APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Daniel R. Domínguez, U.S. District Judge.
Barry S. Pollack, with whom Pollack Solomon Duffy LLP was on brief, for appellant.
María L. Montañez-Concepción, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, were on brief, for appellee.
Before Torruella, Lynch, and Barron, Circuit Judges.
LYNCH, Circuit Judge.
At issue are the proper procedures for determining whether a confession is voluntary under Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). The procedure followed by the trial court was based on an error, so we vacate the defendant's conviction and remand for further proceedings consistent with this opinion. See Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967). Although issues under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), existed earlier, they are not raised in this appeal.
Victor Feliz, a youth with no prior record, was convicted in December 2012 of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), and possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). His conviction was based largely on two written confessions. Before trial, Feliz moved to suppress the confessions as involuntary, being induced by threats made to him as to repercussions to his mother and his young siblings if he did not confess.
The magistrate judge heard testimony from two police officers that the confessions were freely made, and, contrarily, from Feliz and his mother that the government
had dictated to him his confessions, which he signed, after officers threatened his mother with deportation and his siblings with being put into state custody. The magistrate judge recommended that the confessions be suppressed as involuntary. As relevant here, the government filed objections as to the magistrate judge's factual finding that the statements were dictated and the conclusion that the statements were involuntary.
The district court conducted a de novo hearing. There, the district court excluded the defense testimony about the circumstances of the confessions involving police pressure as hearsay. It then made a series of ambiguous statements to the effect that any issue about credibility going to the voluntariness of a confession was for the jury, not for the judge, to decide. Then, about two months later, it directly ruled and stated that it admitted the confessions into evidence, because, in its view, the record before it contained no evidence of coercion (having excluded that evidence on hearsay grounds). On review, we cannot conclude that the confessions were voluntary, because the district court erroneously excluded from consideration the critical evidence to the contrary. We vacate and remand.
A. Factual Background
On February 3, 2012, at 5:45 a.m., Puerto Rico police executed a search warrant at a home in Dorado, Puerto Rico. Five officers arrived at the house, where they found Feliz's mother, stepfather, minor sisters, and infant brother. Feliz himself, an eighteen-year-old with no criminal record, was not present. Feliz's stepfather Luis Rivera, the owner of the house, identified the bedroom in which Feliz had last stayed. The officers testified that they found a loaded pistol, more ammunition, eighty-seven capsules of cocaine base, and $1,384 in cash in the bedroom. They arrested Rivera, Feliz's stepfather, for possessing a firearm without a license. They then transported Rivera and the rest of the family, including the two-year-old infant, to the police station.
At this point, the accounts of the police officers and Feliz's family diverge. According to the police officers, as the officers got into their patrol cars, Feliz appeared and approached the house. One of the officers, Agent JoséVélez, left his car, gave Feliz a Miranda warning, arrested him, and drove him to the police station. At the station, Agent Vélez again gave Feliz the Miranda warnings, this time verbally and in writing. Feliz signed that he understood his Miranda rights, and then, around 7:30 a.m., the police say he wrote a confession on the reverse side of the Miranda form. The confession stated that Feliz owned the gun, drugs, and money, and that his family did not know of them. Feliz also signed a property seizure form.
The police officers say they then took Feliz to the office of the federal Bureau of Alcohol, Tobacco, and Firearms (ATF) in San Juan for DNA testing. Agent JoséLópez, an officer of the Puerto Rico police participating in an ATF task force, conducted
the testing. Feliz began crying and confessing again. Agent López immediately gave Feliz a verbal Miranda warning, told Feliz to stop, and had Feliz read and sign a written Miranda form. Feliz then again wrote a confession on the reverse side of the Miranda form, around 2:30 p.m. This second, more detailed confession explained that Feliz obtained the firearm for protection while selling drugs, and that he began selling drugs to provide for his ten-month-old son while Feliz was unemployed.
Feliz and his mother, Hortencia Feliz, recounted a different tale. According to them, after the search of the house, the police officers told Feliz's mother to call Feliz. She did. Feliz missed her call, but soon returned it. One of the officers took the phone from his mother to speak with Feliz. The officer told Feliz to turn himself in, because " all of that" was his. The officer also threatened Feliz that, if he refused to turn himself in, his siblings would be sent to the custody of the Department of Family Affairs. Feliz's mother was audible to Feliz, crying in the background. Hortencia confirmed his account.
Feliz turned himself in to the police at the station, where officers walked him past his family and into an interrogation room. One of the officers told him that if he failed to confess, his mother, a Dominican national, would be deported. Agent Vélez then dictated the first confession to Feliz. After Feliz wrote out the confession, Agent Vélez told Feliz to sign the Miranda form, presenting it as an afterthought and without giving Feliz the opportunity to read it.
Later, in the ATF office's interrogation room, Agent López threatened Feliz that if he did not confess again, his mother would be deported and sisters removed to the custody of the state. Agent López dictated the second, more ...