*The HONORABLE JAMES M. BURNS, United States District

Judge for the District of Oregon, sitting by designation.

___________

No. 95-4102

___________

United States of America, *

*

Plaintiff/Appellant, *

* Appeal from the United States

v. * District Court for the Western 

* District of Missouri.

Mark A. Morgan, *

*

Defendant, *

*

Walker LaBrunerie, *

*

Defendant/Appellee, *

*

Charles J. Weber, *

*

Defendant. *

___________

 Submitted: April 9, 1996

 Filed: August 12, 1996

___________

Before BEAM and MURPHY, Circuit Judges, and BURNS, District Judge. *

___________

BEAM, Circuit Judge.

After determining that Walker LaBrunerie's inculpatory statement was

given in the course of plea discussions, the district court suppressed the

statement under Rule 11(e)(6)(D) of the Federal Rules of Criminal

Procedure. The government appeals. We reverse. 
 Those charges included bribery, money laundering, income tax 1

evasion, mail fraud and fraud against the government.

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I. BACKGROUND

This appeal involves a troublesome situation in which law enforcement

agents sought a suspect's cooperation and are now attempting to use his

statements against him. The Federal Bureau of Investigation (FBI) and the

Internal Revenue Service (IRS) conducted an investigation into corruption

in the city government of Kansas City (Missouri). During the

investigation, LaBrunerie came under suspicion for, among other things,

bribing city council member Michael Hernandez to obtain favorable zoning

action. Unknown to LaBrunerie, Hernandez had been actively cooperating in

the investigation. 

At some point during the investigation, the FBI needed the

cooperation of another suspect. LaBrunerie was selected for the task and

approached at his Kansas City home at approximately 8:00 a.m. on September

15, 1994. The reportedly cordial meeting, between LaBrunerie and two

agents, lasted for roughly thirty minutes. LaBrunerie was informed of the

criminal charges he could face, the strong possibility of jail time, and 1

the importance of his cooperation. After LaBrunerie briefly explained his

role in the offenses, the agents requested his further cooperation and

asked him to attend another meeting later that same morning. Stating that

he had no option other than cooperating with the investigators, LaBrunerie

agreed to attend the meeting. 

LaBrunerie drove to a hotel several miles from his home to attend the

second meeting. It began around 10:00 a.m. and lasted approximately three

hours. Several FBI agents were present, as was Assistant United States

Attorney Paul Becker. Following introductions, Becker spent approximately

the first fifteen minutes of the meeting explaining the charges LaBrunerie

could face, the
 The FBI agents wanted LaBrunerie to work undercover for them. 2

This work was to entail, among other things, LaBrunerie's taping of

conversations regarding the bribery schemes. If LaBrunerie's

cohorts were made aware of his cooperation with the FBI, they would

likely not freely discuss those matters with him. 

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effect of his cooperation on his sentence, and, in general terms, the

federal sentencing guidelines. At this meeting, LaBrunerie incriminated

himself by giving a detailed explanation of his role in the offenses. 

LaBrunerie attended both meetings without obtaining counsel. Indeed,

the FBI agents admittedly discouraged LaBrunerie from obtaining counsel and

did not read him his Miranda rights. The agents informed LaBrunerie that

although he was a target of the investigation, he was free to leave the

meetings at any time and was not under arrest. LaBrunerie was further

instructed not to tell anyone about the meetings because public knowledge

of his cooperation would lessen his value as an informant. 

2

For various reasons, LaBrunerie's cooperation with the investigation

disintegrated. After LaBrunerie informed others of his cooperation with

law enforcement, the FBI effectively dropped him as a source. He was

subsequently indicted on various charges involving the bribery of

councilman Hernandez. LaBrunerie then moved to suppress his September 15th

statements.

At a suppression hearing before the magistrate judge, both LaBrunerie

and the prosecution focused on the issues of whether the FBI's questioning

of LaBrunerie was custodial and whether his statements were voluntarily

given. The magistrate judge found that the statement made at the 8:00

meeting was admissible as voluntarily given during non-custodial

questioning. This appeal does not involve that ruling. At the end of that

suppression hearing, however, the magistrate judge sua sponte raised the

issue of whether the 10:00 statement was given in the course of plea
 In so holding, we recognize the contrary Eighth Circuit cases 3

cited by the appellees for the proposition that the district

court's denial of a motion to suppress is reviewed under a clearly

erroneous standard. See, e.g., United States v. Hare, 49 F.3d 447,

450 (8th Cir.), cert. denied, 116 S. Ct. 211 (1995); United States

v. Lloyd, 43 F.3d 1183, 1186 (8th Cir. 1994). Initially, we note

that those cases predate the United States Supreme Court's decision

in Ornelas. Next, we note that despite stating the appropriate

level of review was one of clear error, a closer reading of the

cases shows that the court proceeded to review "the totality of the

circumstances." Hare, 49 F.3d at 451; Lloyd, 43 F.3d at 1186. In

other words, the court's actual review much more closely resembled

a de novo review than it did a clearly erroneous review. In any

event, we would reach the same result using either standard of

review, because on these facts the district court committed clear

error by determining LaBrunerie's 10:00 statement was made in the

course of plea discussions. 

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discussions and was, thus, inadmissible under Federal Rule of Criminal

Procedure 11(e)(6)(D) (Rule 11). Neither side had considered or argued

this point. 

The magistrate judge found the 10:00 statement was made in the course

of plea discussions and recommended that it be suppressed. The district

court held a hearing specifically addressing this issue and entered an

order suppressing the 10:00 statement. The government alleges that this

ruling was erroneous because the 10:00 statement by LaBrunerie was merely

offered in the hope of obtaining leniency in sentencing and, therefore, is

admissible evidence.

II. DISCUSSION

The district court's ultimate determination that LaBrunerie's 10:00

statement was given in the course of plea discussions is a mixed question

of law and fact. See Ornelas v. United States, 116 S. Ct. 1657, 1662

(1996) (holding district court's determination of whether probable cause

existed for search, requiring application of historical facts to law, is

mixed question of law and fact and should be reviewed de novo). On appeal,

therefore, we review the determination de novo. See id. To determine

3

whether LaBrunerie's
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statement was given in the course of plea discussions, we look to the

specific facts and examine the totality of the circumstances surrounding

the statement. United States v. Grant, 622 F.2d 308, 312 (8th Cir. 1980).

 

The essential purpose of Rule 11, upon which the district court based

its suppression order, is promoting active plea negotiations and

encouraging "frank discussions" in plea bargaining. Rachlin v. United

States, 723 F.2d 1373, 1376 (8th Cir. 1983). The rule provides, in

relevant part:

[E]vidence of the following is not, in any civil or criminal

proceeding, admissible against the defendant who made the plea

or was a participant in the plea discussions:

. . . .

(D) any statement made in the course of plea discussions

with an attorney for the government which do not result

in a plea of guilty or which result in a plea of guilty

later withdrawn.

Fed. R. Crim. P. 11(e)(6)(D). By its plain language, the rule makes it

clear that a statement must be given "in the course of plea discussions"

to come within the rule's exclusionary language. See, e.g., United States

v. Robertson, 582 F.2d 1356, 1367 (5th Cir. 1978) (court must distinguish

between those discussions in which "the accused was merely making an

admission and those discussions in which the accused was seeking to

negotiate a plea agreement"). Therefore, we must determine whether

LaBrunerie's 10:00 statement was given "in the course of plea discussions"

within the meaning of Rule 11. 

 

This case is indistinguishable from United States v. Hare, 49 F.3d

447 (8th Cir.), cert. denied, 116 S. Ct. 211 (1995). In Hare, we agreed

with the district court that statements should not be
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suppressed because they were not given in the course of plea discussions.

Id. at 449. The facts of this case are very similar. In both cases, the

defendants were attorneys; here, LaBrunerie is a graduate of Harvard Law

School. Although both LaBrunerie and Hare were originally contacted by FBI

agents who lacked the authority to engage in plea bargaining, they both

voluntarily confessed their involvement in criminal activities to those

agents. Both initial meetings were followed by second meetings, at removed

locations, to which the defendants voluntarily journeyed. At both of these

second encounters, the then-present Assistant United States Attorneys

engaged in generalized discussions of the sentencing guidelines and the

possible effect of cooperation on the defendants' respective sentences. 

In neither the present case nor the Hare case did the Assistant

United States Attorneys discuss a possible plea bargain or in any way

encourage arrival at a plea bargain before the defendants made the

incriminating statements. In fact, plea bargains were unattractive options

for the FBI because the attendant publicity would negate the effectiveness

of the suspects' cooperation. Both LaBrunerie and Hare offered their

cooperation in the hope of bettering their situation somewhere down the

road. As we stated in Hare:

 [The defendant's] statements were offered unconditionally in an

effort to cooperate. Perhaps [the defendant] was hopeful of

improving his situation and eventually gaining a motion for

substantial assistance at sentencing, but the statements cannot

be said to have been made in the course of plea discussions

within the meaning of the exclusionary rules because no plea

bargain was offered or even contemplated at that point.

Id. at 451 (emphasis added). 

Simply put, normal plea discussion events did not occur in the

present case: (1) no specific plea offer was made; (2) no deadline
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to plead was imposed; (3) no offer to drop specific charges was made; (4)

no discussion of sentencing guidelines for the purpose of negotiating a

plea occurred--only a generalized discussion to give the suspect an

accurate appraisal of his situation occurred; and (5) no defense attorney

was retained to assist in the formal plea bargaining process. See id. at

450; Rachlin, 723 F.2d at 1376-77. LaBrunerie knew that the offenses with

which he could be charged were serious. Nevertheless, such knowledge does

not transform an admission into a plea discussion. Therefore, we find on

the facts of this case, Rule 11 was inapplicable to the statement here at

issue.

III. CONCLUSION

Because we find no plea discussion to justify suppression of

LaBrunerie's statement under Rule 11(e)(6)(D), we reverse the judgment of

the district court.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.