# United Stat es Court of Appeals For the First C ircuit

No. 04-1293 UNITED STATES OF AMERICA, Appellee,

v. JOSHUA BEZANSON-PERKINS, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Steven J. McAuliffe, U.S. District Judge ]

Before Torruella, Circuit Judge , Coffin, Senior Circuit Judge , and Lynch, Circuit Judge .

Paul Garrityfor appellant. Donald A. Feith , Assistant United States Attorney, with whom Thomas P. Colantuono , United States Attorney, was on brief for appellee.

November 23, 2004-2- LYNCH, Circuit Judge . Joshua Bezan son-P erkins pled guiltyt o o ne count of aiding and abetting a bank robbery in violation of 18 U.S.C. §§ 2 and2113(a). He entered his plea after the district cou rt den ied his motion to suppress his confession. His plea bargain expressly reserved the right to appeal the court's suppression order, which he does here.

The theorypresented is an unusual one: that a defendant who has given a valid Miranda waiver may seek to suppress his later voluntary and uncoerced statements to the pol ice on the grounds that (arguably) misleading statements by the police invalidated his Miranda waiver. On the facts, we reject this theory and affirm. I. On the afternoon of September 5, 2002, a man armed with what appeared to be a handgun robbed the Citizen's Bank in Hooksett, New Ha mpshi re. After the robber left the bank, he was

seen by two customers as he ran towarda car, a white Geo Storm, leanedinto the vehicle to speak with the driver, and then ran off. One customer wrot e dow n the car's license plate number and then watchedthe Geo Storm drive across the street and park at a Dunkin' Donuts . The dr iver got out and went into the Dunkin' Donuts. Police arrested the driver of the car, who was the defendant Bezanson-Perkins.

Bezanson-Perkins was taken to the Hooksett Police Station. He was interviewed by two police officers, Detective Owen-3-

Gaskell and Bow Police Chief RodForey. Bezanson-Perkins consented to having the interview recorded, after which he was read his Miranda rights and given a form which he initialed and signed indicating he understood those rights. See Miranda v. Arizona , 384 U.S. 436 (1966) (holding that certain warnings must be given before a suspect's statements made during custodial interrogation may be admitted in evidence).

After being told of his right to a lawyer, and that if he

cou ld not af ford a lawyer one would be appointed for him, but before signing his waiver form, Bezanson-Perkins asked: "It's not going to happen right now[?]" Gaskell replied:

No, we don't have [a la wyer] right now. We don't have one sitting there. If you, you can refuse to answer any questions or stop giving this statement at a ny ti me you wish, which means that if you decide that at some point you want to stop, you stop and we won't do it any further. Bezanson-Perkins then replied: "Okay." He then stated that he understoodhis rights and agreed to waive them and tal k to the officers. Bezanson-Perkins concedes that his waiver at this time was valid.After executing his waiver form, Bezanson-Perkins then had the following exchange with the officers:

JBP: So if I requested a lawyer, there would

be one that would come right now? OG: No.-4- RF: Well what we'd do is if you didn't want

to answer a question, you don't answer the question. OG: Ah go ahead and explain it to him if

you want, whatever um, RF: Yeah I mean, the bottom-line Josh, you

alreadytold me you know the system. You've been through the system. You have a right to an attorney if you want. Yo u' d have to hire your own lawyer. We'd li ke to ask you some questions. And actually we just want to get your version of what happened. Your involvement, you, you're telling me, you mentioned something before Detective Gaskell got in here that you know, you['re] a convicted felon and you[ 're] in a white car and you're at the wrong place at the wrong time, well that's what we want to talk about. We want to get your version. If we have a question that you don't want to answer, say I don't want to answer that. It's as simple as that. JBP: Okay. The statement "You'd have to hire your own lawyer" is grist for his later argument.

After this exchan ge , the officers began to question Bezanson-Perkins about the bank robbery. At the beginning of the interrogat i on, Bezanson-Perkins maintained that he did not know anything about the bank robbery. The police then told BezansonPerkins some of the evidence they were going to examine to see if that was true, such as checking his car to see if the actual robber's prints were on it, and viewing videos from the bank.-5-

Bezanson-Perkins responded by saying that regardless of whether he was involved or not, he was going to get convicted:

I'm gonna have to go to trial, because I know you're not gonna let me g o. I'm not . . . stupid. You know. I know I'm not going home. [I'm] gonna have to take the tria l or t ake a plea bargain. A plea bargain says oh, well if you just say you did it, then you can go home a littl e bit earlier. So I'll only do . . . five more years, but if I don't say I did it, then I'll probably go to trial, all the . . . jurors are just gonna sit there, twiddle their thumbs, not list en to anything I said and

. . . give me seven and a half to fifteen. You think I am a . . . retard? I know I ain't going home for a long . . . time! Detective Forey, in turn, then asked: "[I ]f you know that, why you telling me the story?" He told Bezanson-Perkins that there was a difference in culpability between someone who is merely the driver in a robbery, and someone who actually commits the robbery. He also told Bezans on-P erkins that they had a lot of evidence against him that led to his arrest. When Bezanson-Perkins askedhow that happened, Forey said: "How about a plate number. How about witnesses. How about driving around the bank. How about going the other way. How about you pick the bank that there happen[ed] to be a state trooper sitting having a coffee behind in the field."

Defendant also objects to certain police statements about the truth helping him, which were made in the context described above. F orey n ext told Bezanson-Perkins the situation as the police saw it:-6- If you're the wheel man and the guy that went in and pointe d th e gun at all those people with all those cameras going o n . Drop[ped] t he c lip and did everything you shouldn't do in a bank robbery. If you're th at guy, you may be [in serious trouble]. So do you think you[r] buddy that's all muddy now fromrunning through and getting tracked down by the dogs, that you know is sitting down there, do you think he's gonna tell us what happened? Be caus e that was like, well my daughter gets caught with her hand in the . . . cookie jar. I mean his is a do ne deal. Do you want to help yourself out? That's entirely up to you. We're not, the old days when we us ed to beat people up andtake their lunch money is long over, but . . . it's up to you. You know what happened. We know what happened, but you need to either come to the plate and say you know what Rob, I was the wheelman and I didn't g o in the bank. That puts you in a who le different situation and when we tal k to your PPO, and when we talk to the dist, the county attorney, there is a different scenario here and you k now it. You know it. You know the guys that go into state prison and do short tim e, easy time and you['re] right, two, t w o and a half years. You could do, you could do that standing on your freaking head. About an hour into the interrogation, O fficer Gaskell again explained the situation to Bezanson-Perkins:

If I had the powers to work things and [make] deals I would believe me. I wish I [c ould] cuz it would make my job so much easier. To sit there and you've already said it, you can help y ours elf or attempt to help yourself by whatever yo u sa y and you give us to at whatever level. I can't tel l yo u how much that will help you but there's the bo ttom line. Als o near the end of the first round of questioning, Forey told Be zans on-Perkins that " [t]he truth opens doors ," and that " the-7-

truth from you is what I need. And if I have that then I can run and then do what I can to help you. " Later on, Forey stated:

You know and I know whether you like it or not or whether you agree with it or not, the truth does help and it is going to help you in the long run and if your ultimate goa l is t o get back –- as soon as possible, the only thing that's going to help you is the truth. These statements form the last prong of defendant's argument. Bezanson-Perkins continued to s ay that he could not tell the officers anything about the robbery, and they ended the first round of questioning.

After the first round of questioning, Bezanson-Perkins

was booked and made a telephone call to his mother. About two and a half hours after the previous interrogation ended, the officers began interviewing Bezanson-Perkins again. They did not reread him his Miranda warnings, although they did advise him that h e continuedto have his constitutional rights. Bezanson-Perkins statedhe understood, then confessed to the crime. That confession is the subject of the motion to suppress. II. On November 7, 2002, Bezanson-Perkins was indicted on one count of ai ding and abetting a bank robbery in violation of 18 U.S.C. §§ 2 and 2113(a). Bezanson-Perkins subseq uently moved to suppress his confession. The parties agreed not to have a hearing

on the issue, as the entire interrogation had been tape recorded

a ndthe tape was admitted into evidence. Bezanson-Perkins first-8-

arguedthat the officers undermined his Miranda waiver of his right to counsel by falsely telling him, i n the first interrogation session after he had signed the waiver form, "You 'd have to hire your own lawyer." Further, he argued that the police undermined his Miranda waiver of his right not to incriminate himself by repeatedlytelling him that the truth would help him. Finally, he arguedto the district court that these dece ptiv e statements rendered his confession involuntarily coerced.

On September 26, 2003, the d istr ict court denied the motion to suppress the confession. The district court held that defe ndant was properly read his Miranda rights and executed a knowing, intelligent, and voluntary waiver of those rights prior to anycustodial interrogation. Further, the court held that Forey's post-waiver statement that "[y]ou'dhave to hire your own lawyer,"

was not erroneous but incomplete. The court stated tha t it wa s true that if the defendant wanted the lawyer of his choice (his "own lawyer"), he would have to hire that lawyer. The court held that Bezan son-Perkins was told, and understood, that if he could not hire his own lawyer, one wouldbe provided for him. The court also found that Bezanson-Perkins never invokedhis right to counsel during the interrogation. Finally, the court held that the interviewing tactics employed by the officers did not rise to the level of coercion.1 "These warnings (which have come to be known colloquially

as ' Miranda rights') are: a suspect 'has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.'" Dickerson v. UnitedStates , 530 U.S. 428, 435 (2000) (quoting Miranda , 384 U.S. at 479). -9- Bezanson

- Perkins appeals only the first ruling of the district court. He argues that his earlier valid Miranda waiver

was retroactively invalidated by the officers' subsequent stat ements that Bezanson-Perkins would need to "hire [his] own lawyer" and that the truth would help him. Further, he raised for the first time on this appeal the claim that certain enhancements to his sentence based on findings by the district judge violated his right to a jury trial as stated in Blakelyv. Washington , 124 S. Ct. 2531 (2004). III.

Bezanson-Perkins frames his argument in terms of Miranda rights. Miranda established a baseline rule, now determined to be of constitutional dimension, as to certain warnings 1 which must be given before a suspect's custodial statements may be admittedinto evidence. Dickerson v. United States , 530 U.S. 428, 439-40 (2000).

The issue before us is a nar row one. Bezanson-Perkins does not appeal the district court's ruling that his confession was not coerce d by the officers. Further, Bezanson-Perkins does not contendthat, after waiving his right to remain silent andright to counsel, he subsequently attempted to invoke those rights and was-10-

preventedfrom doing so by the officers. He does not claim that he later asked to be provided counsel and was de nied couns el. And Bezanson-Perkins concedes that his initial w aive r of his Miranda rights was a valid waiver. Thus, the question before us, as posed, is whether the officers' later statements to BezansonPerkins's question about the timing of his access to a lawyer, as well as their repeated statements that the truth would help him, servedto invalidate his previous ly knowing, intelligent, and voluntarywaiver of his Miranda rights so as to warrant suppression of the confession.

We review factual findings by the distri ct c ourt for clear error. United States v. Downs-Moses , 329 F.3d 253, 267 (1st Cir. 2003). We review the determination of whether a waiver of rights was voluntary de novo. Id.

Determining the v alidity of a Miranda waiver usually entails two separate inquiries. The waiver must be both voluntary, and knowing and intelligent. Moran v. Burbine , 475 U.S. 412, 421 (1986). A waiver is voluntary when "it [is] the product of a free anddeliberate choice rather tha n inti midation, coercion, or deception." Id. A waiver is know ing a nd intelligent when "made with a full aw areness of both the nature of the right being abandonedand the consequences of the decision to abandon it." Id. Both inquiries are judged based on the "totalityof th e circumstances surrounding the interrogation." Id. (internal-11-

quotation omitted). Assuming there has been no Miranda violation, then the standardshifts: "[O]nly confessions procuredby coercive official tactics should be excludedas involuntary [under Colorado

v. Connelly , 597 U.S. 157, 167 (1986)]. 'Free choice' is no longer

a touchstone . . . ." U nite d States v. Byram , 145 F.3d 405, 407 (1st Cir. 1998) (citations omitted).

There are surely situ ations in which statements made after a valid Miranda waiver are subject to suppression, for a

num ber of re asons. For example, police may not get a Miranda waiver and then beat a confession out of a suspect and hope to have the confession admitted into evidence. Such a confession would be procuredby coercive tactics. See Mincey v. Arizona , 437 U.S. 385, 401 (1978). Nor may police, against the suspect's wishes, induce intoxication or a drugged state such that any further statement by the suspect is coerced. See id.

Nor may police after a valid Miranda waiver disregard a suspect's later clear request for a lawyer anddeny him counsel, or

an assertion of the right to remain silent and continue to question him. Edwards v. Arizona , 451 U.S. 477, 484-85 (1981); see also Davis v. United States , 512 U.S. 452, 459 (1994). To the extent Bezanson-Perkins attempts to imply his later colloquy was a request for counsel, he does not meet the Davis standard that the request be clear and unequivocal. Davis , 512 U.S. at 459.-12- None of these situations is our situation here, and Bezanson-Perkins makes no real claim that the statements fall into any of these categories.

Rat her, his complaint is that, after a valid Miran d a waiver, during the interrogation the police misled or tricked him. He attempts to tie this allegation to the Miranda doctrine, im plicitly arguing that if he had a lawyer, he would not have confessed, and was misled into confessing by the police statements. This is a categorically different type of argument than the types describedabove, and its relationship to Miranda is attenuated. We stress that there is no claim that he was misled or tricked into waiving his Miranda rights initially or that he later attempted to

asser t those rights and was forced to continue with t h e interrogation.

That makes this case different in kind from cases on which he relies. In Hart v. Attorney Gen. of the State of Florida , 323 F.3d 844 (11th Cir. 2003), the court held that the confession of a 17 year o ld should be suppressed when the suspect, despite having signed a Miranda waiver form, later evide nced confusion about his rights and seemed to want an attorney, and then was lied to by the police about the effects of not having counsel. The court held that this later interlude mean t that by the time the confession was given, it could not say that the defendant had voluntarily, knowingly, and intelligently waived his Miranda-13-

rights, and that police deception concerning those rights rendered his confession obtained in violation of Miranda . Id. at 895. Even

more af ield is Un ited States v. Beale , 921 F.2d 1412 (11th Cir. 1991), which found that police deception prior to defendant's signing of a Miranda waiver rendered that waiver invalid. Id. at 1435. Indeed, we doubt the argum ent, on the particular facts here, has much to do with Miranda at all. Instead, it seems to be

an argument that a defendant, part icul arly one who, having knowin gly w aived his Miranda rights, and who has not asked for a lawy er thereafter, should not be subjected to duplicitous statements by police because of the risk he will make incriminating statements. See Hart , 323 F.3d at 894 ("The reason for requiring a lawyer during custodial interrogation is to protect a suspect's privil eg e against self-incrimination."). There is an obvious tension in the argument: defendant voluntarily and validly waived the presence of counsel and right to remain silent, thus subjecting himself to the risk of his self-incriminating responses to police misstatements not correctedby counsel; but he nonetheless seeks to immunize himself from that risk af terwar d by saying that because the police made misstatements, he can invalidate the waiver. It is doubtful, under Moran , that any such rule exists. 475 U.S. at 421;

see also Hart , 323 F.3d at 898 (Vinson, J., dissenting).-14- Even assuming some limited protection is a vailable for statements made by suspects in response to un tru e statements by police, that doctrine does not help Bezanson-Perkins here. As Byram noted, some types of trickery could amount to coercion -- such as where police falsely say they will take a suspect's child away unless the suspect cooperated. See Lynumn v. Illinois , 372 U.S. 528, 534 (1963); Byram , 145 F.3d at 408 . That is far from this case. And "trickery is not automatically coercion." Byram , 145 F.3d at 408. Th e Supreme Court has rejected challenges to confessions on the basis t hat they were procured by deceits. Frazier v. Cupp , 394 U.S. 731 (1969). Here, the premise that the police used deception itself fails. The district court held that the police statements, when understood in context, were not untrue and that determination was not erroneous.

We turn to the particulars. A. Right to Counsel

Bezanson-Perkins first argues that by telling him: "You'd ha ve to hire your own lawyer," Officer Forey invalidated h i s previous waiver by misleading him as to the scope of his right to counsel. The law about police statements made before a Miranda waiver is obtained does not help Bezanson-Perkins. His own claim, concerning state ments made after a valid waiver, is that much harder to make. In Duckworth v. Eagan , 492 U.S. 195 (1989), an-15-

office r read the defendant the following Miranda warnings from a waiver form:

Before we as k you any questions, you must understandyour rights. You have the right to remain silent. An ything you say can be used against you in court. You have a right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning . You have this ri ght to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court . If you wish to answer questions now without a lawyer present, yo u ha ve the right to stop answering questions at any time. You also have the right to sto p answering at any time until you've talked to a lawyer. Id. at 198. The defendant signed this waiver f orm , and then confessedto the crime. The Court held that these instructions did not mislead the defendant as to his Miranda rights. Id. at 200-01. It disagreed with the Court of Appeals' conclusion that the phrase "if and when you go to court" implied that the defendant could not have a lawyer present during questioning unless he hired his own. Id. at 203. Rather, this language accurately described the procedure for appointment of coun sel in Indiana, which occurs at defendant's initial appearance in court. Id. at 204. Further, the Court held that this statement merely answers in adva nce the frequent inquiry of a def enda nt as to the timing of receipt of court-appointed counsel. Id.

The district court here correctly concluded that the statement "You'd have to hire your own lawyer" did not mislead-16-

Bezanson-Perkins as to the sco pe of his right to counsel or the consequences of having waived that right. This statement occurred after Bezanson-Perkins had been accurately read his Miranda rights, signed the waiver form, and asked a clarifying question about the timing of court-appointed counsel an d w as told no lawyer was immediatelyavailable. The officers told Bezanson-Perkins that he had the r ight to an attorney, including the right to an attorney during questioning. Further, they told him that one would be provided for him if he could not afford one. Given this context, as the district court held, the police statement was not false or misleading. The statement was made in response to a second question about whether a lawyer, if Bezanson-Perki ns w anted one, "wouldc ome righ t now." He had just been told there was not one "right now," yet he asked again. The statement "You'd have to hire your own lawyer" was true in that, if Bezanson-Perkins wanted a lawyer immediately, a lawyer of his own choosing, he would need to hire one. The officer then promptly told Bezanson-Perkins that if he did not want to answer any question absent a lawyer, he didnot have to do so. In context, Bezanson-Perkins's claim is without force. B. Right to Remain Silent

Bezanson-Perkins further argues that the officers, by continuallytelling him to be truthful and to help himself, invalidatedhis waiver of his right to remain silent, by misleading-17-

himas to the consequences of having waiv ed that right. In essence, Bezanson-Perk ins' s claim is that the officers' constant pleas to him to be truthful so deceived him about whether the truth couldhurt him that he was rendered unaware that if he did confess, that confession would be used against him in court.

Bezanson-Perkins's claim cle arly lacks merit. It also defies common sense. At the beginning of th e i nterrogation, Bezanson-Perkins, independently of the officers questioning him, statedthat he understood the sentencing consequences of confessing andsigning a plea bargain as opposed to maintaining his innocence and going to trial. The officers merely confirmed this situation by laying out the strong evidence they had, and then asking him why, giv en hi s understanding of things, he did not take the path that was likely to lead to a lower sentence. Cf. United States v. Pelton , 835 F.2d 1067, 1073 (4th Cir. 1987) (detailing evi dence against suspect and telling suspect that police wo uld inform prosecu to r that suspect cooperated does not render confession involuntary). There is no evidence that this manner of questioning led Bezanson-Perkins to believe that his confession would somehow not be used against him.

Bezanson-Perkins maintains that the most problematic statements by the officers came at the end of his first round of interrogation. Here, Forey told Bezanson-Perkins that "[t]he truth opens doors," and that "the truth from you is what I need. And if-18-

I have that then I can run and then I do what I can to help you." Later on, Forey stated:

You know and I know whether you like it or not or whether you agree with it or not, the truth does help and it is going to help you in the long run and if you[r] ultimate goal is to get back –- as soon as possible, the only thing that's going to help you is the truth. Again, the context in which the se statements were made shows that the officers were telling Bezanson-Perkins that cooperating with them would be better for Bezanson-Perkins in terms of a lower sentence. In fact, the government ultimately agreed not to oppose Bezanson-Perkins's motion for downward departure based on his prompt acceptance of responsibility and recommended a sentence at the low end of the guidelines which was accepted by the district court at sentencing. His confession led to his plea, which led to his lower sentence. Given the strong evidence against him, it is unclear why Bezanson-Perkins is now trying to vacate his favorable sentence in favor of the risks of a much larger sentence. IV. Bezanson-Perkins also challenges certain enhancements to his sentence based on factual findings by the district judge at sentencing as a violation of his right to have all elements of his crime found by a jury beyond a reasonable doubt. See Blakely v. Washington , 124 S.Ct. 2531 (2004). The base offense level for aiding an d abetting a bank robbery is 20. U.S.S.G. § 2B3.1(a ) . The district court found a two-level enhancement because the crime-19-

involvedtaking the prop erty of a financial institution, id. § 2B3. 1(b) (1), and a three-level enhancement because the crime involved the possession and/or brandishing of a dangerous weapon, id. § 2B3.1(b)(2)(E). Thus, after Bezanson-Perkins's three-level reduction for acceptance of responsibility, id. § 3E1.1(a ) -(b), Bezanson-Perkins's offense level was 22.

Bezanson-Perkins's criminal history score based solely on his prior convictions was four. The district court enhanced this level by two points because Bezanson-Perkins was on parole at the time h e com mitted his crime, id. § 4A1.1(d), and enhanced by one point because the offense was committed within two years of his release for a felonious sexual assault, id. § 4A1.1(e). His ultimate criminal history score was thus seven, placing him in criminal history category IV. Bez anson-Perkins contends that he should be sentenced based on an offense score of 17 (base offense level of 20 minus his departure for acceptance of responsibility) andcri minal history category III (based on his base criminal history score of four).

Because Bezanson-Perkins did not challenge the constitutionality of his sentencing enhancements below, our review is for plain error. See United States v. Cordoza-Estrada , 385 F.3d 56, 59 (1st Cir. 2004). Under plain error review, the challenging partyhas the burden of showing (1) an error, (2) that is plain, (3) that affects substantial rights (i.e. the error was not-20-

harmless), and (4) that seriously undermines the fairness, integrity, or public r eput ation of judicial proceedings. United States v. Olano , 507 U.S. 725, 732 (1993). Bezanson-Perkins's claim fails at least to satisfy the second element of plain error review. See United States v. Morgan , 384 F.3d 1, 8 (1st Cir. 2004). The conviction and sentence are affirmed .