UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 07-cr-49-01-SM

Opinion No. 2007 DNH 145

Anthony R. Capobianco

O R D E R

After careful consideration of the matter, defendant’s

motion to suppress incriminating statements he made to federal

law enforcement officers during a custodial interrogation is

denied.

Background

After a criminal investigation, federal law enforcement

officers concluded that defendant, a convicted felon, attempted

to buy a Sig Sauer pistol from Stateline Guns, Ammo and Archery

(“Stateline”), in Plaistow, New Hampshire. In connection with

that attempt, defendant allegedly completed and signed ATF Form

4473, on which he falsely represented that he had never been

convicted of a felony. And, on the same form, defendant also

allegedly represented that a social security number assigned to

his father (also named Anthony Capobianco) was his own. Because

Stateline’s records check disclosed defendant’s disqualifying

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felony background, it declined to sell the firearm to him. 

Defendant was subsequently indicted for making a false statement

in an attempt to acquire a firearm, in violation of 18 U.S.C.

§ 922(a)(6), and for falsely representing that a social security

number was his own, in violation of 42 U.S.C. § 408(a)(7)(B).

After the indictment was returned and an arrest warrant

issued, ATF agents went to the home of defendant’s parents at

approximately 7:30 a.m. on February 8, 2007, seeking information

about him. While there, Special Agent DeSantis noticed defendant

as he left a nearby building, apparently about to drive his

daughter to school. Defendant was promptly taken into custody. 

After being allowed to get a coat and make arrangements for his

daughter’s transportation to school, defendant was placed in the

back of a car and taken to the federal courthouse in Concord for

an initial appearance.

While in transit, and before questioning defendant, Special

Agent Cook advised him of his Miranda rights, and obtained both

an oral and written waiver from defendant. After acknowledging

and waiving his rights, defendant consented to questioning.

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Although defendant asked why he was being arrested, the

agents did not inform him of the actual charges underlying his

arrest. He was only told that an arrest warrant had been issued. 

Special Agent Cook then engaged in a form of deception and

trickery, telling defendant, falsely, that a firearm that had

been used in a shooting in Manchester, New Hampshire, had been

recovered by police and traced back to him through a federally

licensed dealer. Defendant was also told, falsely, that someone

had been shot with that firearm and, although it looked like he

was going to recover, the victim was in the hospital. In

reality, there was no shooting, no victim, and no recovered

firearm.

Defendant was generally calm and relaxed, given the

circumstances of his arrest, and his demeanor remained so during

questioning. Upon hearing Cook’s tale, rather than becoming

outwardly agitated or concerned, defendant immediately declared

that he was “relieved,” saying he thought it was “something more

than that.” He volunteered that he had tried to buy a firearm

from Stateline, but was unsuccessful. Special Agent Cook then

showed defendant the Form 4473 and said, in substance, “. . . do

you mean you didn’t get that firearm? I have the 4473 report

here that you completed. [Aren’t] these the blocks you filled

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out?” Defendant admitted that he had completed the ATF form, and

put his father’s social security number down as his own, but

reiterated that the dealer did not actually sell the firearm to

him.

It is, perhaps, important to take note of what Special Agent

Cook did not say. Defendant was not told that the fictional

victim died, or was likely to die, or that a homicide or murder

investigation was underway, or might be likely. Nor was

defendant told that he was suspected of being the fictional

shooter, or that he was potentially facing the death penalty or a

life sentence. Although defendant’s affidavit identifies

dramatic and imaginative possibilities, his calm demeanor at the

time the ruse was perpetrated, and his statement that he was

“relieved” to hear Cook’s tale, undermine his current claim of

anxiety and coercion. I find that he was not anxious,

frightened, or overly concerned about any implication that he

might be held liable with respect to a shooting. To the

contrary, he was relaxed, calm, and conversational. Defendant

well knew that he never obtained the firearm from Stateline that

was supposedly “traced back” to him, so had no involvement in the

fictional shooting, and nothing was said by the officers that

could be thought of as accusatory pressure. There were, of

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course, other explanations for the claimed link between the

defendant and the firearm that would not have involved him in the

fictional shooting: the firearm might have been stolen or lost

after purchase, or loaned, or sold, or, as defendant stated,

never obtained — none of which would have exposed the defendant

to any criminal liability. Defendant’s claim that he was coerced

into making inculpatory statements by the implication that he

could be facing a life sentence or even the death penalty for his

role in the fictional shooting is a stretch and not credible.

The ruse perpetrated by Special Agent Cook did not force

defendant to choose between admitting the relatively minor

offenses of making false statements and misrepresenting another’s

social security number as his own, on the one hand, or risk

prosecution and possible wrongful conviction of some undefined

and completely unrelated but far more serious crime, on the

other. The ruse explained why the officers took defendant into

custody — a firearm was traced back to him that was involved in a

serious matter — and put in a serious context, albeit a false

one, reasons why defendant might choose to answer questions

credibly and admit his actual connection to the firearm at issue.

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Ruses, deception, and trickery have, for better or worse,

become almost standard practice in police interrogation. But,

while “trickery can sink to the level of coercion . . . . [it] is

a relatively rare phenomenon.” United States v. Flemmi, 225 F.3d

78, 91 n.5 (1st Cir. 2000). The critical issue with respect to

this suppression motion is whether the government has met its

burden to prove that, under the totality of the circumstances,

defendant’s statements to Special Agent Cook were the product of

a free and deliberate choice, rather than the product of coercive

official tactics, making them involuntary. See Moran v. Burbine,

475 U.S. 412, 421 (1986); see also Colorado v. Connelly, 479 U.S.

157, 167 (1986); United States v. Jackson, 918 F.2d 236, 242 (1st

Cir. 1990); Bryant v. Vose, 785 F.2d 364, 367-68 (1st Cir. 1986). 

Only confessions procured by coercive official tactics should be

excluded as involuntary. United States v. Byram, 145 F.3d 405,

407 (1st Cir. 1998); Flemmi, 225 F.3d at 91.

“[S]ome types of police trickery can entail coercion: 

consider a confession obtained because the police falsely

threatened to take a suspect’s child away from her if she did not

cooperate.” Byram, 145 F.3d at 408 (citing Lynumn v. Illinois,

372 U.S. 528, 534 (1963) (police threatened removal of

defendant’s children if she did not cooperate)). But, “[o]f the

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numerous varieties of police trickery . . . a lie that relates to

a suspect’s connection to the crime is the least likely to render

a confession involuntary.” Holland v. McGinnis, 963 F.2d 1044,

1051 (7th Cir. 1992). It is a matter of degree — the degree of

improper coercion and the extent to which the deception employed

by officers interjected the kind of extrinsic considerations that

would overcome a defendant’s will by distorting an otherwise

rational choice of whether to confess or remain silent. Id.

I find that the government has met its burden in that regard

and established the voluntariness of defendant’s statements by a

preponderance of the evidence.

Although defendant was not informed of the specific charges

underlying his arrest, he was told that an arrest warrant had

been issued and that he was being arrested pursuant to that

warrant. He was fully advised of his Miranda rights; he said he

understood them (defendant has prior experience with the justice

system); he waived those rights, both orally and in writing; and

said he was willing to answer questions. When informed of the

false reasons for the officers’ action, he did not exhibit signs

of the kind of duress or fright or consternation or fear or

anxiety that might prompt him to say or do whatever was necessary

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to avoid what he posits was a possible “life sentence” or the

“death penalty” or even very serious trouble. I credit the

testimony of Special Agent Cook, and not defendant’s affidavit

with respect to what occurred in the car.

Ironically, perhaps, while Special Agent Cook’s ruse

seemingly worked, it apparently did not work as intended. 

Defendant wasn’t led to confess after anguishing over an

impossible choice and reflecting on the implicit dire

consequences peddled by Special Agent Cook. Rather, he

confessed, oddly enough, because he was “relieved” to learn that

the reason for the officers’ presence was only the supposed

shooting of a victim with a pistol traced back to him, and not

“something more than this” (one can only guess what “something

more than this” might have been that, in defendant’s mind, was of

greater concern to him than the representation that a firearm

used in a shooting had been traced back to him). See, e.g.,

United States v. Kruger, 151 F. Supp. 2d 86, 107 (D. Me. 2001)

(noting that demeanor of defendant “did not indicate that he felt

coerced in any way”).

Defendant’s explanation that he was not involved in the

fictional shooting incident because he never purchased the

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firearm in question was quick, responsive, and, of course was

true and not particularly inculpatory. That he proceeded to

acknowledge and confirm his completion of the ATF Form, including

his signature, the false social security number, and other

identifying information, was the product of trickery, perhaps,

but not trickery of a type or to a degree that sank to the level

of coercion that would render his statements involuntary and

inadmissable. It was only when Special Agent Cook presented the

ATF form and implied it was inconsistent with his explanation

that defendant “bit,” conceding that he filled out the form.

The ruse employed by Special Agent Cook involved deceptions

that, arguably, were somewhat attenuated from the crimes charged,

but they were not completely unrelated. The fiction that the

firearm had been “traced back” to defendant was directly related

to the crimes charged — the means of “tracing” being the very

form upon which defendant made material misrepresentations in an

effort to unlawfully obtain the firearm. The “extrinsic”

consideration in the ruse, if it was one — i.e., the allegedly

engendered fear of greater trouble — might, under other and far

more dramatic circumstances, warrant a finding of coercion, but

not here. At a minimum, a targeted defendant would have to be

actually coerced by the deception. That is to say, his will to

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remain silent would have to be overborne by the tactic of putting

an untenable choice to him, as in Lynumn (confess or lose custody

of your children). Here, defendant was not actually coerced; he

was, curiously enough, actually relieved to hear the tale spun by

Cook.

To be sure, Special Agent Cook’s ruse was of a different

kind than the usual exaggeration of inculpatory evidence

available to the police — suggesting, for example, that others

have confessed and implicated the defendant, and the like. It

may have been a ruse heading in the general direction of the line

between acceptable deception and coercion, but it did not reach

(and certainly did not cross over) that line. Given defendant’s

calm and relieved reaction to the ruse, and the deception’s

relatedness to the actual charges, and the ambiguity of the

implied connection between the fictional shooting and defendant,

I find that the deception employed, while certainly subject to

legitimate criticism, did not interject the kind of completely

extrinsic consideration, unrelated to the crimes charged, that

would, or did, overcome defendant’s will by distorting an

otherwise rational choice to remain silent or confess. And, I

find that this defendant’s will was not overborne; he was not

actually coerced. Defendant’s statements were made under rather

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benign interrogation conditions, after Miranda warnings had been

given, which he understood, and which he expressly waived. See

generally, 18 U.S.C. § 3501(b).

Finally, I do not find that the government’s conduct of the

interrogation amounted to outrageous misconduct so shocking to

the conscience as to violate defendant’s right to substantive due

process. See Rochin v. California, 342 U.S. 165, 172 (1952). It

was a ruse, but it was carried out in a benign atmosphere, was

somewhat ambiguous in its implication, defendant was not actually

coerced, and defendant understood he was free to stop talking at

any time. See Byram, 145 F.3d at 408-409.

Conclusion

Under the totality of the circumstances, defendant’s

statements to Special Agent Cook were voluntary. That is, they

were the product of a free and deliberate choice, rather than

coercive official tactics or intimidation. Defendant’s Motion to

Suppress Statements (document no. 15) is, therefore, denied.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

November 30, 2007

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cc: Helen w. Fitzgibbon, AUSA

Peter C. Horstmann, Esq.

Timothy E. Bush, Esq.

Jonathan R. Saxe, Esq.

U.S. Probation

U.S. Marshal

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