In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1263

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHRISTOPHER VILLALPANDO,

Defendant-Appellant.

Appeal from the United States District Court 

for the Western District of Wisconsin.

No. 08 CR 98—Barbara B. Crabb, Chief Judge.

ARGUED JUNE 4, 2009—DECIDED DECEMBER 16, 2009

Before FLAUM, WOOD, and TINDER, Circuit Judges.

TINDER, Circuit Judge. Christopher Villalpando pleaded

guilty to one count of possessing cocaine with intent to

distribute and was sentenced to 70 months in prison. In

his plea agreement, he reserved the right to appeal the

denial of a motion he filed to suppress incriminating

statements he gave to the police after he was arrested.

These statements led to the search of his apartment that

turned up the aforementioned cocaine. We agree with the
2 No. 09-1263

district court that the statements were voluntary and

therefore affirm Villalpando’s conviction.

I. Background

Christopher Villalpando, at the time a 21-year-old

college student on probation for Wisconsin state drug

convictions, was stopped by police after leaving his home

and consented to the search of his SUV. In the vehicle,

police found 3.6 grams of marijuana. At this point,

Villalpando faced a dilemma. If the presence of the drugs

in his vehicle were reported to his probation officer,

Villalpando could be subject to a probation hold, put

back in jail and unable to return to school. Similarly, if

he were locked up on the marijuana charge, he would be

forced to miss school (and his detention would come to

the attention of his probation officer). Denise Markham,

a Madison detective, interrogated Villalpando in her

squad car, after reading his rights and reminding him of

these potential problems.

After going over Villalpando’s potential probation

difficulties, Detective Markham indicated that she would

try and use her influence on the district attorney and

Villalpando’s probation officer to work out a situation

where they would offer leniency in return for Villalpando’s

help. After Villalpando equivocated, Markham continued to ask for his help, repeatedly explaining that she

would intercede on his behalf and maintaining that her

interest was in another guy (presumably Villalpando’s

supplier). The police were not interested in the marijuana
No. 09-1263 3

in Villalpando’s car; instead they were interested in his

cocaine sales.

Ultimately, Villalpando made a series of admissions—that there was marijuana in his apartment, that

there was money and a pistol in a safe in the apartment,

and finally that there were 9 ounces of cocaine in the

apartment. The police used this information to get a

search warrant for the apartment and Villalpando

pleaded guilty to possessing the cocaine found within.

Villalpando filed a motion to suppress the evidence,

arguing that his admissions were involuntary because

they were induced by Detective Markham’s false

promises, and therefore that the evidence found in his

house was the fruit of the involuntary admissions. The

magistrate judge’s report (adopted by the district court)

found his statements to be voluntary and denied the

motion. Villalpando then entered a conditional guilty

plea that preserved his right to appeal the denial of his

motion to suppress. He asks us to find his statements

involuntary and remand the case to the district court to

order the suppression of his inculpatory statements

and the search warrant they supported.

II. Standard of Review

We review the denial of a motion to suppress under

a dual standard. We review all factual determinations for

clear error, with special deference to the district court’s

credibility determinations. We review conclusions of law

de novo. United States v. Montgomery, 555 F.3d 623, 629

(7th Cir.), cert. denied, 129 S. Ct. 2413 (2009).
4 No. 09-1263

Villalpando argues that we should review the facts

here de novo since there was no evidentiary hearing

below and we, like the district court, have the entire

transcript of the interview forming the basis of his claim.

The government counters that the district court made

inferences from the transcript and that these are entitled

to our deference. The Supreme Court has held in

similar circumstances that the deferential standard of

review afforded to a trial court’s finding of fact is not

based solely on the trial court’s superior ability to

evaluate live witnesses but also on concerns of judicial

economy. “The rationale for deference to the original

finder of fact is not limited to the superiority of the trial

judge’s position to make determinations of credibility.

The trial judge’s major role is the determination of fact,

and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of

appeals would very likely contribute only negligibly to the

accuracy of fact determination at a huge cost in diversion

of judicial resources.” Anderson v. City of Bessemer City,

N.C., 470 U.S. 564, 574-75 (1985); see also Ginsu Prods., Inc. v.

Dart Indus., Inc., 786 F.2d 260, 263 (7th Cir. 1986) (“Where

there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.

This is so even when the district court’s findings do not

rest on credibility determinations, but are based instead on

physical or documentary evidence or inferences from other

facts.”) (citations and emphases omitted).

Whether a statement is voluntary is a matter of law.

Montgomery, 555 F.3d at 629. We judge, however, the

voluntariness of a confession under the totality of the
No. 09-1263 5

circumstances, id., which of course means that we

consider whether the underlying facts as found by the

trial court support the conclusion that the confession

was voluntary, Schneckloth v. Bustamonte, 412 U.S. 218,

227 (1973). (While the Court in Schneckloth characterized

the conclusion we should draw as a factual one, we

recognized in United States v. D.F., 115 F.3d 413, 419 (7th

Cir. 1997) that the Supreme Court’s decision in Ornelas

v. United States, 517 U.S. 690 (1996), mandated that we

treat voluntariness as a matter of law mandating

de novo review.)

Accordingly, the defendant’s argument for a de novo

construction of the facts appears to be foreclosed by

both Supreme Court precedent and our previous cases.

As we proceed through the analysis, however, we will

see that the district court’s factual findings are unchallenged, while the legal conclusions drawn from them

are well-supported. In other words, the standard of

review we employ has no effect on the outcome of this

case.

III. Analysis

An incriminating statement is voluntary if it is “the

product of rational intellect and free will and not the

result of physical abuse, psychological intimidation, or

deceptive interrogation tactics that have overcome the

defendant’s free will.” United States v. Dillon, 150 F.3d 754,

757 (7th Cir. 1998). Villalpando alleges that his free will

was overcome by the interrogating detective’s offer of

deceptive promises of leniency. To date, our cases
6 No. 09-1263

dealing with this issue have generally imagined the

hypothetical circumstance where a false promise

would make a confession involuntary even as we

found that such a circumstance did not exist in the case

at issue. See, e.g., United States v. Kontny, 238 F.3d 815, 818

(7th Cir. 2001); Sprosty v. Buchler, 79 F.3d 635, 646-47 (7th

Cir. 1997); United States v. Baldwin, 60 F.3d 363, 365 (7th

Cir. 1995), vacated and remanded on other grounds, 517 U.S.

1231 (1996); United States v. Rutledge, 900 F.2d 1127, 1130

(7th Cir. 1990). In these cases, we made clear that while

a false promise of leniency may render a statement involuntary, police tactics short of the false promise are usually

permissible. “Trickery, deceit, even impersonation do not

render a confession inadmissible . . . unless government

agents make threats or promises.” Kontny, 238 F.3d at 817.

In a situation similar to Villalpando’s we found that a

confession induced by a promise “to bring cooperation by

the defendant to the attention of prosecutors [did] not

render a confession involuntary.” United States v. Charles,

476 F.3d 492, 497 (7th Cir. 2007). So, for Villalpando to

succeed here, he has to establish that his interrogator

made him a promise that was materially false and thus

sufficient to overbear his free will. See Montgomery, 555

F.3d at 630 (collecting cases and noting that not every

false promise constitutes coercion).

The reason we treat a false promise differently than

other somewhat deceptive police tactics (such as cajoling

and duplicity) is that a false promise has the unique

potential to make a decision to speak irrational and the

resulting confession unreliable. Police conduct that influences a rational person who is innocent to view a false
No. 09-1263 7

confession as more beneficial than being honest is necessarily coercive, because of the way it realigns a suspect’s

incentives during interrogation. “An empty prosecutorial

promise could prevent a suspect from making a rational

choice by distorting the alternatives among which the

person under interrogation is being asked to choose.” Id.

at 629 (quoting Sprosty, 79 F.3d at 646). The ultimate

result of a coercive interrogation is unreliable.

So, our task is to examine whether Villalpando was not

able to make a rational decision due to promises made by

the interrogating detective. As noted, we review

Villalpando’s decision to speak by considering the

“totality of the circumstances,” including “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.” Charles,

476 F.3d at 497. The burden is on the government to

prove the voluntariness of Villalpando’s statements by a

preponderance of the evidence. Lego v. Twomey, 404 U.S.

477, 489 (1972); United States v. Church, 970 F.2d 401, 404

(7th Cir. 1992). The evidence the government offers is

the entire transcript of the interview.

Villalpando’s claim is simple. He claims that the investigating detective offered to keep him out of jail in exchange for his cooperation. This is true—but only to a

limited extent. Unfortunately for Villalpando, the devil

is in the details. Villalpando argues that cooperation

meant simply revealing the presence of cocaine in his

house, but it is clear from the transcript that the conversation between Villalpando and Detective Markham
8 No. 09-1263

concerned his future cooperation with the investigation

of his supplier. It was in the context of negotiating this

future cooperation that Villalpando chose to come

clean about what was in his apartment.

Our conclusion that the conversation was a negotiation matches the findings of the district court. The

district court noted Villalpando’s familiarity with the

criminal justice system, the fact that he was not

physically threatened, and the first-name basis he was

on with the detective and considered the full circumstances as demonstrating that Villalpando was negotiating with the police. (The conversation between the

detective and the defendant was remarkably relaxed,

with both of them addressing each other by their first

names throughout.) We agree and find that his choice

to reveal the cocaine in his safe was rationally made

within the context of these negotiations.

Of course the scales in the negotiation weren’t evenly

balanced. As Vilalpando himself noted during the interrogation, the police had leverage over him and were

seeking more. But, as the district court found, Villalpando

was looking for the best deal he could get, knowing that

he was facing potential jail time for the marijuana violation. The explicit promises offered by the detective

were these: she would try to persuade the probation

officer not to revoke his probation and she would not

arrest him that night if he cooperated with the investigation against the unnamed target.

Thus, the actual promises made during the interview

belie Villalpando’s contention that he struck a bargain
No. 09-1263 9

with the detective that would secure his release in return

for information about his own drug possession. The

conversation reveals that the detective sought a more

extensive cooperation from Villalpando and reveals that

her promises in regard to that cooperation were less

than solid. She offered, for instance “to go to bat” for

Villalpando and indicated that she would “sit down” with

the DEA, the police, and his probation officer to “work

this out.” She indicated that “we don’t have to charge

you.” None of these, standing alone or in the context of

the interview, represented a solid offer of leniency in

return solely for his admission to cocaine possession.

Furthermore, the detective’s statements that Villalpando

challenges are merely offers of her help, not the help of the

district attorney, the police, or Villalpando’s PO. (For

example, “I’m going to go to bat for you tonight.”)

Villalpando himself recognized that she was not offering

him anything specific beyond her efforts to intervene on

his behalf, saying toward the end of the interview, “But

the whole point is, Denise, that what you’re basically

telling me is that like—is you don’t know for sure if I’m

not going to be able to go to jail,” and earlier that “you’re

not telling me that I’m not going to jail, you’re just telling

me that you’re going to work at it.” It is far different

to offer to intercede on someone’s behalf than to promise

that such an intercession will be effective (which she

did not do). Villalpando also alleges that Markham’s

statement that he would “see how I uphold my end of the

bargain” is evidence that she had made promises to

Villalpando, promises that she would not keep. But as we

noted, the bargain to which Detective Markham
10 No. 09-1263

repeatedly alludes is one in which Villalpando offers

continued help to the police, not simply revealing the

presence of cocaine in his home.

Finally, Villalpando argues that the detective offered to

use her pull with the DA to make things easier for him.

Whether or not she did so, Charles appears to foreclose

that argument even if we accept, arguendo, that

Markham promised Villalpando the DA’s leniency. In

Charles, we considered an identical argument and

rejected it, finding that the defendant “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.” 476 F.3d at 497. The record before

us is silent on how this became a federal case, but

Charles makes clear that “promises to seek favorable

consideration from the prosecutor do not undermine the

voluntariness of a confession.” Id. at 498. “The circumstances at the time of the statement determine whether

it was voluntary, not where the case was later prosecuted.” Id. Here, the evidence shows that at the time of

Villalpando’s interrogation the detective honestly sought

to exploit him as an informant; Villalpando does not

argue that he made a deal to inform for the police and

that they later reneged on the deal. 

IV. Conclusion

Villalpando was in trouble as soon as the police discovered the marijuana in his vehicle. The interrogating

detective offered to help him, but her offer of help did not

amount to a false promise of leniency. In light of the
No. 09-1263 11

totality of the circumstances, the statements were voluntary and the district court’s decision is AFFIRMED.

12-16-09