop without authorization. Four days later on December 12, after receiving permission from A.S.C.S., he sold the remaining portion of the soybean crop. As a result of this sale A.S.C.S. received approximately $14,000 toward repayment of the loan. During March 1982 Frank Newton ("Newton"), the County Executive Director of the A.S.C.S., discovered that Mast had also sold the corn crop without approval. At that time Mast was informed that he had thirty days to repay the loans. After Mast failed to meet this deadline, he was asked to meet with the County Committee of A.S.C.S. At the meeting he was told that if he repaid the loans no further action would be taken. In the meantime the Committee contacted the company that purchased the corn from Mast and notified it that the crop had secured a loan. The company made two payments of $23,000 and $5,000 directly to A.S.C.S. on June 16 and July 21, 1982 respectively. These were the last payments that were received on the loans. Mast, himself, made no further repayments on the loans. Thus, A.S.C.S. has received $42,000 toward repayment of the loans.
Eventually, the Department of Agriculture assigned Special Agent Ringel to investigate Mast's unauthorized crop sales. On August 26, 1982 Special Agent Ringel called Mast from Newton's office. He told Mast that he had been assigned to investigate the alleged unauthorized crop sales and that he wanted to meet with Mast to discuss this. Mast agreed to meet with Ringel and also agreed to bring documents relating to the soybean sales to the meeting.
The meeting, attended by Mast, Special Agent Ringel and Newton, was held on September 7, 1982 in Newton's office. Special Agent Ringel commenced the meeting by identifying himself and explaining that he wanted to discuss the allegations regarding the unauthorized crop sales. After Mast agreed to discuss these matters, Special Agent Ringel recited the Miranda warnings from an advice of rights form*fn1 and asked Mast whether he understood these rights. Mast stated that he did. Agent Ringel then asked Mast to read the waiver provision of the form and to indicate whether he wanted an attorney by marking the appropriate item on the form. Before marking and signing the form, Mast asked Newton if he thought that he, Mast, should have an attorney. Newton responded, "I don't know, but I don't think so." He also told Mast that he did not think it would do any harm if Mast signed the form. After Mast signed the form,*fn2 Special Agent Ringel told him that he had the right at any time to stop talking and consult an attorney. Special Agent Ringel then proceeded to question the defendant about the crop sales. During the course of the discussion the defendant gave Special Agent Ringel the documents that he requested. At the conclusion of the meeting Special Agent Ringel told the defendant that he was going to prepare a written statement of their meeting and asked the defendant to meet with him again to review the statement. He also asked Mast to bring some additional documents to the second meeting.
On September 13, 1982 the second meeting was held among the same three individuals. At that time Special Agent Ringel informed the defendant that his rights were still in effect. He did not, however, provide the defendant with a second advice of rights form. Special Agent Ringel and Mast reviewed the statement, which was written in the first person singular as if the defendant were speaking. After making a few modifications the defendant signed the statement. He also provided the requested documents. Sometime during the course of the meeting Newton warned Mast that the matter was now "in the hands of an attorney" -- an apparent reference to the Assistant United States Attorney assigned to the case.
The eight-page statement prepared by Special Agent Ringel delineates the facts concerning the loans and the unauthorized sales. In the statement Mast admits that he knew that the sales were illegal because they were made without the prior approval of A.S.C.S., but states that he did not intend to violate federal law and that he expected to receive commercial credit to pay the indebtedness. He also acknowledges in the statement that it may be used as evidence.
Subsequently, at a pretrial conference Mast made an oral motion to suppress all the statements that he made to Special Agent Ringel and Newton. At the suppression hearing Newton testified that Mast stated that he hoped to refinance the loans. Newton also testified that it was his understanding during the meetings that if Mast repaid the loans he would not be criminally prosecuted. Special Agent Ringel, however, testified that at no time during the meetings did he make any promises to Mast regarding his potential prosecution, and that Mast spoke voluntarily on both occasions. Mast did not testify at the hearing. The district court found that the defendant was "continuingly . . . given to understand [by Newton] that he was not going to be prosecuted criminally" if he repaid the loans. United States v. Mast, Cr. 82-149 (W.D.N.Y. Oct. 10, 1983) (Memorandum and Order), at 4.*fn3 In light of this finding the court held that the admission of the written statement or any other statements by Mast would violate his Fifth Amendment privilege against self-incrimination.
On appeal the government presents two arguments. First, it contends that the district court erred when it found that the defendant was promised that he would not be prosecuted if he repaid the loans. Second, the government argues that even if Mast had been promised this, his statements were still voluntary and thus the evidence should not have been suppressed. The government's first argument concerning the promises made to Mast need only detain us momentarily. The settled rule is that a district court's findings of fact may not be disturbed unless the findings are clearly erroneous. See United States v. Isom, 588 F.2d 858, 862 (2d Cir. 1978). Although the testimony at the ...