### *The HONORABLE JAMES M. BURNS, United States Distric t

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 LaBrun erie's inculpatory statement was given in the course of plea discussions, the dis trict court suppressed the statem ent under Rule 11(e)(6)(D) of the Federal Rules of Crimina l Procedure. The government appeals. We reverse.

### Those charg es included bribery, money laundering, income tax 1 

### evasion, mail fraud and fraud against the government.
-2- I. BACKGROUND
This appeal involves a troublesome situation in which law enfor cement agents sought a suspect's cooperation and are now attempting to use hi s statements against him. The Federal Bureau of I nvestigation (FBI) and the Internal Revenue Serv ice (IRS) conducted an investigation into corruption in the city government of Kansas City (Missouri). During th e 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 be en actively cooperating in the investigation.

At some point during the investigation, the FBI needed th e cooperation of anothe r suspect. LaBrunerie was selected for the task and approached at his Kansas City home at approximat ely 8:00 a.m. on September 15, 199 4. The reportedly cordial meeting, between LaBrunerie and tw o agents, lasted for roughly thirty minutes. LaBr unerie was informed of the criminal c harges he could face, the strong possibility of jail time, and 1 the importance of his cooperation. After LaBrun erie briefly explained his role in the offenses, the agents requested his further cooperation an d asked him to attend another meeting later that s ame 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 atte nd the second meeting. It began around 10:00 a.m. and lasted approximately three hours. Several FBI agents were present, as was Assistant United State s Attorney Paul Becker. Following introductions, Becker spent approximately the first fifteen minutes of the meeting explain ing 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 ta ping of conversations regarding the bribery schemes. If LaBrunerie' s cohorts were made aware of his cooperation with the FBI, the y would likely not freely discuss those matters with him.
-3- effect of his cooperation on his sentence, and, in general terms, th e 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. I ndeed, the FBI agents admittedly discouraged LaBrunerie from obtaining counsel an d did not read him his Miranda rights. The agents informed LaBrunerie that althoug h he was a target of the investigation, he was free to leave th e meetings at any time and was not under arrest. LaBrunerie was furthe r instructed not to tel l anyone about the meetings because public knowledge of his cooperation would lessen his value as an informant. 2

For various reasons, LaBrunerie's co operation with the investigation disintegrated. After LaBrunerie informed others of his cooperation with law enforcement, the FBI effectively dropped him as a source. He wa s sub sequentlyindicted on various charges involving the bribery o f councilman Hernandez. LaBrunerie then moved to suppress his September 15t h statements.
At a suppression hearing before the magistrate judge, both LaBr unerie and the prosecution focused on the issues of whe ther the FBI's questioning of LaB runerie was custodial and whether his statements were voluntaril y given. The magistrate judge found that the statement made at the 8:0 0 meeti ng was admissible as voluntarily given during non-custodia l questioning. This appeal does not involve that ruling. At the end of tha t 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 distric t 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 d ecision in Ornelas . Next, we note that despite stating the appropriat e level of review was one of clear error, a closer reading of th e cases shows that the court proceeded to review "the totality of the circumstances." Hare , 49 F.3dat 451; Lloyd , 43 F.3d at 1186. In other words, the court's actua l review much more closely resembled a de novo review than it did a clearly erroneous review. In an y event, we would reach the same result using either standard o f 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.
-4- discus sions and was, thus, inadmissible under Federal Rule of Crimina l Pro cedure 11(e)(6)(D) (Rule 11). Neither side had considered or argue d 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 a n 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 sen tencing and, therefore, is admissible evidence.

II. DISCUSSION

The distr ict court's ultimate determination that LaBrunerie's 10:00 statement was given i n the course of plea discussions is a mixed question of law and fact. See Ornelas v. United States , 116 S. Ct. 1657, 166 2 (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 , therefor e, we review the determination de novo. See id. To determin e 3 whether LaBrunerie's

### -5-

sta tement was given in the course of plea discussions, we look to th e specific facts and examine the totality of the circumstances surrounding the statement. United States v. Grant , 622 F.2d308, 312 (8th Cir. 1980).

The essential purpose of Rule 11, upon which the district court based its su ppression order, is promoting active plea negotiations an d
encour aging "frank discussions" in plea bargaining. Rachlin v. Unite d States , 7 23 F.2d 1373, 1376 (8th Cir. 1983). The rule provides, i n relevant part:

[E]vidence of the following is not, in any civil or crimina l proceeding, admissible a gainst the defendant who made the plea or was a participant in the plea discussions:

. . . . (D) any statement made in the course o f plea discussions with a n attorney for the government which do not resul t in a plea of guilty or which result in a plea of guilt y later withdrawn.

Fed. R. Crim. P. 11(e)(6)(D). By its plain language, the rule makes i t 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.2 d 1356, 1367 (5th Cir. 1978) (court must distinguish betw een those discussions in which "the accused was merely making a n admission and those discussions in which the accused was seeking t o negoti ate a plea agreement"). Therefore, we must determine whethe r LaBrunerie's 10:00 statement was given "in the c ourse of plea discussions" within the meaning of Rule 11.

This cas e is indistinguishable from United States v. Hare , 49 F.3 d 447 (8th Cir.), cert. denied , 116 S. Ct. 211 (1995). In Hare , we agreed with the district court that statements should not be

### -6-

suppressed because th ey were not given in the course of plea discussions. Id. at 449. The fact s 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 FB I agents who lacked the authority to engage in plea bargaining, they bot h voluntarily confessed their involvement in criminal activities to thos e agents. Both initial meetings were followed by second meetings, at remove d locations, to which the defendants voluntarily journeyed. At both of thes e
sec ond encounters, the then-present Assistant United States Attorney s engage d in generalized discussions of the sentencing guidelines and th e possible effect of cooperation on the defendants' respective sentences.

In neither the present case nor the Hare case did the Assistan t United States Attorneys discuss a possible plea bargain or in any wa y encourag e arrival at a plea bargain before the defendants made th e incriminating statements. In fact, plea bargains were unattractive option s for the FBI because the attendant publicity woul d negate the effectiveness of the suspects' cooperation. Both LaBrunerie and Hare offered thei r
coo peration in the hope of bettering their situation somewhere down th e road. As we stated in Hare :

[The defendant's] statements were offered unconditi onally in an eff ort to cooperate. Perhaps [the defendant] was hopeful o f improving his situation and eventually gaining a motion fo r substantial assistance at sentencing, but the state ments cannot be said to have been made in the course of plea discussion s wit hin the meaning of the exclusionary rules because no ple a bargain was offered or even contemplated at that point

.

Id. at 451 (emphasis added).
Simply put, normal plea discussion events did not occur in th e present case: (1) no specific plea offer was made; (2) no deadline

### -7-

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 o ccurred--only a generalized discussion to give the suspect a n accurate appraisal of his situation occurred; and (5) no defense attorney was retained to assis t in the formal plea bargaining process. See id. at 450; Rachlin , 723 F.2d at 1376-77. LaBrunerie k new that the offenses with which he could be charged were serious. Neverth eless, such knowledge does not transform an admi ssion into a plea discussion. Therefore, we find on the facts of this cas e, Rule 11 was inapplicable to the statement here at issue.

III. CONCLUSION

Because we find no plea discussion to justify suppression o f LaBrunerie's statemen t 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.