1The Honorable Robert W. Pratt, United States District Judge for the Southern

District of Iowa, sitting by designation.

2The Honorable Mark W. Bennett, United States District Judge for the Northern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-2443

___________

United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the Northern

* District of Iowa.

Ramiro Astello, *

*

Defendant - Appellant. *

___________

Submitted: February 15, 2000

Filed: March 5, 2001

___________

Before BEAM and JOHN R. GIBSON, Circuit Judges, and PRATT,1 District Judge.

___________

JOHN R. GIBSON, Circuit Judge.

Ramiro Astello appeals the district court’s2 denial of his motion to suppress two

statements he made to the police in conjunction with an investigation of the kidnapping
3See Miranda v. Arizona, 384 U.S. 436 (1966). Astello had been informed of

his rights at the time of his arrest as well.

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and murder of Sky Erickson. The statements were admitted at trial, and the jury

convicted Astello of kidnapping, conspiracy to commit kidnapping, and use of a firearm

in relationship to a crime of violence, in violation of 18 U.S.C. §§ 1201(a), 1201(c),

and 924(c) (1994 & Supp. IV 1998). Astello received a mandatory life sentence. We

affirm.

On June 6, 1997, Erickson was taken from Iowa to an abandoned Minnesota

farmhouse, where he was shot and killed. After an investigation and pursuant to a

warrant, the police arrested Astello at his home in Estherville, Iowa on June 19. An

Estherville officer took Astello to the Emmet County Sheriff Chief Deputy's office. At

the office, FBI agent Robert Birnie and Minnesota agent Don Enger informed Astello

of his Miranda rights.3

 Astello signed a waiver-of-rights form at approximately 6:45

p.m.

During the questioning, the agents informed Astello that he had been arrested for

kidnapping that resulted in death and that the penalty for the crime in Iowa was life in

prison with no chance of parole. They also told him that he could be charged under

Minnesota or federal law for the same crime. At first, Astello denied that he was

involved in the kidnapping and murder. Less than an hour after the interrogation began,

Astello began telling the agents what happened the night of the kidnapping. The

interrogation concluded at 9:26 p.m.

Later that night, Astello asked to see the two agents again. He met with them

on June 20 and supplemented his earlier statement with additional details of Erickson’s

kidnapping and death.
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Before trial, Astello moved to suppress the two statements as involuntary. The

district court referred the motion to a magistrate judge, who found that the first

statement was involuntary but that the second was not. The district court rejected the

magistrate's finding that the June 19 statement was coerced, held that both statements

were voluntary, and denied Astello's motion to suppress. Astello appeals, arguing that

the agents coerced his first statement and that this tainted his second statement.

We review the district court's ultimate determination of voluntariness de novo,

but we review the factual findings underlying that determination for clear error. United

States v. Otters, 197 F.3d 316, 317 (8th Cir. 1999). The government must prove by a

preponderance of the evidence that the challenged statements were voluntary. Lego v.

Twomey, 404 U.S. 477, 489 (1972). 

It is undisputed that Astello received the Miranda warnings and waived his rights

at the beginning of the June 19 interrogation. "[C]ases in which a defendant can make

a colorable argument that a self-incriminating statement was 'compelled' despite the fact

that the law enforcement authorities adhered to the dictates of Miranda are rare."

Berkemer v. McCarty, 468 U.S. 420, 433 n.20 (1984). 

To determine whether this is one of those rare cases, we consider the totality of

the circumstances surrounding Astello's confession, focusing on both the conduct of the

agents and Astello's capacity to resist pressure to confess. See United States v.

Kilgore, 58 F.3d 350, 353 (8th Cir. 1995). "The appropriate test for determining the

voluntariness of a confession is whether the confession was extracted by threats,

violence, or direct or implied promises, such that the defendant's will was overborne

and his capacity for self-determination critically impaired." Id. (internal quotations and

citation omitted).

In support of his argument that his June 19 statement was involuntary, Astello

relies most heavily on the fact that he was not allowed to see his mother. During the
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interrogation, Astello, who was eighteen years old, asked to see his mother: "Well, if

you give me a last chance to talk to my mom at least right now before I say anything,

cuz I think I'll just stick with the truth then." After several more minutes of discussion

between Astello and the agents, Astello repeated his request: "I want to talk to my

mom first. Then I'll talk. Yeah, I was involved in it, that's all. You wanna hear that?

I was involved in it. . . . I know what went on and everything about it. I told you I

need to talk to my mom first." When Enger asked what he wanted to talk to his mother

about, Astello responded, "Just to tell her I'm--what's goin' on." Enger then told Astello

that he could talk to his mother after he told them what happened, and Astello agreed.

While Astello may have been seeking guidance, his words indicate that he asked to see

his mother after he had decided to confess. After considering all the circumstances, we

hold that the agents' failure to allow Astello to speak to his mother does not render his

statement involuntary. Cf. United States ex rel. Riley v. Franzen, 653 F.2d 1153, 1160-

62 (7th Cir. 1981) (adopting a case-by-case approach to determine whether denial of

a juvenile's request for a parent renders a confession inadmissible); Rone v. Wyrick,

764 F.2d 532, 535 (8th Cir. 1985) (parental presence not mandatory for juvenile's

confession to be admissible in federal court).

Astello also alleges that the agents improperly used several tactics to coerce him

to confess. He argues that they placed time constraints on his decision whether to talk

to them, thus subjecting him to psychological pressure; they made false promises; and

they played on his emotions and used his respect for his family against him. Obviously,

interrogation of a suspect will involve some pressure because its purpose is to elicit a

confession. In order to obtain the desired result, interrogators use a laundry list of

tactics. See Richard A. Leo, Inside the Interrogation Room, 86 J. Crim. L. &

Criminology 266, 278 (1996). "Numerous cases have held that questioning tactics such

as a raised voice, deception, or a sympathetic attitude on the part of the interrogator

will not render a confession involuntary unless the overall impact of the interrogation

caused the defendant's will to be overborne." Jenner v. Smith, 982 F.2d 329, 334 (8th

Cir. 1993).
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Here, the agents used a train analogy, telling Astello that the train was leaving

the station and those who told the truth would be on the train while those left behind

at the station would be charged with the crime. They said that the train was getting

crowded, and that those who were on the train would testify against him. Certainly,

these statements may have influenced Astello's decision to tell the truth. Having

carefully read and listened to the June 19 interrogation in its entirety, however, we

conclude that the statements were "not so coercive as to deprive [Astello] of [his]

ability to make an unconstrained decision to confess." United States v. Mendoza, 85

F.3d 1347, 1351 (8th Cir. 1996).

At times during the interrogation, the agents seemed to imply that Astello would

get something less than life in prison if he confessed. On more than one occasion,

however, they specifically told Astello that they could not make any promises. In any

event, a promise of leniency does not necessarily make a statement involuntary. See

Kilgore, 58 F.3d at 353. In Sumpter v. Nix, 863 F.2d 563, 565 (8th Cir. 1988), we

concluded that a confession was voluntary even though the defendant alleged that his

interrogators made implied promises of leniency. The defendant's knowledge that

confessing would be risky supported our conclusion. Id. Similarly, Astello knew the

risks of confessing. At one point during the questioning, he said, "If I say the truth, I'm

still goin' in." Later in the interrogation, he stated, "Yeah, I'm gonna tell the truth,

because I guess we're all gonna be punished for what we did . . . ."

The agents told Astello that he had disgraced his family and that his lies

dishonored his family. They also told him that he had broken his father's heart. Astello

did not seem to be affected in the least by this "family dishonor" interrogation tactic.

Immediately after Enger said, "[W]hy do you persist in bringing dishonor to your

family, persist in bringing dishonor to you by lyin'? I mean you have nothing to gain.

. . . [Y]ou're the last of the tough guys, and everyone that is tougher than you is goin'

down? Come on," Astello commented, "That's a shame, huh?" and laughed. Astello's

response indicates that his will was not overborne.
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Finally, Astello argues that his age, limited education, and lack of experience

with the criminal justice system weigh in favor of involuntariness. Astello turned

eighteen only two weeks before he confessed to his involvement in the kidnapping. He

had completed eleventh grade and had been arrested on two different dates for three

crimes: possession of stolen property, assault, and disorderly conduct. These charges

were waived from juvenile court and eventually dismissed after he was arrested in this

case. The district court found that Astello was "a mature, self-assured eighteen year

old person. It is clear that defendant had the capacity to understand, and did

understand, what was being said at the interview, and that he had the capacity to

measure his response." The district court also found that Astello's "prior dealings with

the criminal justice system would have allowed him to more fully comprehend the

serious situation in which he found himself and [rendered him] less likely to be

intimidated by the agents." These findings are not clearly erroneous, and they support

the district court's determination that Astello's June 19 statement was voluntary.

Astello knew his rights and understood the consequences of committing the

crime for which he was arrested. He was questioned for less than three hours and was

not mistreated in any way. Police interrogation tactics are designed to elicit a response,

and the fact that the tactics produced the intended result here does not make Astello's

confession involuntary. This, of course, does not mean that we condone any of the

tactics used by the agents in this case. We see no indication, however, that Astello's

will was overborne and his capacity for self-determination critically impaired.

With regard to the June 20 statement, Astello argues only that the coercion that

led to his first statement tainted the second. As we have concluded that his first

statement was voluntary, there is no question that the second was admissible as well.

We affirm the judgment of the district court.
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PRATT, District Judge, concurring in part and dissenting in part.

Astello’s second, unwarned confession given on June 20, 1997 was given freely

and voluntarily, and therefore the district court was correct in not suppressing that

confession. In this respect, I concur with the majority’s opinion. As to Astello’s June

19, 1997 statement, however, I respectfully dissent. I believe that Astello’s statements

given to the interviewing agents on June 19th were the product of compulsion, and

therefore obtained in violation of his Fifth Amendment rights. 

I.

It is undisputed that after reading Astello his rights pursuant to Miranda v.

Arizona, 384 U.S. 436 (1966), and obtaining from him a signed waiver form, agents

Enger and Birnie launched into a focused interrogation of Astello, quizzing him about

the events and circumstances surrounding the June 6th murder. 

A review of the tape and transcript of the June 19th interrogation reveals that the

agents repeatedly tried, but failed, to get Astello to make inculpatory statements about

him and others involved. During the first hour of the interrogation, they employed, as

the majority puts it, a “laundry list of tactics,” ante at 4, to elicit from Astello a

confession. These tactics included: use of a train analogy (“you still have the

opportunity to get on that train, and tell us what happened”); implied promises of

leniency (cooperation may result in “something less” than mandatory life sentence);

accusations that the Defendant was a “classic” liar; sympathetic appeals to the

Defendant (“[we] don’t think that you’re a bad guy”; “things happen”; “you just

happened to be at a bad place at a bad time”); and guilt (“You’ve disgraced” your

father who is “too nice a person” and “[y]our mother [who] is too nice a lady”).

Throughout this initial phase of the interrogation, Astello answered the questions

posed to him. He never told the agents to stop their questioning. Astello consistently

denied his involvement in the June 6th murder. 
4

 In the transcript, the names of the interviewers are denominated by “DE” and

“BB” for Don Enger and Bob Birnie respectively. The Defendant is denominated as

“RA.” For clarity, I cite to their last names only. 

-8-

After about an hour, however, the tenor of the interrogation changed. Astello

signaled his intention to suspend the questioning and speak to his mother first before

saying anything else to the agents. Astello requested three times to speak with his

mother before telling his story, but to no avail. The relevant exchange, which is

omitted from the majority’s opinion, is as follows:

Astello4: Well, if you give me a last chance to talk to my mom at least right now

before I say anything, cuz I think I’ll just stick with the truth then.

Enger: You wanna talk to your mom first?

Astello: Yeah.

Enger: What’s your feeling?

Astello: Cuz I guess this ain’t gonna make any difference I guess. If I’m lying,

I’m still going’ in. If I say the truth, I’m still going’ in, so what’s the difference.

Enger: Well, you’re going’ in. * * *

Birnie: You’re not gonna be able to hide behind your mom’s skirt anymore. . .

. [Y]ou can pull the wool over your mom’s eyes; you haven’t done it to your dad.

Enger: Other than breakin’ his heart.

Birnie: But your mom’s not gonna be able to come and bail you out this time.

What’s it gonna be?

Astello: I told you already. I want to talk to my mom first. Then I’ll talk.

Yeah, I was involved in it, that’s all. You wanna hear that? I was involved in it.

Enger: We know that. 

Astello: I know what went on and everything about it. I told you I need to talk

to my mom first.

Enger: Let me ask you what you wanna talk to your mom about. You’re a big

boy now. 
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Astello: Yeah, I know I am. 

Enger: Okay.

Astello: Just to tell her I’m – what’s going’ on.

Enger: Why don’t you do this.

Astello: Yeah.

Enger: Why don’t you tell us what happened, and when we’re done, we’ll give

you the opportunity to talk to your mom.

Astello: Okay.

Enger: You can have a minute with her.

Astello: Just a minute?

Enger: Well, you can have a reasonable amount of time, how’s that?

Astello: Okay.

Later that same day, Astello confessed, implicating himself in the kidnaping and

murder of Sky Erickson. The June 19th interrogation concluded at about 9:30 p.m.,

approximately 3 hours after it began. 

Later that night, Astello requested to speak with agents Birnie and Enger again

about the murder. They met with Astello at a different holding facility at 9:43 a.m. on

June 20, 1997. The agents did not give fresh Miranda warnings. Astello provided

additional details surrounding his involvement in the June 6th murder. This second

interview, which was also tape recorded, lasted approximately 90 minutes. 

II. 

In Miranda, the Supreme Court observed: 

Once warnings have been given, the subsequent procedure is clear. If the

individual indicates in any manner, at any time prior to or during

questioning, that he wishes to remain silent, the interrogation must cease.

At this point he has shown that he intends to exercise his Fifth Amendment
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privilege; any statement taken after the person invokes his privilege cannot

be other than the product of compulsion, subtle or otherwise. Without the

right to cut off questioning, the setting of in-custody interrogation operates

on the individual to overcome free choice in producing a statement after

the privilege has been once invoked.

384 U.S. at 473-74. 

In Michigan v. Mosley, 423 U.S. 96 (1975), the Supreme Court clarified this

quoted passage. “The critical safeguard identified in the passage at issue is a person’s

‘right to cut off questioning.’” Id. at 103. The “admissibility of statements obtained

after the person in custody has decided to remain silent,” held the Court, “depends

under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously

honored.’” Id. at 104. 

Factors relevant in determining whether the accused’s right to cut off questioning

has been “scrupulously honored” are: “a) whether the police immediately ceased the

interrogation upon defendant’s request, b) whether they resumed questioning only after

the passage of a significant period of time and provided fresh Miranda warnings, and

c) whether they restricted later interrogation to a crime that had not been the subject of

the first interrogation.” Jackson v. Wyrick, 730 F.2d 1177, 1179 (8th Cir. 1984) (citing

Mosley, 423 U.S. at 106)). The emphasis typically is on the first three factors, the last

factor being non-dispositive. See, e.g., Brown v. Caspari, 186 F.3d 1011, 1015 (8th

Cir. 1999); Stumes v. Solem, 752 F.2d 317, 322 (8th Cir. 1985). 

Ordinarily, “to invoke one’s right to remain silent, one must unequivocally

express his desire to remain silent.” Simmons v. Bowersox, 235 F.3d 1124, 1131 (8th

Cir. 2001) (citing United States v. Al-Muqsit, 191 F.3d 928, 936 (8th Cir. 1999));

United States v. Johnson, 56 F.3d 947, 955 (8th Cir. 1995) (“clear, consistent

expression of a desire to remain silent” required) (citation omitted). However, when the

assertion of one’s Fifth Amendment right is ambiguous or equivocal, the law permits

further inquiry, but only to clarify whether the accused is in fact invoking that right.

See Simmons, 235 F.3d at 1132 n.3 (after an ambiguous assertion of right to remain
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silent, questioning “should immediately cease and [the agent] should then inquire of the

suspect as to the correct interpretation of the statement”) (citation omitted); Bobo v.

Kolb, 969 F.2d 391, 396 (7th Cir. 1992) (same); Campaneria v. Reid, 891 F.2d 1014,

1021 (2d Cir. 1989) (same), cert. denied, 499 U.S. 949 (1991). The heightened

attention the law accords even to inarticulate requests to be silent is consistent with that

right’s undergirding premise that “[t]hrough the exercise of his option to terminate

questioning,” it is the accused, and not the interrogators, who “control the time at

which questioning occurs, the subjects discussed, and the duration of the interrogation.”

Mosley, 423 U.S. at 103-04. 

In this case, once informed of his rights, Astello freely answered the questions

put to him during the first hour of the interrogation. There then came a point during the

interrogation when Astello decided to halt the direct questioning about his involvement

in the crime and talk with his mother. Astello stated: “[I]f you give me a last chance

to talk to my mom at least right now before I say anything, cuz I think I’ll just stick

with the truth then.” At this juncture, the mandate of Miranda and Mosley required the

agents to immediately terminate questioning, see, e.g., Otey v. Grammar, 859 F.2d

575, 579 (8th Cir. 1988) (when defendant “appeared unwilling to answer specific

questions, interrogation immediately ceased”), cert. denied, 497 U.S. 1031 (1990);

United States v. Udey, 748 F.2d 1231, 1242 (8th Cir. 1984) (when defendant

“expressed some unwillingness to talk, the interrogation was terminated”), cert. denied,

472 U.S. 1017 (1985), and resume only after a significant period of time had passed

and fresh Miranda warnings given. See also United States v. Cody, 114 F.3d 772,

775-76 (8th Cir. 1997). 

True, Astello’s was not the clearest invocation of the right to remain silent,

though this fact should hardly work an automatic prejudice against him. See Emspak

v. United States, 349 U.S. 190, 194 (1955) (“ritualistic” or “talismanic” phrases are not

always necessary before one invokes his Fifth Amendment privilege against selfincrimination). At the very least, any follow-up questions should have been used only

to clarify whether Astello was in fact invoking his Fifth Amendment right. For
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example, in Johnson, 56 F.3d at 955, when asked if he wished to waive his rights, the

defendant responded equivocally: “[I]f I tell you anything, you’re just going to use it

against me later, aren’t you? . . . [Y]ou guys have all the evidence against me. I don’t

need to make any statement. I don’t need to say anything.” After clarifying questions

from agents, the defendant then stated: “I know I’m going to jail for a long time, the

rest of my life, I can’t help myself by talking to you.” Id. We determined that answer

to be a “clear” invocation of the defendant’s Fifth Amendment rights. Id. The agents

“acted prudently,” we observed, “by attempting to clarify whether Johnson was

asserting his right to silence and by not further questioning him after it was clear that

Johnson did not want to talk.” Id. (citation omitted). 

None of the procedures prescribed by Mosley were followed. Instead, sensing

that a confession was close at hand, the agents redoubled their efforts to convince

Astello to talk:

Astello: I told you already. I want to talk to my mom first. Then I’ll talk.

Yeah. I was involved in it, that’s all. You wanna hear that? I was involved in it.

Enger: We know that.

Astello: I know what went on and everything about it. I told you I need to talk

to my mom first. 

Enger: Let me ask you what you wanna talk to your mom about. You’re a big

boy now. 

Astello: Yeah, I know I am. * * *

Enger: Why don’t you do this. . . . Why don’t you tell us what happened, and

when we’re done, we’ll give you the opportunity to talk to your mom.

Astello: Okay.

In their repeated attempts to get Astello to talk before consulting with his mother,

the agents did not allow Astello to “control the time at which questioning occurs, the

subjects discussed, and the duration of the interrogation.” Mosley, 423 U.S. at 103-04;

Campaneria, 891 F.2d at 1021 (agent’s remark that “If you want to talk to us, now is
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the time to do it” was not aimed at resolving ambiguity but rather at changing

defendant’s mind). This is a case “where the police failed to honor a decision of a

person in custody to cut off questioning, either by refusing to discontinue the

interrogation upon request or by persisting in repeated efforts to wear down his

resistance and make him change his mind.” Mosley, 423 U.S. at 105-06; see also id.

at 102 (“To permit the continuation of custodial interrogation after a momentary

cessation would clearly frustrate the purpose of Miranda by allowing repeated rounds

of questioning to undermine the will of the person being questioned.”); Wyrick, 730

F.2d at 1179 (“Repeated interrogation despite the defendant’s refusal to give a

statement can violate Miranda . . . .”); United States ex rel. Riley v. Franzen, 653 F.2d

1153, 1161-62 (7th Cir.) (“[A] single request [to see one’s parent] should be viewed

differently than repeated requests, especially if the repetitions are in response to a

series of police questions regarding the crime under investigation. Under some

circumstances, the latter properly may be viewed as an invocation of the suspect’s right

to silence . . . .”), cert. denied, 454 U.S. 1067 (1981). Because Astello’s right to cut

off questioning was not “scrupulously honored,” Mosley, 423 U.S. at 104, his

incriminating statements of June 19, given as they were under the pressure and

influence of two experienced agents, “cannot be other than the product of compulsion,

subtle or otherwise.” Miranda, 384 U.S. at 474. Therefore, this confession should

have been suppressed. And for this reason, I dissent. 

A true copy.

Attest:

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