United States v. Charles, Brandon H. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2815
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRANDON H. CHARLES,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04 CR 49—Charles N. Clevert, Jr., Judge.
____________
ARGUED APRIL 4, 2006—DECIDED FEBRUARY 9, 2007
____________
Before POSNER, WOOD, and EVANS, Circuit Judges.
WOOD, Circuit Judge. Brandon H. Charles was ar-
rested as he fled a house where he had been selling
cocaine. After being given Miranda warnings, he was
interviewed by a Milwaukee police detective. He agreed
to provide information to the detective about his sup-
plier in exchange for what he hoped would be favorable
consideration from the local district attorney. Unfortu-
nately for Charles, he wound up in federal rather than
state court, where the state prosecutor’s word carried
little weight. After a trial, he was convicted of possession
with intent to distribute cocaine and sentenced to 10 years
in prison, the statutorily prescribed mandatory mini-
mum, and eight years of supervised release.
2 No. 05-2815
Charles now contends that his incriminating statements
were involuntary and should have been suppressed. The
district court’s conclusion otherwise was not erroneous,
however, and so we affirm Charles’s judgment of convic-
tion.
I
Charles was arrested on February 10, 2004, when he
attempted to slip away from a Milwaukee residence that
the police were searching pursuant to a warrant. The
police found several rocks of cocaine base in a utility room,
a .45 caliber pistol under a couch cushion in the living
room, and about $900 on Charles’s person. Charles had
two prior drug convictions at the time of his arrest.
At the police department, Detective Wendall “Mike”
Kurowski spoke with Charles in an interview room.
Kurowski was the only officer in the room; Charles was
not handcuffed; and both men wore casual clothes.
Kurowski and Charles testified about this interview at a
suppression hearing, and their accounts are largely the
same. Kurowski advised Charles of his constitutional
rights as required by Miranda v. Arizona, 384 U.S. 436(1966). Charles indicated that he had been so advised
previously, that he understood his rights, and that he
was willing to talk.
The two differed on only two points—why Charles had
been arrested and what exactly Kurowski said to Charles
to induce him to make incriminating statements. On the
first point, Kurowski testified that he informed Charles
that he had been arrested because of the cocaine in the
house. Charles testified that he thought he had been
picked up on a loitering warrant, but that Kurowski
tricked him by telling him he had sold drugs to an under-
cover officer, which he had not. It was that lie by
No. 05-2815 3
Kurowski, Charles claimed, that led him to incriminate
himself and try to make a deal. Kurowski testified that
Charles admitted to dealing cocaine from the house after
Kurowski pointed out all of the evidence collected there,
including the drugs and gun and the potential for find-
ing Charles’s fingerprints on something. As to the reward
for cooperating, Kurowski testified that he told Charles
that he might receive consideration from the district
attorney if he assisted the police with information about
where he obtained the cocaine. Kurowski believed that
he and Charles had developed a “rapport” and that
Charles was ready to cooperate with the police; the
detective assumed the case would be prosecuted in state,
not federal, court. Charles testified that Kurowski prom-
ised that the charges would be dropped—a promise
Kurowski emphatically denied making. In any event,
Charles gave Kurowski a full statement. He admitted to
selling five rocks of cocaine prior to the arrival of the
police, to holding an additional baggie of rock cocaine
for a friend, and to having handled the gun that the police
found. The whole interview lasted less than 45 minutes.
For reasons best known to the prosecutors, Charles
was indicted by a federal grand jury and charged with
possession of both the drugs and the gun found in the
house. He challenged the admission of his statements to
Kurowski, contending they were unconstitutionally
obtained. The magistrate judge presiding over the suppres-
sion hearing concluded, in his recommendation to the
district court, that Charles had talked voluntarily: “Merely
pointing out, what is anyway obvious, that cooperation
with the police can result in a reduced sentence or other
concessions down the road is not a promise and is not
calculated to prevent the suspect from rationally con-
sidering whether or not to speak.” The magistrate judge
pointed to the length of the interview, the comfortable
circumstances, and Charles’s prior experience with
4 No. 05-2815
Miranda warnings and the criminal justice system. The
magistrate judge also found Kurowski’s testimony more
credible than Charles’s, to the extent the two differed.
Charles filed a motion to “review” the magistrate judge’s
proposed findings of fact and recommendation that
the statements were voluntary and should not be sup-
pressed, claiming they were “in error.” He then filed a
general objection, also seeking de novo review. The district
court reasoned that his objections were too general to
satisfy 28 U.S.C. § 636(b)(1) and adopted the magistrate
judge’s recommendation. Charles went to trial, the state-
ments were admitted, and he was convicted of the drug
charge. The jury acquitted him on the charge of unlawful
possession of the firearm seized at the house. The district
court sentenced Charles to 10 years in prison, the manda-
tory minimum under 21 U.S.C. § 841(b)(1)(B) because of
his prior felony drug offense, as well as eight years of
supervised release. Charles appeals, challenging only
the voluntariness of his incriminating statements.
II
Before we turn to the voluntariness of the confession,
we must first consider the government’s argument that
Charles waived this issue by failing to file an adequate
objection to the magistrate judge’s recommendation that
the confession be deemed voluntary. Waiver requires
intentional relinquishment of a known right, whereas
forfeiture is the result of an unintentional relinquishment
of the right. See United States v. Baretz, 411 F.3d 867, 875
(7th Cir. 2005). Waiver precludes review, whereas forfei-
ture permits plain error review. Id. In the absence of
waiver or forfeiture, we review the voluntariness of the
statements de novo and related factual findings for
clear error. See United States v. Gillaum, 372 F.3d 848,
855 (7th Cir. 2004).
No. 05-2815 5
Where an issue is first decided by a magistrate judge,
“[t]he general rule within the Seventh Circuit is that if
a party fails to file an objection with the district court, he
or she waives the right to appeal all issues, both factual
and legal.” United States v. Hernandez-Rivas, 348 F.3d
595, 598 (7th Cir. 2003) (internal quotation marks omit-
ted). “The purpose of this waiver rule is to promote
efficiency between the district and appellate courts, so that
district courts have the opportunity to nip errors in the
bud without requiring them to conduct plenary reviews
of proceedings supervised by magistrate judges.” United
States v. Hall, 462 F.3d 684, 688 (7th Cir. 2006). See also
Hernandez-Rivas, 348 F.3d at 598; United States v. Brown,
79 F.3d 1499, 1503-05 (7th Cir. 1996). There is an excep-
tion if applying waiver would “defeat the ends of justice.”
Hernandez-Rivas, 348 F.3d at 598.
We are satisfied that Charles did not waive his right
to have the suppression issue reviewed. The magistrate
judge’s recommendation on May 20, 2004, addressed only
one issue: “whether Kurowski extended promises to
Charles of such a nature (and thereby created expectations
of such a lofty nature in Charles) that his will was over-
borne, thereby rendering his statement to Kurowski
involuntary.” In response to the adverse recommendation,
Charles objected twice. First, on May 26, 2004, Charles
filed a “Motion to Review Magistrate Judge William E.
Callahan, Jr.’s Findings Regarding Defendant’s Motion
to Suppress Statements.” In that motion, Charles con-
tended that the magistrate judge’s recommendation was
“in error,” and he requested that the district court “review
the evidence and briefs and rule in this matter.” On June
1, 2004, Charles filed “Defendant’s Objection to Magis-
trate Judge William E. Callahan, Jr.’s Recommendation
Regarding Defendant’s Motion to Suppress Statements,”
which also objected to the recommendation “in its en-
tirety” and requested de novo review. The district court
6 No. 05-2815
found the first of the two filings, “though not labeled as
an ‘objection’ per se” to be “decidedly an objection.” The
court reasoned that 28 U.S.C. § 636(b)(1) “guides the
court’s inquiry, imposing a de novo standard of review ‘of
those portions of the report or specified proposed findings
or recommendations to which objection is made.’ ” Because
of the generality of Charles’s objection, however, the
court found it did not suffice for purposes of § 636(b)(1).
Nevertheless, in adopting the magistrate judge’s recom-
mendations, the district court found that he “addressed
every argument and came to a well-reasoned conclusion.”
The government argues that Charles’s general objection
was the equivalent of no objection at all, and thus should
be treated as a knowing waiver of his right to appellate
review of the voluntariness issue.
In our view, the district court was splitting hairs too
finely here. It properly found that Charles’s first filing was
an objection, albeit a general one. This objection was
enough to point the district court in the right direction,
in this single-issue case, so that it could conduct the
kind of review of the report and recommendation con-
templated by 28 U.S.C. § 636(b)(1). (Since the first filing
was a timely objection, we need not reach the government’s
argument that the second filing on June 1, 2004, was
untimely.) Under 28 U.S.C. § 636(b)(1)(A)-(B), a magistrate
judge cannot decide a suppression issue; instead, the
magistrate judge makes recommendations to the district
court, which must adopt or reject them. If an objection is
made or if the court exercises its authority to conduct a
review without a written objection, see Thomas v. Arn, 474
U.S. 140, 154 (1985), the district court’s review is de novo.
The situation would be different if the magistrate judge
had addressed more than one issue. In that kind of case,
a more specific objection is necessary to alert the district
court to the finding or findings the objecting party
wishes to challenge. In those circumstances, a general
No. 05-2815 7
objection may well constitute at least a forfeiture, if not a
waiver. In this case, however, there could have been no
doubt that Charles was contesting the finding that his
confession had been voluntary. This is not to say, of course,
that there was no room for improvement as a matter of
trial strategy. Had counsel enabled Charles to object in
a more useful way, both the lawyers and this court
could have avoided this preliminary question.
It is also noteworthy that § 636(b)(1) does not require
an objecting party to spell out its concerns in any detail.
By contrast, for example, Federal Rule of Appellate
Procedure 28(a)(9)(A) requires appellate briefs to contain
“appellant’s contentions and the reasons for them, with
citations to the authorities and parts of the record on
which the appellant relies.” If that were what § 636(b)
said, then Charles’s objection would certainly have been
insufficient. But it is not. Charles neither waived nor
forfeited his right to challenge the district court’s find-
ing of voluntariness.
On the merits, we must consider whether Charles’s
statements were rendered involuntary as a result of
Kurowski’s alleged promise that the district attorney
would give him favorable treatment, when that treat-
ment was not forthcoming. “A confession is voluntary if in
light of the totality of circumstances, it was not secured
through psychological and physical intimidation but
rather was the product of a rational intellect and a free
will.” United States v. Ceballos, 302 F.3d 679, 694 (7th Cir.
2002) (internal quotation marks omitted). Such circum-
stances include “whether the defendant was read his
Miranda rights, the defendant’s age, the duration and
nature of the questioning, and whether the defendant
was punished physically.” Id. None of those problems
appeared in Charles’s case. “Trickery, deceit, even imper-
sonation do not render a confession inadmissible . . .
unless government agents make threats or promises.”
8 No. 05-2815
United States v. Kontny, 238 F.3d 815, 817 (7th Cir. 2001).
See Ceballos, 302 F.3d at 694-95 (“In fact, we have
held that a law-enforcement agent may ‘actively mislead’
a defendant in order to obtain a confession, so long as a
rational decision remains possible.” (citing United States
v. Rutledge, 900 F.2d 1127, 1131 (7th Cir. 1990))). “Confes-
sions or other admissions obtained in the course of an
interrogation are deemed involuntary and therefore
inadmissible only if they are procured by threats or prom-
ises.” Kontny, 238 F.3d at 817. Only if circumstances
“demonstrate that police coercion or overreaching over-
bore the accused’s will and caused the confession” is an
incriminating statement involuntary. Conner v. McBride,
375 F.3d 643, 651 (7th Cir. 2004). But promises—particu-
larly honest ones such as Kurowski’s—to bring coopera-
tion by the defendant to the attention of prosecutors do
not render a confession involuntary. See United States v.
Dillon, 150 F.3d 754, 758 (7th Cir. 1998); United States v.
Westbrook, 125 F.3d 996, 1005-06 (7th Cir. 1997).
In the end, Charles experienced one of the inevitable
consequences of our federal system. Acting in good faith
after his arrest, he apparently cooperated with the police,
but he saw that goodwill with the state prosecutor turn
to naught when the federal authorities took over the
case. That move raised the stakes for Charles consider-
ably: in federal court he faced a mandatory minimum
sentence of 10 years in prison. Nevertheless, we cannot
say that Charles’s statements to Kurowski were involun-
tary. Under the case law, promises to seek favorable
consideration from the prosecutor do not undermine the
voluntariness of a confession. Although Charles draws
an analogy between his situation and that in Santobello
v. New York, 404 U.S. 257, 262 (1971), which requires the
government to live up to its plea bargains, the two settings
differ importantly. The problem for Charles is precisely
that he had no formal plea agreement to which he could
No. 05-2815 9
hold the government. He had only Kurowski’s promise
that he would seek consideration from the district attor-
ney. Kurowski intended to follow through and had no
way of knowing that Charles would be indicted federally.
The circumstances at the time of the statement deter-
mine whether it was voluntary, not where the case was
later prosecuted. Charles was arrested with significant
evidence of drug dealing, he was given Miranda warnings,
and he made the statements in a casual conversation with
Kurowski that lasted less than 45 minutes. This is not
an involuntary confession.
III
We AFFIRM the judgment of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-9-07