The United States appeals from an order of the District Court for the District of Vermont, Billings, Judge, suppressing incriminating statements made by defendant Timothy Roberts and dismissing four counts of a superseding indictment returned against him on the basis of those statements. Roberts, who had entered into a plea agreement under which he agreed to cooperate with the government's investigation, made the statements while being questioned for allegedly having shot at his own vehicle in order to increase his chances of entering the federal witness protection program. Held: no Sixth Amendment right to counsel barred the interrogation; Roberts validly waived his Fifth Amendment right to counsel. The order is reversed.
Lumbard, Winter, and Miner, Circuit Judges.
The United States appeals from an order of the District Court for the District of Vermont, Franklin S. Billings, Judge, granting defendant Timothy Roberts' motion to suppress certain incriminating statements and partially granting his motion to dismiss a superseding indictment in the ongoing criminal prosecution against him, 690 F. Supp. 1368. The government had entered into a plea agreement with Roberts providing for the dismissal of all charges against him except for three counts of arson, in exchange for his cooperation in the investigation by the United States Bureau of Alcohol, Tobacco and Firearms (BATF) and his agreement to testify in any proceedings involving the matters under investigation. The prosecution secured the superseding indictment on the allegation that Roberts had breached the plea agreement by shooting at his own vehicle in an attempt to qualify for the federal witness protection program. Finding that Roberts' Sixth Amendment right to counsel was not violated when officials of the BATF interrogated him about the shooting of the truck, we reverse.
The facts are undisputed for the purposes of this appeal. Roberts was arrested on October 13, 1987 by members of the Vermont State Police and the BATF for the attempted arson of a commercial building in White River Junction on October 13, 1987. The state police and the BATF had been cooperating in an investigation into the burnings of a number of barns in North Troy, Vermont when their undercover work led to Roberts' arrest. A single-count indictment was returned on November 5, 1987 charging Roberts with attempted arson under 18 U.S.C. § 844(i).
On December 8, 1987, Roberts entered into a plea agreement with the government under which Roberts agreed (1) to plead guilty to the arson charge contained in the first indictment (the burning of the building in White River Junction which housed the Allied Floors store); (2) to plead guilty to both counts of arson contained in a two-count information (presented to him with the proposed agreement) charging him with having burned barns owned by Wilfred Pigeon and Malcolm Standish in North Troy, Vermont on October 26, 1986 and December 6, 1986, respectively; (3) to cooperate "completely, candidly, and truthfully" with federal and Vermont State Police investigators by providing any information, documents and objects relating to any criminal activities, and to testify involving matters referred to in the agreement; and (4) to wear a recording device while communicating, under the government's direction, with William Standish, Malcolm Standish and Reginald Riendeau concerning the arsons of their barns. In return, the United States agreed not to charge Roberts with the arsons of Durwood Starr's barn on October 6, 1986 and of Reginald Riendeau's barn on June 23, 1984 or with conspiracy or mail fraud on any of the five arsons. The agreement further provided that the United States retained the right to terminate the agreement if it "determine[d] that [Roberts] has failed to comply with any provision of [the] agreement, made any false statement to investigators or attorneys of the United States, or willfully failed to disclose information" as required by the agreement.
Between December 8, 1987, when the agreement was signed, and February 15, 1988, Roberts cooperated with and substantially assisted the government. His recorded conversations with Reginald Riendeau led to Riendeau's indictment for having hired Roberts to burn his barn.
On February 9, 1988, Roberts entered pleas of guilty to three counts of arson, as contemplated by the plea agreement, and agreed to surrender himself to the United States Marshall on February 16, pending sentencing.
On February 15, the day before he was to surrender, Roberts contacted the Vermont State Police and asked to speak to Detective Sergeant Richard Hall. Roberts excitedly told Hall that he had discovered two bullet holes in his truck during the previous three days, and he expressed concern for his safety and for that of his mother and sister. When he inspected the truck the next day, Hall found two bullet impact points and recovered one bullet from the ground near the truck. Later analysis showed the bullet to be of.22 caliber. Believing the threat to Roberts, as an informer, to be genuine, and believing Riendeau to be the one most likely to retaliate against Roberts, the United States moved to revoke Riendeau's bail. The motion was unsuccessful, but Riendeau's terms of release were severely restricted. Roberts surrendered himself on February 16, as agreed, and was incarcerated pending sentencing.
On March 4, 1988, Hall learned from a confidential source that Roberts himself had shot his truck on February 15. Hall met the informer on March 5, and was told that Roberts not only had shot his own truck, but had instructed the informer to go to Roberts' premises, retrieve the weapon and "get rid of it." The informer also told Hall where Roberts had procured the gun.
Based on this information, Hall and Special Agent Thomas Perret of the BATF obtained the consent of the owner of the premises where Roberts had been living prior to his incarceration and searched the barn. They discovered a.22 caliber Jennings semi-automatic pistol hidden between the interior and exterior walls of the barn. While at the premises, Hall and Perret were informed by one Armand Pion that Roberts had solicited him to shoot Roberts' truck and to shoot Roberts in the arm.
Hall and Perret then interviewed Roberts, without counsel, at the State Police barracks in St. Johnsbury, Vermont.*fn1 Prior to interrogating Roberts, Hall and Perret presented Roberts with a Miranda statement of rights form. Roberts asked why they were giving him a form at that time; the investigators replied that they had not advised Roberts of his rights in a long time and that they wanted to question him about "some old things and some new things." They did not specifically mention that one of the "new things" was the shooting of the truck. Roberts executed the form and the questioning proceeded.
Hall and Perret then asked Roberts whether he had shot his own truck. Roberts initially denied having done so; when the investigators confronted him with the pistol they had found in the barn, Roberts did not respond. At that point, Hall and Perret prepared to leave the barracks. Roberts then, according to Perret, asked, "What do you want me to say?", to which Perret testified he responded that Roberts could "tell the truth or he could say nothing at all." At that point, Roberts admitted that he had shot his own truck to increase his chances of entering the federal witness protection program.
The government terminated the plea agreement on March 11, 1988, considering Roberts' actions to have constituted a breach of his pledge to cooperate with the government. Thereafter, a superseding indictment was returned charging Roberts with four counts of arson,*fn2 18 U.S.C. § 844(i), one count of attempted arson, 18 U.S.C. § 844(i), and one count of possession of a firearm while under indictment, 18 U.S.C. § 922(n). On April 18, 1988, Roberts moved to dismiss the superseding indictment, arguing that he had not breached the plea agreement and that the government therefore should be held to the agreement. He also moved, on April 25, 1988, to ...