United States v. Denell N. Syslo, United States of America v. Gregory T. Syslo

86 America, STATES

UNITED

Appellee,

v. SYSLO, Appellant. N. America, Appellee, States

United Syslo, Appellant.

Gregory T. 01-2990, 01-2992.

Nos. Appeals, Court States

United Circuit.

Eighth 10, 2001. Dec.

Submitted: Sept.

Filed: En Banc Rehearing

Rehearing and 23, 2002.*

Denied: Oct. * rehearing en petition banc. grant Judge McMillian would Lincoln,

Kirk E. Naylor, argued, NE, appellants. for Everett, Lincoln, Alan argued, NE, Lee appellee. for MURPHY, Before McMILLIAN and BATTEY,1 Judges, Circuit District Judge.

PER CURIAM.

Gregory T. Syslo and his wife Denell were charged with federal in offenses con- nection with burglary. a bank was sentenced to 27 pleading months after guilty to bank burglary in violation of 18 2113(a), § U.S.C. and Denell was sen- tenced to 21 plea months on her money laundering violation of 18 U.S.C. §§ suppress 1957 and 2. Both moved to Lincoln, statements had made to Ne- police. braska A magistrate judge con- Dakola, 1. The Battey, Honorable Richard H. sitting by designation. United Judge States District District of South and made cerned that had not interviewed suppression hearing ducted fact, including registra- some him. Id. at 2. ran a vehicle findings Clark detailed Syslos, con- but which favorable tion check revealed all the evidence that both light August Syslos registered cluded be denied and automobiles, motions should suppression purchase of two a 2000 Cad- court2 then The district so recommended. illac Escalade and a 1999 Pontiac Grand review, after a careful de novo conducted Department Am. Id. Clark called the adopted magistrate judge’s it which that Motor Vehicles and learned the vehi- made additional find- findings of fact and purchased July had been in late at a cles adopted magis- also ings. The court dealership local and that there were no deny judge’s trate recommendation (testimo- Tr. Hearing liens on either. at motion, it suppression but con- Clark). ny Employees of Inv. at the deal- that Denell’s motion should cluded ership Syslos informed that the had Clark Syslos contend on granted part. in Both paid approximately for the vehicles with that their statements should appeal $49,000 in which had taken from cash completely suppressed because been Rep. money. Mag. a box filled with at in of their Fifth were obtained violation suspect had a in an Gregory also become affirm. rights. Amendment We Myers investigating. forgery unrelated Id. She and Clark decided she would I. Gregory ask to come to the station burglary In a at the Nation- July exemplar a in connec- give handwriting Commerce, $95,980.45 in cash al Bank of forgery tion with the case and that $7,237.07 stamps and cashier checks and a meantime Clark would execute search Investiga- from a teller bus. were taken Syslos’ warrant at the residence in connec- job an because wires suspected tors inside at burglary tion with the case. Id. 2-3. security system had to the bank’s video behind, Gregory arrived at the station on No- cut, had been left money been bait 1, 2000 and was directed to an vember Judge’s Report, Order and Magistrate (Mar. 2001) approximately at 11 a.m. [Mag. interview room Recommendation keys Myers master told Rep.], at and several Id. at 4. testified scene, Suppression Hearing at the Gregory questioned found that he would be 2001) (Mar. Tr.], Transcript [Hearing at forgery investigation, Hearing Clark). Investigator (testimony of Inv. that he was Gregory Tr. but denies developed suspects a Randall Clark list see, any investigation, ever informed about employees and former from current a e.g., id. at 183. The district court made Syslo was Mag. Rep. Gregory at 1. bank. however, finding, Myers given previously on the list because he had Gregory the information. United States security guard, a worked at the bank as (D.Neb. 4:00CR3091, May Syslo, No. initially questioned. Id. but he was not 2001) Order], Myers Ct. read [Dist. Gregory rights his Miranda from a waiver Myers, one of the other investi- Sandra Myers Gregory form. After informed police department, in the told Clark gators right attorney, Gregory to have an that the bank chief of October Myers whether he needed an attor- “asked Gregory good sus- security considered exemplar. Myers July burglary ney handwriting and was con- for a pect for the Urbom, K. United braska. 2. The Honorable Warren Judge for the District of Ne- States District ‘No,’

responded law, reading and stated that a mother in and Hruza arranged for an person’s rights ‘just this situation officer to call Hearing her. Tr. at 160 ” Mag. Rep. Gregory at 4.3 formality.’ (testimony Syslo). of D. signed rights began the waiver of and In the meantime Clark went Grego- handwriting exemplar, approxi- which took ry’s room and Myers interview told mately fifty Mag. five minutes. Rep. at 4. box of cash had been found at Syslo’ time, During had residence and Denell and the children general conversation about work were at Mag. Rep. the station. at 4. Clark family. Id. started to ask about the bank Investigator Clark and

Meanwhile Tere- burglary purchases. automobile sa Hruza executed the search warrant at Id. at 4-5. claimed that he had Syslos’ the residence where Hruza a saw obtained the cash for the cars from invest- box filled with cash which matched the ments on internet. the Id. at 5. Gregory description of the box seen the dealer- “[Ejither that claims Clark said you us tell ship employees. Id. at 3. Hruza When the truth or your and you going wife are to asked Denell to accompany the to officers jail and your kids are going to a foster station, agreed. the she Id. Since there home.” Hearing Tr. at (testimony of nobody was available to stay Sys- with the Syslo). G. Clark denied making that children, young los’ two they went too and statement, Hearing Tr. at and both the group arrived at shortly the station magistrate judge and the district court before noon. Id. After Clark obtained found 12; that he had Mag. Rep. not. at children, stay caretaker to with the Hear- Dist. Ct. Order at 7. Clark); ing (testimony Tr. of at Inv. id. Myers went over to Denell’s interview Hruza), at 95 (testimony of Inv. Hruza room and that reported Gregory talk- was took an Denell to interview room and read ing telling and the truth. Mag. Rep. at 5. her warnings from a waiver form. Myers testified that Denell began cry to Mag. Rep. signed at 5. Denell the form and made statements acknowledging that rights, waived Government Exhib- Gregory had robbed the bank. Hearing it but she claims Hruza said that the Tr. Myers at 72. returned to waiver a formality and that she could interview him and informed that his wife statement, gave home if she otherwise telling truth and that now it was jail. she was going Hearing to Tr. at 154- Mag. Rep. his turn. at 5. 56. Hruza denied making state- these ments, 113-14, Gregory Hearing deny Tr. at continued to his and the involve- district found that if court even Hruza had ment and did not believe that family his statements, made the Denell was at had voluntari- the station. Id. After he asked ly them, rights. Myers waived her Dist. at 2. see him Ct. Order showed two hand- if Denell asked could contact her written from Gregory 36, $100,000, 1903-04. id. at lines nearly Tr.], 6, Gregory 303-06. lines [Gregory at deny she had actual- to She continued in a recorded burglary confessed planned Gregory in advance ly known statement, about questions answered 41, at line See id. burglarize the bank. to taken to the and was investigation, forgery (“The was after the most I ever knew Mag. Rep. at 6. p.m. jail at 1:15 county fact.”). her statement at Denell concluded taken from A recorded statement with her children. p.m. and went home 2:02 Transcript of Denell, p.m. starting at 12:24 7. Rep. at Mag. (Nov. Recorded Statement Syslo’s Denell burgla- with bank charged 2000) Tr.], 1. She stated 1, at [Denell 2113(a), § and in violation of 18 ry U.S.C. to believe recently come she had with charged Denell were both he and 13, crime, at lines id. had committed of 18 laundering in U.S.C. violation money knowledge 642-655, actual she denied but suppress They 2. moved §§ 1957 and told it, Hruza at lines 668-675. id. statements, their Mi- arguing their if she go jail would Denell that she invalid and that then- randa waivers 744A16, and lie, lines at did not id. magis- A had been coerced. confessions my have “If I didn’t responded, Denell fact and rec- made judge trate might lie to worry about children Syslos’ denial of the motions. ommended butt, my gonna save that I was thinking adopted most of court The district somebody to be has away Greg goes if but findings and conclu- magistrate judge’s kids,” they’re my my kids and with there review, with the after its de novo sions part The first at lines 748-50. id. exception sup- the court important interview concluded Denell’s recorded by made most of statements pressed line p.m. Id. 1:35 of her inter- part the second during Denell jail and from the Myers then returned prod- were the it found view because confession Hruza about told invol- and thus questioning uct of coercive fur- question that she suggested untary. investigators told the had ther. guilty pled under Syslos then both him when he with been that Denell had protected their bank, which plea agreements key to the master had obtained a appeal rights rulings ingly, the adverse intelligently. Miranda v. Ari- suppression Gregory pled zona, their motions. 436, 444, U.S. 86 S.Ct. guilty burglary to bank under 18 (1966). U.S.C. L.Ed.2d 694 A is knowing waiver 2113(a) § and Denell to money laundering it if is “made with a full awareness of both §§ under 18 and 2. Gregory U.S.C. the nature of the right being abandoned was sentenced to 27 months and Denell to and the consequences of the decision to months, but the court ordered that Burbine, abandon it.” Moran v. 475 U.S. consecutively should serve their sentences 412, 421, 106 S.Ct. 89 L.Ed.2d 410 so that their always children would (1986). voluntary It is if product it is “the parent one with them. The court also of a free and deliberate choice rather than years supervised ordered three release intimidation, coercion, deception.” or Id. each and restitution the amount of The district court found that Greg $103,217.52. ory had known he would be interrogated the forgery investigation, and we

II. conclude that finding supported is appeal Gregory argues On that his state- Investigator record. Myers testified ment suppressed should have been be- that she definitely had ques intended to cause he waived Fifth his Amendment case, tion him about the forgery Hearing rights without understanding that he Tr. at prior and that to administering would be interrogated and after rights him they told would agreed that he lawyer did need a “probably talk about forgery,” id. at said that the a formality. waiver was He giving 62. The of Miranda warnings is not also claims that Clark told him that he and necessary to obtain a handwriting exemp his'Wife would and their children lar, California, Gilbert v. 388 U.S. to foster if homes he did not tell the truth 266-67, 1951, 87 S.Ct. 18 and this caused to an L.Ed.2d 1178 him make invol- (1967), untary says they confession. and the fact He have been given court implies erred that he had that an finding known officer intends to he would be questioned Moreover, about the forgery question suspect. the waiv investigation and that Clark had not made er signed by Syslos forms referred the threats. argues that her Mi- several times to the fact that the signer randa waiver involuntary, was and that her questioned, would be Syslos and the indi entire statement therefore have should cated on the forms that understood been suppressed. this. Government Exhibits 1 & 9. findings We review factual a under Although Gregory interrogated standard, clear error and we review de burglary the bank before the for novo conclusions of law based those gery, sequence of questioning does not factual findings, as a such whether Mi validity affect the of a Miranda waiver. randa waiver was or a confession valid 564, 577, Spring, Colorado v. 479 U.S. 107 Barahona, voluntary. United States 851, (1987); 93 L.Ed.2d S.Ct. 954 McKee v. (8th 412, Cir.1993) (waiver 990 F.2d 418 of (8th Nix, 833, Cir.1993), 995 F.2d 837-38 Casal, rights); States v. United denied, 998, 565, cert. 510 114 U.S. S.Ct. (8th 1225, Cir.1990) (volun 915 F.2d 1228 (1993). 126 L.Ed.2d may 465 An officer confession). tariness of change topic of interrogation without “suspect’s A notice a waiver of the Fifth because Amend awareness of ment privilege against possible subjects self incrimination is all questioning only valid if it is voluntarily, made know- advance of interrogation is not relevant to 866 (8th Cir.1989) (confession). suspect F.2d 729

determining whether volun- knowingly, intelligently waived tarily, A court must examine both “the conduct of privilege.” Spring, his Fifth Amendment the law enforcement officials and the ca- 577, 107 S.Ct. 851. The dis- U.S. pacity suspect pressure resist confession was argues sent McClinton, confess.” United States v. constitutionally impermis- of a product (8th Cir.1992). F.2d plan, but were bait and switch there sible making denied Clark threat police trickery by the dis- no ening by statements attributed to him court, Spring, 479 U.S. trict see Gregory, Hearing Tr. at and the dis Supreme and the Court “has S.Ct. not, trict court found that he Dist. Ct. by that mere silence law en- never held at 7. credibility findings Order subject officials as to the matter forcement district court are entitled to deference. ‘trickery’ interrogation an is sufficient to Barahona, 990 F.2d at 419. ar of Miranda suspect’s a waiver invalidate gues his decision to confess after see 576,107 Id. at S.Ct. 851. rights.” ing picture police of his children in custo clearly must and un suspect A only dy explained having could lawyer in order to request ambiguously been threatened. As the district court right Fifth Amendment trigger his noted, however, Gregory’s testimony own States, Davis v. United 512 U.S. counsel. proof that he indicated himself demanded 452, 462, 114 S.Ct. L.Ed.2d family’s presence of his at the station so (1994) lawyer” (“Maybe I should talk to gauge that he could the likelihood that his trigger Fifth Amendment is insufficient to giving police wife could be incrimina counsel). Gregory clearly did not right ting Grego evidence. Dist. Ct. at 7. Order lawyer request when unambiguously that I ry “[T]he testified: reason needed said, attorney an “I don’t think need he picture to know Denell was here [was] Syslos Tr. 183. The Hearing this.” you guys prove because wouldn’t this with voluntarily, station went to the Id., quoting Gregory a confession.” out questioned, would be informed that Tr. at lines 303-04. these cir agreed to answer. Under cumstances, their Miranda waivers were The record does not indicate if officers had told Gregory susceptible police pressure invalidated even the was a for signing waivers them or that his will was overborne. Jones, v. 886 F.2d mality. Russell police security guard, had worked as Cf. Cir.1989) (statement (8th admissible him in an un previously interrogated had only contention that he despite defendant’s investigation. related Government Exhibit rights and confessed because waived his confess, agreed after he 8. Even ”). police him “he ‘had to’ The district told reflected a attitude. statements confident concluding err in court did not (“defiant”); Tr. Mag. Rep. Hearing at 6 at and intelli Syslos’ knowing waivers were (“real (testimony Myers) of Inv. defi gent. “confident”). famil ant” and He showed iarity procedure with criminal when he whether a waiver or determine To stated, “If it was for a confession not voluntary, was a court looks confession proved not have this. There were no could totality of the circumstances and There’s no evidence left.” fingerprints. must determine whether the individual’s Casal, Tr. at lines 305-06. v. Hol will was overborne. United States Cf. (8th Cir.1997) (suspect F.2d at 1228-29 not coerced loway, 128 F.3d (waiver); by knowledge pregnant girlfriend was Jorgensen, v. United States in custody police legitimate when up rea- kids will end with somebody we don’t know, son to take her to station and did this?”). not did you do This statement respect threaten him in to her or recruit independent reveals deliberate confess). persuade her to him to The dis- thought rather than an overborne will. trict court in denying Gregory’s did not err Moreover, Denell testified that she knew suppress. motion to the officers making “were efforts to con- mother-in-law,” tact [her] Hearing Tr. at Denell argues that the district court 167, and the sound of Denell’s voice in her suppressed should have her entire state- taped interview corroborates Hruza’s testi- ment because she felt coerced when first mony that controlled, her demeanor was threatened with possibility jail. De- id. at 109. nell contends that she waived her Fifth privilege only Amendment after she had The dissent states that the district placed been in a police dominated atmo- court found that the children kept were sphere, her children had been left police station for purpose of coerc caretaker,

room with an unfamiliar and ing Denell’s confession and that this find Hruza jail had threatened if she were un- supports ing suppression of Denell’s Illinois, Lynumn truthful. 372 U.S. Cf. entire confession. Neither (1963) 83 S.Ct. 9 L.Ed.2d 922 court nor magistrate judge found that (confession involuntary police when sur- the children police were taken to the sta rounded woman and threatened to cut off tion for purpose inducing confes put her state aid and her children in foster sions, however, and the findings of fact care). The district court concluded that indicate agreed that Denell to take them voluntary Denell’s waiver was and that her along as a matter of expediency. On the will overborne at the time she court, record before the district it could made her initial statement. have reasonably concluded that the chil conclusion supported by is This presence dren’s at the station did not be the record. voluntarily Denell took her gin to any exert coercive influence on De- station, children to the Mag. Rep. at nell until she realized that would not 3, and the officers obtained a caretaker for be able picked up by to be a relative. The id,, there, them once at 5. She district court thus did not err when it questioned by only single female suppressed only by statements made De- officer. argues she was nell after ap her interview resumed at coerced by Hruza’s statement that she proximately p.m. 1:40 would not long as as she did not The district court examined the lie, but transcript shows that it was totality of the circumstances and concluded Denell who introduced the issue of the that Gregory’s waiver induced said, children’s welfare when she “If I coercion, trickery or that Denell’s waiver my didn’t have worry children to about I voluntary, was and that Denell’s state might lie to thinking that I gonna voluntary ments were until point the when butt, my save if Greg goes away but some suppressed. were We find no error body my has to be there with kids and Moreover, in these determinations. they’re my 15, kids.” Denell Tr. at lines intentions behind the 9, 748-50. See also officers’ actions Denell Tr. at do lines (“And 453-459 I not asked control the issue of [Gregory] point whether waiver or blank I... gonna confession get voluntary. knock on the Whren v. Cf. door.. says States, .and he I 806, 812-13, no didn’t do it.... United 517 U.S. 116 [And I don’t 1769, (1996) (officer said] wanna our S.Ct. 135 L.Ed.2d 89 868 his confes- suppress motion to Gregory’s proba of whether not determinative

intent existed); Stansbury v. sion. cause ble Califor 1526, 323-24, 318, 114 S.Ct. nia, 511 U.S. case present in the findings factual (offi curiam) (1994) (per L.Ed.2d 293 128 planned Myers and Clark establish of whether not determinative intent cer Gregory to come time to induce ahead of v. Con custody); Graham suspect was voluntarily because station 1865, 397, 104 nor, S.Ct. 490 U.S. handwriting wanted a purportedly Myers (officer (1989) not de intent L.Ed.2d forgery investigation. sample for her force was whether excessive terminative judge specifi- magistrate However-—as seizure); v. New York during used planned further cally found—it was 649, 656 n. 104 S.Ct. Quarles, 467 U.S. opportunity ques- use the would Clark (officer (1984) intent L.Ed.2d 550 burglary. the bank Gregory about tion safety public of whether not determinative (“Clark Myers and Rep. 2-3 Mag. See existed); warnings exception to Myers ask whereby would designed plan Innis, 291, 301- 446 U.S. v. Rhode Island LPD station to come to the Gregory Syslo (1980) L.Ed.2d 100 S.Ct. handwriting exemplar connec- give a (officer of wheth determinative intent not investigation while forgery tion with interrogated). suspect was er to search the warrant executed a Clark and he then would ques- Syslos’ residence III. bur- with the Gregory in connection tion record, reviewing the thoroughly After added). (emphasis investigation.”) glary district court did not that the we conclude informed Myers may While The district analysis. or in its err might questioned about that he be re- thorough de novo conducted court matter, that he never indicated forgery she rejected and view, findings, made careful the bank bur- interrogated would judge’s recommen- magistrate some all planned had the two officers glary, as independent It its exercised dations. (“In accordance with id. at 3 along. See incriminating re- to exclude judgment Gregory and sched- plan, called the second during made that Denell marks Be- meeting October uled interview, including statements part of problem, of a work-related cause burglary known about had that she meeting Myers and rescheduled called and that after it occurred immediately Myers did following day. a.m. the to 10:30 a master obtained Gregory had had known these Gregory during either burglary. inform We key the bank before ques- also be he would two contacts that by made the statements conclude burglary July about the tioned Ith which were not added). Bank") (emphasis If NBC court were suppressed by happened, all that would voluntary intelligent, knowing, disposi- court’s district disagree with the were not rights their constitutional case. See Colorado tion of violated. 107 S.Ct. 479 U.S. Spring, conviction judgments of Accordingly, the (“This mere held that never Court has affirmed. are officials as lawby enforcement silence interrogation is subject of an matter dissenting. McMILLIAN, Judge, Circuit a suspect’s to invalidate ‘trickery’ sufficient I. However, rights.”). waiver of Miranda Miranda Gregory his Myers read after I begin, dis- dissent. To respectfully looking was over Gregory while rights, and disposition court’s the district with agree

869 form, [may Gregory “asked sufficient invalidate a sus- rights be] the waiver attorney pect’s an of the Fifth whether he needed waiver Amendment Myers for Myers respond- handwriting exemplar. privilege.”6 just this a believe is such a ’ ‘No, reading person’s a and stated ed circumstance. The Miranda warning, es- ‘just was in this situation rights case, pecially “just in this was not a for- formal- ” 5 added). Rep. (emphasis at 4 Mag. ity.’ mality,” Myers it. very knew The ob- rights signed then the waiver of jective plan of the bait-and-switch she had being uphold now used to form which is hatched with oppor- Clark was to use this burglary. confession the bank tunity to extract a from Grego- confession ry burglary. Myers to the bank Yet de- specif- light magistrate judge’s In of the liberately suggested that self-incrimination Myers Grego- indicated to findings ic concern, prem- was not a cause for on the an ry attorney, that he did not need only ise that he was there connection warning him the that she told forgery investigation. By saying with her “just formality,” clearly this case is warning “just the Miranda Spring, from v. distinguishable Colorado formality,” him she indicated to in- 577, 851, McKee 479 107 S.Ct. U.S. voking right his to remain silent and his 837-38, Nix, upon F.2d at which the v. 995 right attorney to an would not make a dif- In- majority rely. district court and the ference, knowing full well that it would deed, in 479 U.S. at Spring, Colorado an 851, make enormous difference because he Supreme n. the Court S.Ct. circumstances, that, interrogated was about to “af- be about the observed some burglary. Myers did not misrepresentations by police the bank remain firmative Supreme Spring quoting very language same from 6. Footnote 8 of the Court's 5. After the magistrate judge’s report majority in the opinion states full: majority points opinion, out in a footnote circumstances, In certain Court has telling denied that he did misrepresentations by found affirmative attorney saying that not need an and denied police suspect’s sufficient to invalidate a warning "just formality.” the Miranda privilege. waiver of the Fifth Amendment supra majority See at n. 3. The then makes the See, Illinois, e.g., Lynumn v. 372 U.S. confusing rather comment that: "The fact (1963) (misrep- S.Ct. L.Ed.2d 922 magistrate judge did not allude to the that the by police suspect that a resentation officers conflicting testimony officer’s does not neces- deprived of aid for sarily rejected (citing would be state financial mean he it.” Id. Dist. 2). magistrate judge’s dependent cooper- Ct. Order at factu- if she failed to child themselves, and, findings speak al ate with authorities rendered the subse- court, by adopted extent involuntary); quent Spano v. confession 1, 5, (adopting Ct. Order at see Dist. York, 79 S.Ct. New 360 U.S. magistrate judge’s report and recommenda- (1959) (misrepresentation by L.Ed.2d 1265 respects tion "in as it relates to all. suspect’s friend that the friend would Syslo”), they accepted true on must as suspect job lose his as a officer if the appeal We absent clear error. have never cooperate rendered statement failed to required expressly reject a lower court case, involuntary). we are not con- In contrary evidence in order for its factual find- misrepresenta- fronted with an affirmative ings appropriate to be afforded the deference tion law officials as to the enforcement Moreover, clear error under the standard. interrogation scope and do reach portion district court's order which question a waiver of Miranda whether majority supra, support- cites in note as rights would be valid in such a circum- 2”) ing authority (“Cf. Dist. Ct. Order at stance. part comes from a of the district court's order 479 U.S. at 576 n. 107 S.Ct. 851. making independent where the district court is concerning of fact Denell’s motion to suppress. regarding burglary, the bank adminis- subject matter of tion merely silent warning.7 she made affirmative interrogation, tered a new Miranda Grego- and obtained misrepresentations stated, hold, reasons I would For the deception. rights by ry’s waiver of review, that upon Gregory’s de novo waiv- Spring v. nor Colorado In neither confession, rights of vis-a-vis the er did the law enforcement v. Nix McKee voluntary under burglary, bank were suspect that an indicate officers totality of the circumstances. Accord- suspect or tell the not needed attorney was I would remand case to ingly, “just a warning was the Miranda sup- court with instructions to misrepresen- make a similar formality,” or press his confession. case did deliber- tation. In neither that the suspect to believe ately lead II. purpose, a limited was for rights waiver of court’s disagree I also with district pur- upon it for a different rely and then suppress disposition of Denell’s motion and McKee v. Spring v. pose. Colorado the district court related, her statement. While materially yet stand for the Nix that, conclude that Hruza’s tactics became different, once a waiver of did proposition exe- validly generally during the course of the rights unduly has been coercive cuted, (a in effect even may it continue with which I do interrogation finding interrogation may topic of the though the court did not find the agree), the district suspect. warning to the change without sufficiently coercive to circumstances until into Hru- overcome Denell’s will well justified majority’s decision Nor is the interrogation za’s of Denell. would hold Jones, at cited v. 886 F.2d by Russell at an that Denell’s will was overborne ear- opinion. In Russell majority in the Jones, brought pursuant point to 28 in time. an action lier that, noted not- § this court U.S.C. determining In that Denell’s statement petitioner’s claim withstanding the suppressed starting page should be sign him he “had to” police had told transcript 41-page fine confession, “there waiver and (Govt.Exh. 11), district court reasoned misbehavior,” police no as follows. finding support and the record did Syslo placed police any improp- police engaged that the expressly atmosphere dominated bar, by Id. In case er actions. that, “told the threatened unless she contrast, specifically magistrate judge truth,” would not be allowed to leave she Gregory Myers said “No” when found with her children. Denell the station attorney and told if he needed an asked officers was confronted several warning was the Miranda police taken to the station home and was ex- formality,” which—as “just a .one officer police in a vehicle after clearly improper under the plained'—was for the helped her dress the children circumstances. totality of the testimony hearing reflects trip. making refrained from should have either upset upon children were Syslo that the or, misrepresentations the affirmative at the station and had arriving introduced Clark to the time she time period for a before interroga- be comforted purposes initiating Clark’s for Greg- stayed the first five to ten minutes only Myers Clark to did introduce 7. Not Mag. Rep. would be ory interrogation. that Clark at 4-5. and inform See burglary, questioning about the bank him they were left in the lounge fore officers’ could be left in a room with a supervision under the aof of member volunteer caretaker. Although efforts the victim witness unit. The fact that were made contact to Denell’s mother-in- Syslo Denell was aware that her three- law, the children were not to be removed n year-old upset by day’s son was the police from the station. See Dist. Ct. Or- events is reflected Exhibit 5. After (“In der at present case, only placed her children were nearby express were threats made to Denell Sys- room with a stranger, Denell was not lo concerning children, her but is there allowed to contact a relative to come and no evidence of any legitimate purpose retrieve children. Denell was also supporting the children’s detention at the husband, asked to write two notes to her police station when Denell sought to have both which designed convey were her mother-in-law remove them prior to fact him the that the children were the interrogation.”). Indeed, the district being police held at the station along court concluded the children were with Although her. is there evidence kept police at the station very for the educated, Syslo is Mrs. there is no purpose of coercing Denell into confess- indication that any previous she has had (“[I]t ing. See id. seems to me that the exposure police interrogation. The children kept at the station in order pages latter of the transcript Denell to assist the in coercing officers a confes- Syslo’s present statement dialogue be- sion from Syslo.”); Denell id. at 2-3 tween a distressed mother who wanted (“The notion that the children were being police leave station with chil- kept at police station in order to as- police dren repeatedly officer who police sist in coercing a statement played upon this by making distress from supported Denell is by Investigator threats. find that government has that, testimony Hruza’s although Denell portion failed to establish that Syslo’s mother-in-law was to be contacted Denell’s statement beginning page on Denell’s behalf and informed that De- line and continuing through its nell, Gregory, and the children were all conclusion was not obtained through co- station, police at the part it was not a ercive tactics that overbore the will of arrangement to allow the mother-in- Syslo, Mrs. and therefore that portion of law to take the children from the station suppressed. statement must be desired.”). as Denell Denell was given (citation omitted). Dist. Ct. Order at 5 option no other but to leave her dis- As district court recognized, Denell traught three-year-old and eleven-month- brought police station with baby old in an place, unfamiliar out of children, very her two young whom she her sight, complete with a stranger. could not obviously leave at home alone. circumstances, Under these Hruza pro- station, While en route to the Hruza in- ceeded to separate take Denell into a in- formed Denell that she was not free to room, terview where began question- she (“On leave. Mag. Rep. at 3-4 way their Denell, ing “repeatedly play[ing] upon to the station Denell asked whether she [Denell’s] distress making threats.” Id. arrest. responded under Hruza she (as at 5. “threats” Hruza’s arrest, was not explained under but them) presented court described investigative was under detention and leave.”) added). with a your- could Hobson’s choice: incriminate (emphasis station, your When self and home with arrived at the children or upset children were and it yourself some refuse to incriminate took and immedi- time for Denell to calm jail, them be- ately go leaving down them to suffer the to be put you okay loud and clear mes- but need

consequences. confessing any- to be that truthful and not hold back from me sage continued a re- for Denell to ensure only way the Id. at 1797-99. “[Y]ou more.” lines children. union with her gonna you tell the truth I’m not take to ticket, may you proba- are jail. get You tape following was the first record- ticket, ed, bly going get okay to but I won’t by Hruza: threat made keep you jail. you take to If lie to me and my I I had doubt DENELL SYSLO: lying you likely going go to me are most to [Grego- I know for sure he mean didn’t 36, Finally, jail.” to Id. at lines 1880-83. you flat out but know I ry] didn’t tell me jail in go “You can over there and sit the my I had doubts but he you didn’t lie to you go your with him or can home with came flat out and told me. He never 37, kids.” Id. at lines 1946^47. it I just, you danced around like told he you if I did ah know I’m not well what my opinion, In there is no material dif- you I doubted. gonna lie to Hruza’s found ference between statement Okay INV. HRUZA: (Govt.Exh. transcript page on of the I DENELL SYSLO: wondered 11), on beginning and the later statements you long Well as as INV. HRUZA: did page 33. The mere fact that Hruza jail. you’re going If lie don’t expressly not herself mention the children you they might decide that there’s lie inconsequential in the earlier statement is you jail you take reason to explicitly threatening Hruza because something. not stick around or would jail. Denell with immediate detention my If I DENELL SYSLO: didn’t have Hruza course knew that Denell was worry might about I lie to children to thinking about the effect her detention my I you thinking gonna that was save children, and Hruza was would have away somebody Greg goes butt but if obviously insinuating that Denell would my they’re there with kids and has be it there to take care of them.9 believe my kids. court not to was clear error for district you you’d guess know INV. HRUZA: implicitly threatening find that Hruza was you prefer there. time, was, by point Denell and critically im- overbearing Denell’s will and 11) (Govt.Exh. Transcript page line capacity her for self-determination. pairing (emphasis through page line 752 Pierce, added). See United States v. F.3d (8th (“In Cir.1998) considering wheth- proceeded, interview Hruza be- As the voluntary, the determi- er confession her increasingly forthright making came question native is whether the confession threats, following examples illus- as violence, threats, or was extracted right you’re know now sit- “[Y]ou trate. promises (express implied), or such that or ting on the line whether defendant’s will was overborne and his your of here with kids?” Id. you walk out capacity for self-determination was or 1704-05. “You know I don’t lines critically impaired. making In this deter- you away your wanna take from kids that, beforehand, tape rec- although because Hruza did not 8. Hruza admitted she obtained began, tape beginning interrogation, before the recorder interview of the see ord tape right away. did recorder not start dialogue suggests supra note to me that Hearing Tr. at lines 7-12. they previously discussed the uncertain fate of the children. Indeed, although exactly we cannot know transpired what between Hruza and Denell urination, totality courts look at the home with Indeed, her children. as the circumstances, including the conduct of the concluded, district court very purpose law enforcement officials the defen- of detaining the children at the sta- (em- capacity pressure.”) dant’s to resist tion for the duration of Denell’s interroga- (citations added) omitted). phasis tion, rather than allowing them to be picked up by grandmother, their was “to

Finally, in an effort to Hruza’s justify assist the officers in coercing a threats, confession repeated government argues from Syslo.” Dist. Ct. Order at 5. were not coercive because expressions were mere of what gen- Hruza hold, I would upon review, de novo uinely However, believed to be true.10 most, all, if not tape-recorded Denell’s testimony from suppression hearing product statement was the of an overborne belies that assertion. Detective and, therefore, will provided was not vol- testified she was the one who obtained untarily totality under the of the circum- approval county attorney from the for De- stances. I would reverse the district release, nell’s and the issue of Denell’s court’s denial of her motion to suppress as up truthfulness never came in her conver- to the first pages 41-page tran- sation with county attorney about (Govt.Exh. script 11), and I would remand whether or not Denell should be released. Denell’s case to the district court with contrast, By problem having instructions suppress the statement place the children in foster care if Denell starting at page least line in up held did come as a reason transcript. her, in releasing any favor of without men- tion of any Denell’s truthfulness or other

condition.11 This evidence demonstrates was no factual there basis for Hruza’s

repeated Nevertheless, threats to Denell.

from the time Hruza told Denell that she

was not free to leave until the time Denell finally released with her children later, two and a half hours the offi- Denell,

cers convey continued to

through words, their actions and their

she had to confess if she wanted to -government argues: “Officer Hruza [MYERS]: don't think I ever even brought 10. Syslo provided him, understood that if Denell up. I told him that —or I asked false said, might information to the be a problem do have a if we cite and determining factor taken into consideration in felony release for a have her whether Denell could at that time be released up arraignment show for tomorrow since logged jail, or and she so informed Denell.” got she's her kids down here? we Then Appellee Brief (emphasis origi- at 13 place don't have to find for them. And he nal). said, no, problem I don’t if with it you’re comfortable with it. I don't think Upon questioning by magistrate judge any we any- ever went into conditions or suppression hearing, at the Myers testified as thing like that. follows: something [MYERS]: And this is that we— county THE COURT: Did attorney] [the county we have attorney done with the ever condition the decision past. to release De- We've cited and released on felo- Syslo satisfying you nell on her that she was nies before. telling the truth? Hearing Tr. line line 4. notes Denell.4 Id. Gregory 3. magistrate judge testified that he said "I finding don’t think made a re- attorney Myers I need an for this” and that spect conflicting testimony). to other agreed with him and told him Mi- just formality. randa waiver was Hearing said, "Greg you. 4. The first note I love I am Myers at making Tr. denied state- these telling Boys them what little I know. ok. are ments testified that she tells sus- never upset. Hang Jerm [the son] older on. IXO pects attorney. do not need an Id. love.” Government Exhibit 5. The second at magistrate judge 87. The fact that the did you. Telling note said: love what "I little I conflicting to the allude officer’s testimo- Boys telling you know. ok. Am truth. I love ny necessarily rejected does mean that he Kitty.” Government Exhibit 6. (unclear it. Dist. Ct. Order at 2 whether Cf. 435-38, and that Tr. at Gregory lines involvement deny his continued money him count the helped children. to see his she had burglary and asked crime, officers at lines 351-58. when the id. day testified photograph a Polaroid recorded state- part The second showed Denell’s caretaker, his defiant p.m. 1:40 A approximately with at began the children ment “slumped his shoulders changed, recording demeanor can hear that listener involvement forward,” he admitted point, sharper at this tone became Hruza’s Tr. at 76. See Hearing burglary. in the said, protect trying to “[Y]ou’re and she said, later at 6. Rep. Mag. also right you’re now cause know yourself picture I needed this reason “[T]he or you go whether on the line sitting because was here know Denell [was] your kids.” of here with out you walk prove this without you guys wouldn’t Denell 1703-05. Tr. at lines If it sorry. You wouldn’t. I’m confession. known that she had eventually admitted not have you could not for a confession had ob- burglary before no fingerprints. There were proved this. 40, line key, a master id. tained Dist. Ct. Order left.” no evidence There’s day of the told her on the and that he Transcript Gregory Sys- 6-7, quoting proceeds amounted burglary 2000) (Nov. 1, Statement lo’s Recorded

Case Details

Case Name: United States v. Denell N. Syslo, United States of America v. Gregory T. Syslo

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Oct 23, 2002

Citation: 303 F.3d 860

Docket Number: 01-2990, 01-2992

Court Abbreviation: 8th Cir.