Opinion
Criminal No. 98-425 (JBS).
February 8, 1999.
FAITH S. HOCHBERG, United States Attorney, By: Luis A. Valentin, Assistant U.S. Attorney, Newark, New Jersey.
RICHARD COUGHLIN, Federal Public Defender, By: Anne E. Blanchard, Assistant Federal Public Defender, Camden, New Jersey,
OPINION UPON SUPPRESSION MOTIOn
I. Background and Procedural History
Defendant Biao Zhang is charged in a two-count indictment with wilfully and knowingly passing or attempting to pass approximately 52 counterfeit $100 Federal Reserve Notes between November 25, 1997 and December 2, 1997, in violation of 18 U.S.C. § 472 2, and also with scheming to defraud a bank by knowingly attempting to deposit 25 counterfeit notes into his bank account on November 25, 1997, in violation of 18 U.S.C. § 1344 2.
The defendant seeks to suppress oral statements made by him to Secret Service Agents on December 2, 1997, and oral and written statements made on December 5, 1997, on the ground that such statements were not voluntarily given. He alleges that prolonged questioning on December 2nd, coupled with a five-hour polygraph examination by a Secret Service polygraph examiner on December 5th, accompanied by exhortations to confess and threats of incarceration, rendered his oral and written confession after conclusion of the polygraph exam involuntary. In this regard, the principal issue involves alleged threats by a Secret Service Agent that, because his polygraph examination showed deception, the test would constitute powerful evidence against him in court, and he therefore ought to confess before it was too late. He became emotional and then did so, and now claims that these tactics overbore his will.
At the suppression hearing on January 6, 1999, the court heard the testimony of Special Agents Arthur Meletta and Thomas Depiano of the Secret Service, and the testimony of the defendant, Biao Zhang. Based upon the evidence at the hearing, I find the following facts.
II. Findings of Fact
On December 2, 1997, Special Agent Meletta responded to Summit Bank in Princeton, New Jersey, to investigate a deposit of 25 suspicious $100 bills, which he determined to be counterfeit. The deposit had been made on November 25th by Biao Zhang to his own account. As Meletta was in the bank lobby investigating between 2:30 and 3:00 PM, Mr. Zhang returned to the bank, where a bank employee pointed him out to Meletta.
Special Agent Meletta spoke to Zhang, identified himself as a Special Agent of the Secret Service, and told him that he was investigating counterfeit currency. He asked Zhang a few questions in the bank lobby, including his name and the source of the counterfeit notes. Zhang was cooperative and began to discuss the source, saying, "It all began with the incident" He turned over another 25 counterfeit notes to Agent Meletta, and said they were from the same source, namely, a briefcase he took from a roommate, Zhenhai Xie, who had allegedly assaulted him at the boarding house. Zhang and another roommate, Jianlan Zheung, had allegedly decided to retaliate against Xie for the assault and for an act of vandalism Xie had directed against Zheung's vehicle, which resulted in Zhang and Zheung stealing Xie's briefcase containing fifty-two $100 bills shortly before November 25th.
As the bank was closing, Meletta counted the money Zhang had just turned over and determined it too was counterfeit.
After about 10 minutes together in the bank lobby, Meletta asked Zhang if he was willing to accompany him to the Princeton Borough police station to discuss the matter further. Zhang accompanied Meletta in his unmarked van for the five-minute ride to the police station. Meletta did not bring Zhang back to the Secret Service office about 10-15 minutes away. (Tr. 59:1-15.)
At the Princeton Police Department, Special Agent Meletta asked for the courtesy of an interview room, which the local police granted, and he called Special Agent Newsome of the Secret Service to assist in the interview. Agent Newsome joined Agent Meletta and Mr. Zhang at the Princeton police station. The local police permitted them to use a first floor conference room for the interview.
At the outset of this interview, Agent Meletta read Zhang his Miranda rights from his Advice of Rights card (Ex. G-1), and Zhang appeared to understand those rights and said so, asking no questions. The interview continued about three hours, including time for developing or checking on information Zhang was supplying.
Meanwhile, one of the Princeton Police Officers thought he recognized Zhang from a motor vehicle incident. The police determined a municipal court warrant was outstanding for Zhang. The local police made this determination at about 7:00 P.M. and informed Agent Meletta.
According to Meletta's testimony, toward the end of the interview, Agents Meletta and Newsome asked Zhang whether he'd be willing to return in a few days to take a polygraph exam because Meletta believed Zhang knew the money was counterfeit before he came to the bank, even though Zhang continued to deny it. Zhang never admitted on December 2nd that he knew the money wasn't real, according to Agent Meletta. In any event, Zhang agreed to return for the polygraph examination.
This latter assertion is contradicted by the affidavit of Special Agent Mills, dated April 23, 1998, for the purpose of obtaining the criminal complaint herein. Special Agent Mills swore that Zhang stated in substance on December 2 that he knew the money in the briefcase was counterfeit. Agent Meletta is unaware how Agent Mills would have this belief since he had not spoken with Mills about this nor had Zhang admitted his knowledge as of December 2. (Tr. 96:3 to 101:19.)
Zhang also consented to the search of his vehicle by signing a Consent to Search form (Ex. G-3) which is not at issue in this motion. The vehicle search continued until about 8:30 or 9:00 P.M. when they returned again to the police department. The Secret Service interrogation was over for the evening and Zhang was taken into Princeton Borough police custody to deal with the motor vehicle arrest warrant.
Zhang was released on bond for the municipal court matter later that evening. Two days later, on December 4th, Agent Meletta asked Zhang to come to the Trenton Secret Service office the next day, and Zhang agreed.
On December 5th, Special Agent Kevin Rice, a Secret Service polygraph examiner, administered the polygraph interrogation in a small windowless room at the Trenton Secret Service Office. Special Agent Rice obtained Zhang's signature on a "Polygraph Examination Statement of Consent" form (Ex. J1-D), witnessed by Special Agent Meletta, at 10:30 A.M. Zhang also signed the "Polygraph Examination Warning of Rights and Consent to Speak" form at 10:30 A.M. (Ex. J1-E). On the latter form, Zhang specifically initialed the portions indicating, "I have read this statement of my rights and it has been read to me, and I understand what my rights are," and, "I voluntarily waive my rights and I am willing to answer questions at this time." (Id.)
The questioning began, conducted by Special Agent Rice. Special Agent Meletta and Special Agent Thomas Depiano were usually outside the small room during the polygraph examinations, and Rice was the examiner. The questioning by Rice focused on several areas, one of which was whether Zhang had knowledge that the bills were counterfeit before he deposited them at the bank. The polygraph questioning continued for about five hours until 3:30 P.M. (Tr. 115-116), with pauses when Rice would interpret the responses and leave the room to consult with Meletta and Depiano. Several times during the course of the polygraph exam, Agent Rice would come out of the room and tell Agent Meletta that Zhang was being deceptive as to the one question of his prior knowledge which he continued to deny. (Tr. 120-122.) Rice told Meletta that Zhang was still having difficulty with that one question. (Id.) Rice didn't inform Meletta of any percentage of likelihood of deception, but he did tell Zhang toward the end of the repeated re-interviews that he was being deceptive.
During the five hours in the interview room, Zhang apparently never left, while Rice and the other agents would come and go. The polygraph device was set up at a desk. There were two chairs, no windows, and the size was about 10 x 10, according to Meletta. Agent Meletta had contact with Zhang during breaks in the examination, at one point asking whether Zhang wanted lunch, which Zhang declined about 12:30 P.M.
Agent Rice repeated his administration of the polygraph interrogation three or four times, and Zhang continued, on each round of interrogation, to deny knowledge and Rice read that response as being deceptive. (Tr. 123:23 to 125:16.) When the exam was concluded and Zhang would not change his denial of prior knowledge, Agent Rice advised Zhang and Agents Meletta and Depiano of the results and left about 3:30 P.M. According to Meletta, Rice had told Zhang the results of the test, that Zhang was being deceptive with the answers referring to whether he knew the money was counterfeit. (Tr. 118:1 to 120:2.) Zhang's testimony confirmed that originally Agent Rice advised Zhang of the polygraph examination results. (Tr. 211.)
Back in the interrogation room, Depiano and Meletta advised Zhang that the polygraph examination results showed he was being deceptive. (Tr. 128:6-13.) They said they wanted to afford him the one last opportunity to tell the truth.
Special Agent Meletta testified at various points about his advice to Zhang and about his understanding that the results of the polygraph exam could be admissible against Zhang, including the following excerpts.
On cross-examination, he testified as follows (Tr. 141:11 to 144:5 (objections omitted)):
Q. Okay, so you go in and you tell Bill [Zhang] in the interview that if, if charges are brought against him, that this polygraph shows that he is lying, correct?
A. I'm not sure if I exactly tell him that. I mean I'm assuming he knows that's, that would be evidence brought into the case.
Q. So, and you assume that it's evidence going to be brought into the case? [Objection] . . .
Q. You told Bill that there was evidence, now that he's being deceptive about the question as to when he knew that it was counterfeit, that is that he knew before he deposited, you told him you had evidence about that, you told him that could come in against him at trial and that it would come in against him, correct?
A. I don't know if I told him in those exact words that that would be used against you in a court of law. I'm assuming he realizes that he was being deceptive, we have that information and that's a tool that we could use.
Q. Okay. And not holding you to the exact words, but that you led, let him know that that was evidence you had in the case that you could use as a tool, correct?
[Objection overruled.]
A. Yes.
Q. Okay. And you also told him that the polygraph, that you also told him that Agent Rice is a qualified expert in that test, correct?
A. I don't recall saying that. I believe Agent Rice advised Mr. Zhang of his qualifications.
Q. I'm asking if you told him that. You don't recall telling him that?
A. I don't recall telling him that.
Q. But you did tell him, did you not, that Agent Rice could testify against him in a trial?
[Objection overruled.]
A. I think at this point of the investigation and the interview, I believe Agent Depiano was taking the lead in the questioning, so I can't recall exactly as to what was said by Agent Depiano what I had said.
Q. But either —
A. Because Agent Depiano at this point was taking the lead in the interview.
On continued cross-examination, Special Agent Meletta testified that his pointed references to the prospect of the use of the polygraph against him caused Zhang to break down and become emotional (Tr. 145; 13 to 146:16), as follows:
Q. Then let me ask you, what is it that you do say that Bill goes from adamantly holding to the fact that he didn't know it was counterfeit to all of a sudden writing out a two page statement saying that he knows it's counterfeit; you said nothing to encourage him to do that?
A. We, we basically advised him that he's being deceptive with that one issue, the polygraph exam indicates that you're being deceptive with that one issue. We are affording you the opportunity to tell us the truth at this time.
Q. And you told him, did you not, that you had the evidence that you needed against him, that he might as well tell you the truth since you already knew, is that correct?
A. At this point, I believe Mr. Zhang started narrating the incident that had occurred between him and his roommate, and I believe at this point is when he started becoming upset with the incident that had occurred.
Q. He starts to get emotional?
A. Yes.
Q. Okay. And what happened?
A. At that point he is claiming to be the victim here; that we should focus our attention on Shea [Xie], and we advised him we can't focus our attention on [Xie] until we confirm the truth with you.
Q. So he was telling you about the assault that took place with Shea holding the knife up to his throat?
A. That's correct.
Q. Okay. And he's getting emotional telling you; that's what started all this, correct?
A. That's correct.
Special Agent Meletta testified, in response to the court's questions, that he told Zhang that the polygraph examination is evidence that could be used against him in court (Tr. 173:13 to 174:5):
THE COURT: And was it for these purposes, sometime after 3:30, when you went back to our defendant to give him one last opportunity to tell the truth?
THE WITNESS: Yes.
THE COURT: Was it in that conversation that you told him that Special Agent Rice's opinion could be used against him at trial?
THE WITNESS: I do not believe if I said that, if Agent Depiano said that, I do not recall if that specifically came up.
THE COURT: Did you tell him that the results of a polygraph examination were strong evidence of him that, in effect, could help convict him at trial?
THE WITNESS: I advised him — I'm not sure if I advised him or Agent Depiano advised him. That is, it is unclear to me. But to the best of my recollection, I did advise him that the polygraph examination is a tool that we can use in court.
Rather surprisingly, Special Agent Meletta believed that his statements to Zhang were accurate, and that a polygraph exam could be used as evidence against the accused in a criminal case, testifying (Tr. 174:11 to 175:2):
THE COURT: Now, are you aware from your training or other experience, that a polygraph examination and its results cannot be used as evidence in a criminal trial in Federal Court?
THE WITNESS: I'm not aware of that. There hasn't really been an opportunity wherever I've had a polygraph examiner in any of my cases.
THE COURT: Did you believe on December 5th that a polygraph could be used as evidence in a criminal case?
THE WITNESS: Yes, I did.
THE COURT: And you never received any training to the contrary?
THE WITNESS: Not to the contrary, no.
THE COURT: Have you ever heard of a polygraph exam being used as evidence in a Federal criminal case?
THE WITNESS: I never heard of it. I've never discussed it. I never thought about it.
Agent Meletta elsewhere restated his belief that the polygraph is usable at trial (Tr. 176:17-25), while Agent Depiano testified to his own understanding that a polygraph is not admissible as evidence at trial but is only used as an interview tool. (Tr. 185:7-17.) Agent Depiano testified that, because he knew that it couldn't be used at trial, he never made such a statement to Zhang (Tr. 186:5-9), although he recalled that he explained to Zhang that "this is a mechanical device, a machine, it's assisting as a tool, and it does measure certain things and in that it's showing that there is deception." (Tr. 185:24 to 186:2.)
I find that, in order to press Zhang to give a statement, Meletta told Zhang that the polygraph results were a strong tool that could be used against him in court. (Tr. 174:1-5.) Depiano testified that he didn't hear Meletta make any such statement (Tr. 179:1-5), but he wasn't always in the room. Depiano recalls saying that "the polygraph is a tool that is showing us that you were — decepti[ve] in this area," (Tr. 183:35) or words to that effect, adding, "I just said it's showing deception, it's telling me you're not being truthful about this statement." (Tr. 183:11-13.)
Zhang testified that he was pressured to give a statement (Tr. 226:3-7 and 228:1-3), even though he disagreed that the polygraph showed deception. He understood the agents to be telling him, after Agent Rice had left, that the results of the polygraph could be used against him. He had continually protested, first to Rice, then to Meletta, that the results were wrong on repeated occasions (Tr. 232:15 to 233:2), but that the agents, especially Meletta, pushed him into giving a confession. (Tr. 234:7 to 235:1).
Zhang testified that Agent Meletta told him that "if I don't write something down and the time is up, . . ., it's already 5:00 o'clock, and he said office [is] closing. . . . If I don't write something down quickly, and they're going to lock me up and send me to jail and I will have to stay there until the trial date. . . . And he also told me on the trial I will, I will still go — I'm going, I'm still going to lose the trial because of the polygraph examination and because agent Kevin Rice can come to the Court and testify against me." (Tr. 235:19 to 236:8.)
Allegedly pressured by the polygraph results and the threat of jail, Zhang then agreed to give an oral statement, followed by a written statement (Ex. G-4), which he prepared in his own handwriting, consisting of two pages. In his written confession, Zhang states that he and his friend Zheung had been suspicious of the money they found in Xie's briefcase, and that by the time he went to a Toyota dealer to buy a mirror with one of the $100 notes, he "knew the money was false." (Id.) He proceeded the next day, according to his statement, to Summit Bank in Princeton and deposited the $2,500 in the same false $100 bills. (Id.)
The signed statement (Ex. G-4) was on a form which included the confirmation that Zhang had been advised by Special Agent Rice of his request to remain silent and the other enumerated Miranda rights, with the typed text stating further: "I understand these rights and I am willing to make a statement and answer questions. I do not want a lawyer at this time and I understand what I am doing. No promises or threats have been made to me and no pressures or coercion has [sic] been used against me. I am making the following statement freely and voluntarily." (Id.)
In determining whether, notwithstanding this acknowledgment of advice of rights and lack of threat and coercion, defendant nonetheless was pressured to confess to the extent that his will was overborne, several more important facts must be mentioned. Zhang was born in China, entered this country on a student visa in 1991, earned a Bachelors degree in January, 1994, and a Masters degree in organic chemistry in May, 1996, from the University of Illinois. He appears to be quite intelligent. His understanding of English is good, and he was generally able to understand most questions and asked for clarification occasionally. His responses were generally appropriate and he had little difficulty making himself understood. He appeared to exaggerate somewhat his difficulty understanding the questions posed on cross-examination by the Assistant U.S. Attorney, while on other occasions, the questions were actually confusing or compound.
He has little knowledge of the American legal system and he assumed (like Agent Meletta) that the polygraph evidence would be used against him as powerful evidence at trial.
He appears to be an emotional individual who attempts to remain placid but is actually excitable. He was cooperative toward the Secret Service Agents, but it must also be acknowledged that he knew he did not have to yield to their every request, such as when he had declined on December 2nd to consent to a search of his temporary living quarters while consenting to a search of his automobile.
He had received his advice of Miranda rights on multiple occasions, beginning on November 25, 1997 when he was questioned by local police in Franklin Township about the theft of the briefcase, indicating his understanding as to each Miranda warning, as well as his waiver of those rights. (Ex. G-5.) He had received oral Miranda warnings on December 2nd, as indicated above, by use of the Miranda Warning card (Ex. G-1), and he had executed the two polygraph examination forms, entitled "Statement of Consent" and "Warning of Rights and Consent to Speak" (Exs. J-1d J-1e). Although the "Warning of Rights and Consent to Speak" form accurately stated, "Anything you say can be used against you in a Court, or other proceedings," (Ex. J-1e), this Secret Service form did not say that the results of the polygraph examination, or the polygrapher's expert opinion derived therefrom, could be used against him.
His confession came between 3:30 — 4:30 PM, following more than five hours of repeated polygraph questioning and follow-up interrogation in a small, windowless room, after the polygrapher (Rice), the case agent (Meletta), and his supervisor (Depiano) had each repeatedly advised him that the polygraph indicated he was being deceptive, and after Meletta and Depiano told him that time was running out and that it was his last chance to confess, and after Meletta told him that his failure of the polygraph exam would be strong evidence against him in court if he did not confess.
III. Discussion of Law
The constitutional requirement that an involuntary statement induced by overbearing police tactics may not be used as evidence against a defendant stemmed from the notions that involuntary statements are inherently untrustworthy, Brown v. Mississippi, 297 U.S. 278 (1936), and that police activity which is overbearing and coercive can offend a fundamental sense of decency, Spano v. New York, 360 U.S. 315 (1959). Later, the Supreme Court's decision in Colorado v. Connelly, 479 U.S. 157 (1986), held that "coercive police activity is a necessary predicate to the finding that a confession is not `voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Id. at 167. Thus, even a statement given to police by one who believes he is hearing "voices from God" due to psychosis, id. at 160-161, will not be suppressed after Colorado v. Connelly unless it was prompted by coercive government misconduct, and concerns with the unreliability of an uncoerced confession are left to be addressed by the Federal Rules of Evidence, such as Rule 601, and not by reference to the due process clause. Id. at 167. If coercive police conduct actually overbore the defendant's will, the remedy is exclusion of the coerced statement, to deter the future use of such tactics. Id. at 166, citing United States v. Leon, 468 U.S. 897, 906-913 (1984).
The court accepted the defendant's pre-hearing proffer of a reasonably specific basis for suppression, based on defendant's alleged lack of understanding of his Miranda rights and involuntariness of his statements, and the court therefore convened the suppression hearing. SeeNardone v. United States, United States v. Harrelson, 705 F.2d 733, 737 (5th Cir. 1983); Grant v. United States, 282 F.2d 165, 170 (2d Cir. 1960).
At the outset, the court finds that the initial questioning of Zhang in the Summit Bank lobby on December 2, 1997, was noncustodial and noncoercive, and hence no Miranda warnings were required. Illinois v. Perkins, 496 U.S. 292 (1990). Defendant has not claimed that this investigative questioning was improper, nor was it in any manner coerced or involuntary. His statements are thus admissible.
As to the questioning of Zhang by Agents Meletta and Newsome at the Princeton Borough Police Department on December 2nd, I assume that this questioning was custodial, and I find that Zhang was orally advised of his Miranda rights at the outset, and that he understood and waived those rights and agreed to answer the agents' questions. Whether his responses to the agents' questioning on December 2nd were nonetheless the product of coercion requires examination of the totality of the circumstances.Arizona v. Fulminante, 499 U.S. 279, 284-85 (1991). The ultimate question is whether the defendant's will was overborne when he confessed, with the burden being placed upon the government to establish, by a preponderance of the evidence, that the challenged confession was voluntary. United States v. Walton, 10 F.3d 1024, 1028 (3d Cir. 1993) (citing Miller v. Fenton, 796 F.2d 598, 604 (3d Cir.), cert. denied, 479 U.S. 989 (1986)).
The factors to be considered include:
the youth of the accused; his lack of education or his low intelligence; the lack of any advice to the accused of his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment such as the deprivation of food or sleep.Miller v. Fenton, 796 F.2d at 604 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)), quoted in United States v. Giampa, 904 F. Supp. 235, 274 (D.N.J. 1995), aff'd, 107 F.3d 9 (3d Cir. 1997).
A court must also consider the statutory factors for the voluntariness determination under 18 U.S.C. § 3501(b), which states as follows:
(b) The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession.
The presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession.
An element of most involuntariness cases has been a finding of police conduct that is coercive, whether psychologically or physically, as the Supreme Court noted in Colorado v. Connelly, 479 U.S. 157, 163-64 (1986): "While each confession case has turned on its own set of factors justifying the conclusion that police conduct was oppressive, all have contained a substantial element of coercive police conduct."
Zhang alleges that the December 2nd interrogation lasted about four hours, until 7:00 P.M., in the police station's rather spacious conference room. He has pointed to nothing unusual or coercive in the environment, police tactics, or circumstances. He was advised of rights orally. He knew the reasons for the questioning. He had contact with Franklin Township police a week before and had been interrogated in the related theft and assault investigation after having received a written advice of rights. He generally possessed the intelligence and maturity to know that he could resist the agents' requests, such as when he refused to consent to the search of his living quarters. The 3 ½ hours of questioning in the conference room was punctuated by breaks in which investigative leads were pursued. The court is left with the firm impression that his decision to answer questions posed to him was voluntary and that nothing the investigators said or did served to overbear his free will on December 2nd.
On December 5th, however, with respect to the prolonged polygraph exam, the court's concerns are more grave. The interrogation by the polygraph examiner lasted about five hours, from 10:30 A.M. to 3:30 P.M., in a small, windowless room at the Secret Service office that Zhang never left. At 10:30 A.M., he consented to the polygraph exam and waived hisMiranda rights in writing. The questioning bore down on his knowledge regarding the counterfeit nature of the currency. He went through multiple rounds of interrogation and analysis of the results by Agent Rice. Each time, Rice would return to Zhang and tell him that the machine indicated he was deceptive. The interrogation would start again, repeating the same series of questions to elicit responses for the polygraph. Moreover, Rice had reviewed his credentials as a polygrapher with Zhang, lending the appearance of greater weightiness to his conclusion that Zhang was deceptive. Zhang nonetheless refused several times to change his answers.
Even after Rice's departure, Agents Meletta and Depiano repeated the refrain that the polygraph was strongly indicating that Zhang was lying to them. Agent Meletta threatened Zhang that, if he did not confess, the polygraph evidence would convict him at trial. I have found that Agent Meletta made such a threat, even though he had no basis in training or experience for believing that polygraph evidence of deception could ever be admissible against the accused. Zhang, who didn't know any better, believed that he would be confronted at trial with this powerful evidence. Even though Zhang disagreed that he was being deceptive, he accepted that the polygraph was indeed a powerful truth-finding tool, the results of which would confront him at trial unless he confessed.
It was at this point that Zhang broke down, became emotionally charged, and confessed. I find that his confession was the product of "police overreaching" under all the circumstances, given the length and intensity of his interrogation regarding his knowledge that the money was fake, coupled with the untrue threat that the Secret Service now had powerful polygraph evidence that would convict him at trial. As in United States v. Swint, 15 F.3d 286, 290 (3d Cir. 1994), this defendant's "will was overborne to the extent that he made a statement that he would not have made had it not been for the misleading actions of the Government." The impact of the interrogation activities and statements by the agents must be examined from the viewpoint of the defendant. United States v. Walton, 10 F.3d 1024, 1029 (3d Cir. 1993).
The entire day's interrogation activity — introducing the expert polygrapher, setting up the machine, repeated rounds of interrogation on the same point, repeated admonitions that the machine's results showed he was lying, and finally the continued interrogation by two agents who kept reminding him of the results, accompanied by one agent's prediction that this evidence would convict him if he didn't confess and that time had run out, — was indeed seriously misleading and, in the totality of the circumstances, it caused the defendant to confess under unfair duress. I find that the agents' statements "were so manipulative or coercive that they deprived [the defendant] of his ability to make an unconstrained, autonomous decision to confess." Walton, 10 F.3d at 1030, quoting Miller, 796 F.2d at 605.
There was, and is, in fact, no possibility that Zhang's polygraph examination results could be used against him at trial. While the polygraph may have a role in law enforcement as an investigative technique, no appellate court considering the issue has held it would permit polygraph evidence offered by the prosecutor to establish the truth or falsity of the statements of the accused in the absence of a stipulation of admissibility by the parties.
See , e.g ., United States v. Sherlin , 67 F.3d 1208 (6th Cir. 1995), cert. denied , 116 S.Ct. 795 (1996); United States v. Sanchez , 118 F.3d 192, 197 (4th Cir. 1997). See generally John E. Theuman, Annotation, Admissibility in Federal Criminal Case of Results of Polygraph (Lie Detector) Test — Post Daubert Cases ," 140 ALR Fed. 525 (1997).
Likewise, the Supreme Court recently had occasion to uphold the per se ban on polygraph evidence in military trials under Military Rule of Evidence 707. United States v. Scheffer, U.S., 118 S.Ct. 1261, 1265 (1998). The Supreme Court recognized that "there is simply no consensus that polygraph evidence is reliable." Id., 118 S.Ct. at 1265. Exclusion of polygraph evidence in military tribunals is a "rational and proportional means of advancing the legitimate interest in barring unreliable evidence." Id. at 1266.
Even though the mandate of a per se rule of exclusion of polygraph tests is open to reexamination, see United States v. Posado, 57 F.3d 428 (5th Cir. 1995), no reported federal case has been found to permit the prosecutor to introduce polygraph evidence against the accused to show that the defendant was deceptive.
In Posado , the Fifth Circuit panel determined that no per se rule excluding polygraph evidence could survive the Supreme Court's test for admissibility of scientific opinion testimony in Daubert v. Merrell Dow Pharmaceuticals, Inc ., 509 U.S. 579 (1993). Prior to the adoption of the Federal Rules of Evidence, the Daubert Court noted that the "general acceptance" test of Frye v. United States , 293 F. 1013 (D.C. Cir. 1923), governed admissibility of scientific tests. That is, under Frye , the proponent was required to demonstrate that the test or technology in question had achieved general acceptance in the scientific community in order to be a candidate for admissibility. Frye itself dealt with an earlier, crude version of the polygraph which had not met general acceptance in the scientific community . Daubert , of course, dealt with scientific methodology in proof of medical causation, applying the standards of Rules 702 and 703 of the Federal Rules of Evidence . Posado concluded that it could not rule out the possibility that results of a polygraph could be found to satisfy the evidentiary requirements of reliability in methodology and administration, as well as helpfulness to the trier of fact, in a particular case .
The fact that a polygraph examination was administered can be admissible for the prosecution under certain limited purposes, not including as proof that the defendant lied.
Such uses might potentially include revealing circumstances leading to a confession, Tyler v. United States , 193 F.2d 24 (D.C. Cir. 1951), cert. denied , 343 U.S. 908 (1952) ; United States v. Kampiles , 609 F.2d 1233 (7th Cir. 1979), cert. denied , 446 U.S. 954 (1980) (permitting government, in face of defendant's challenge to voluntariness of confession, to present evidence that defendant had first been informed he failed the polygraph exam) ; United States v. Johnson , 816 F.2d 918, 923 (3d Cir. 1987) (following Kampiles in permitting possibility of government's introduction of polygraph evidence to rebut defendant's assertion that his confession was involuntary); and United States v. Weiner , 988 F.2d 629 (6th Cir.) , cert. denied , 510 U.S. 848 (1993) (admitted for limited purpose of rebutting defendant's testimony that his cooperation with government had ended due to a "disagreement," when in fact it ended because he was an unreliable informant who had failed a polygraph exam) .
Whether in the future polygraphs will attain the reliability necessary to be admissible against the accused under the Federal Rules of Evidence need not be predicted here.
It suffices to say that there is no indication that federal courts are inclined toward admitting polygraph results against the accused; even courts considering admissibility of a polygraph offered by a defendant have shown marked reluctance to permit it. Indeed, even a court such as the Fifth Circuit in Posado , supra , which has shown an openness to considering the admissibility of polygraph evidence in light of the applicable tests of scientific expert opinion in Daubert v. Merrell Dow Pharmaceuticals , 509 U.S. 125 (1993), has expressed this possibility only in the context of a defendant 's offer of supposedly favorable polygraph evidence , United States v. Pettigrew , 77 F.3d 1500, 1514-15 (5th Cir. 1996) ( but affirming exclusion of defendant's offer of favorable polygraph result). Likewise, the Ninth Circuit has left open the possibility that a defendant could offer his own evidence that a polygraph examiner had adjudged him truthful when he denied knowledge of cocaine in his van, abandoning the per se rule against polygraph evidence offered by a defendant . United States v. Cordoba , 104 F.3d 225, 228-229 (9th Cir. 1997) . See footnote 8 .
Following Cordoba , the Ninth Circuit has likewise affirmed the exclusion of evidence offered by the defendant, who wished to show that he had offered to take a polygraph examination; such evidence was not per se inadmissible, but its exclusion was well within the trial court's discretion . United States v. Elekwachi , 111 F.3d 139 (9th Cir. 1997) .
In short, recent developments in the law would not give a federal agent any reasonable basis to believe that the polygraph results, as interpreted by Agent Rice, would be evidence against Zhang at trial. As Special Agent Depiano acknowledged at the hearing, such tests have not been admissible against the accused in federal court.
Not all misleading or deceptive conduct by interrogating agents is coercive for purposes of inducing a person to confess. There is no per se rule of involuntariness when an interrogation is accompanied by psychological, as opposed to physical, coercion. Miller, 796 F.2d at 604;Giampa, 904 F. Supp. 274. Some courts have found that, under particular circumstances, even the fabrication of evidence used to confront a defendant with his own guilt as a psychological ploy does not necessarily render a subsequent confession involuntary. For example, an agent's statement to the defendant that the defendant's fiancé might be charged when in fact the agent knew she would not be, while deceptive, was found not to have been coercive under the circumstances, since the trial judge properly found that the defendant did not believe that his confession would be necessary to set his fiancé free. United States v. Carter, 910 F.2d 1524, 1529 (7th Cir. 1990), cert. denied, 499 U.S. 978 (1991). Likewise, an officer's misstatement of the purpose of the interrogation, statements of disbelief, and untrue suggestions that an eyewitness saw defendant, were found not to have coerced his confession under all the circumstances when reviewed in a section 2254 case. Evans v. Dowd, 932 F.2d 739, 741-742 (8th Cir.), cert. denied, 502 U.S. 944, 112 S.Ct. 385 (1991). While these and similar ploys could have led those trial judges to find involuntariness, the findings of non-coercion were not clearly erroneous.
Similar cases in this vein are listed in Swint , 15 F.3d at 290-291 n. 6, to which the Third Circuit added: "However, a '[determination of whether a statement is involuntary `requires more than a color-matching of cases.'. . . It requires careful evaluation of all the circumstances of the interrogation.'" Id , quoting Mincey v. Arizona , 437 U.S. 385, 401 (1978) (citations omitted). Manipulative tactics that do not overbear a defendant's free will do not rise to the level of impermissible coercion. In the present case, on the other hand, as in Swint , it is clear that forceful, prolonged, authoritative misstatements about the usefulness of the polygraph evidence against Zhang wore him down even though he did not believe he was being deceptive. The pressure on Zhang arising from these coercive tactics caused him to become resigned to the belief that it was no use repeating his denials of knowledge when the polygraph evidence would be used against him if he didn't change his story .
Ultimately, it was the government's burden to prove, by a preponderance of the evidence, that the defendant's confession was voluntary, Lego v. Twomey, 404 U.S. 477, 487-89 (1972), that it was the product of a rational intellect and a free will, and that the defendant's will was not overborne. Swint, 15 F.3d 289, citing United States ex rel. Hayward v. Johnson, 508 F.2d 322, 326 (3d Cir.), cert. denied, 422 U.S. 1011 (1975) (citations omitted). I have found, for reasons stated above, that the United States has not met its burden upon this point, with respect to all statements of Zhang, whether oral or written, after the conclusion of the polygraph examination at about 3:30 P.M. on December 5th. Thus, his statement (Ex. G-4) shall be suppressed.
Following Cordoba , the Ninth Circuit has likewise affirmed the exclusion of evidence offered by the defendant, who wished to show that he had offered to take a polygraph examination; such evidence was not per se inadmissible, but its exclusion was well within the trial court's discretion . United States v. Elekwachi , F.3d (9th Cir. 1997) .
The accompanying Order is entered, granting the suppression motion in part and denying it in part.