Filed: June 3, 1997

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-4242

(CR-95-175)

United States of America,

Plaintiff - Appellant,

versus

James Braxton,

Defendant - Appellee.

ORDER

The Court amends its opinion filed May 6, 1997, as follows:

On page 13 -- the first sentence in Section IV is corrected to

begin: "Because the police activity used to elicit an incriminating statement must be coercive before a statement will be held

to be involuntary, it is not surprising . . . ."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 96-4242

JAMES BRAXTON,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of West Virginia, at Beckley.

Elizabeth V. Hallanan, District Judge.

(CR-95-175)

Argued: April 8, 1997

Decided: May 6, 1997

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER,

HALL, MURNAGHAN, WILKINS, NIEMEYER, HAMILTON,

LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Williams wrote

the majority opinion, in which Chief Judge Wilkinson and Judges

Russell, Widener, Wilkins, Niemeyer, Hamilton, and Luttig joined.

Judge Michael wrote a concurring opinion. Judge Motz concurred in

part III of the opinion and in the judgment. Judge Hall wrote a dissenting opinion. Judge Murnaghan wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Rebecca A. Betts, United States Attorney, Charleston,

West Virginia, for Appellant. Edward Henry Weis, First Assistant
Federal Public Defender, Charleston, West Virginia, for Appellee.

ON BRIEF: Margaret A. Hickey, Assistant United States Attorney,

Charleston, West Virginia, for Appellant. Hunt L. Charach, Federal

Public Defender, Charleston, West Virginia, for Appellee.

_________________________________________________________________

OPINION

WILLIAMS, Circuit Judge:

James Braxton purchased twenty-nine guns within the span of eight

weeks in late 1993. In July 1994, after learning of Braxton's series of

gun purchases, the Bureau of Alcohol, Tobacco & Firearms (ATF)

initiated an investigation. In August 1994, ATF Special Agent Kay

Poynter and West Virginia State Trooper Tom Ballard interviewed

Braxton about the gun purchases. The interview, which took place

around the kitchen table in Braxton's mother's home, lasted about an

hour. During the interview, Braxton made what amounted to a confession. Braxton subsequently was indicted by a grand jury sitting in

Charleston, West Virginia, on seven counts of knowingly making

false statements in connection with the purchase of firearms in violation of 18 U.S.C.A. § 924(a)(1)(A) (West Supp. 1997). Prior to trial,

he moved to suppress the statement he made during the interview

with Agent Poynter and Trooper Ballard. The district court granted

Braxton's motion, determining that the statement was involuntary and

ordering that it be suppressed. We granted en banc review of this case

to consider the Government's appeal of the district court's order. For

the reasons that follow, we hold that Braxton's statement was voluntary and that the district court erred in suppressing it. Accordingly, we

reverse.

I.

Through the receipt of several firearms forms, ATF agents discovered that Braxton had purchased multiple firearms. ATF Special

Agent Kay Poynter attempted to locate Braxton so that she could

question him about the purchases. After failing to locate him, she

asked West Virginia State Trooper Tom Ballard to assist her. Ballard

contacted Braxton on August 4, 1994, told Braxton that he and an

 2
ATF agent wanted to talk with him about his firearms purchases, and

asked Braxton if he would meet them at the local police station. Braxton declined to meet them at the police station, but suggested that they

meet the next day at "his mom's house," where he lived.

Arriving at Braxton's mother's home for the interview, the law

enforcement officers displayed their badges to Braxton and explained

that they "needed" to talk to him about his firearm purchases. Braxton

permitted them to enter the home and invited them to sit at the kitchen

table. Braxton's mother's boyfriend was initially present in the home

and shortly after he left, Braxton's sister arrived. The officers did not

inform Braxton of his right to remain silent, nor did they tell him that

he was required to answer their questions. During the interview, Braxton admitted that he had purchased firearms for a third party. He also

complied with the officers' request that he provide them with a picture of himself.

The district court enunciated three independent rationales for finding that Braxton's statement should be suppressed as involuntary.

First, the district court held that the confession was involuntary

because Agent Poynter and Trooper Ballard told Braxton that they

"needed" to talk to him, rather than that they "would like" to talk to

him. As support for this holding, the district court determined that

Braxton's "comment that he felt intimidated in the presence of the

two law enforcement officers was a credible statement." (J.A. at 160.)

Second, the district court found that Trooper Ballard told Braxton

"that he was not `coming clean' and that he could face five years jail

time as a result." (J.A. at 161.) The district court construed this statement to be both a threat and an implied promise, and concluded that

the Trooper's statement rendered Braxton's confession involuntary.

Finally, the district court held that the confession was involuntary

because Agent Poynter and Trooper Ballard failed "to advise [Braxton] as to why they `needed' to question him or tell him of the possible consequences he faced as a result of answering their questions."

(J.A. at 161.) Although the district court acknowledged that Braxton

was not in custody, the court nevertheless concluded that his statement was involuntary.

II.

The admissibility of Braxton's statement turns on whether the

statement was voluntary under the Fifth Amendment which guaran-

 3
tees that "[n]o person . . . shall be compelled in any criminal case to

be a witness against himself . . . without due process of law." U.S.

Const. amend. V; accord Malloy v. Hogan, 378 U.S. 1, 7 (1964)

(holding that when "a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion

of the Fifth Amendment to the [C]onstitution of the United States

commanding that no person `shall be compelled in any criminal case

to be a witness against himself'" (quoting Bram v. United States, 168

U.S. 532, 542 (1897))). A statement is involuntary under the Fifth

Amendment only if it is "involuntary" within the meaning of the Due

Process Clause. See Oregon v. Elstad, 470 U.S. 298, 304 (1985) (citing Haynes v. Washington, 373 U.S. 503 (1963); Chambers v.

Florida, 309 U.S. 227 (1940)). The test for determining whether a

statement is voluntary under the Due Process Clause"is whether the

confession was `extracted by any sort of threats or violence, [or]

obtained by any direct or implied promises, however slight, [or] by

the exertion of any improper influence.'" Hutto v. Ross, 429 U.S. 28,

30 (1976) (alterations in original) (quoting Bram, 168 U.S. at 542-43).

In Colorado v. Connelly, 479 U.S. 157 (1986), the Supreme Court

held that "coercive police activity is a necessary predicate to the finding that a confession is not `voluntary' within the meaning of the Due

Process Clause." Id. at 167.

The mere existence of threats, violence, implied promises,

improper influence, or other coercive police activity, however, does

not automatically render a confession involuntary. The proper inquiry

"is whether the defendant's will has been `overborne' or his `capacity

for self-determination critically impaired.'" United States v. Pelton,

835 F.2d 1067, 1071 (4th Cir. 1987) (quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 225 (1973)). Any statement given freely

and voluntarily without any compelling influences is admissible in

evidence. See Miranda v. Arizona, 384 U.S. 436, 478 (1966). The

Government bears the burden of proving by a preponderance of the

evidence that the statement was voluntary. See Lego v. Twomey, 404

U.S. 477, 489 (1972).

To determine whether a defendant's will has been overborne or his

capacity for self-determination critically impaired, courts must consider "the `totality of the circumstances,' including the characteristics

of the defendant, the setting of the interview, and the details of the

 4
interrogation." Pelton, 835 F.2d at 1071 (quoting United States v.

Wertz, 625 F.2d 1128, 1134 (4th Cir. 1980)); accord Ferguson v.

Boyd, 566 F.2d 873, 877 (4th Cir. 1977) (per curiam) (holding that

"a finding of coercion and involuntariness must be based upon a careful consideration of the totality of the circumstances" (citing

Schneckloth, 412 U.S. at 226)); see also Haynes, 373 U.S. at 513-14

(noting that appellate court must review the totality of circumstances

surrounding the statement). On review, "[a]n appellate court must

make an independent determination on the issue of voluntariness,"

while accepting "the district court's findings of fact on the circumstances surrounding the confession . . . unless clearly erroneous."

Pelton, 835 F.2d at 1072 (citations omitted). We address in turn each

of the district court's three rationales for suppressing Braxton's statement.

A.

First, the district court erred in determining that the officers unlawfully interrogated Braxton because they told him when they arrived

at his mother's home "that they `needed' to ask him some questions,

rather than saying they `would like' to ask him some questions,

because of the insinuation that if they `needed to ask,' [Braxton]

`needed to answer.'" (J.A. at 160.) The officers' use of the colloquial

phrase "we need to talk to you" simply does not constitute coercive

police conduct. The district court's determination that the statement

obligated Braxton to answer their questions is unwarranted. There is

absolutely no evidence that the officers told Braxton that he was obligated to speak with them. Indeed, the district court itself expressly

determined that the officers did not tell Braxton that he was required

to answer their questions.

The district court also stated that it "observed [Braxton's] demeanor while he was testifying and concluded that his comment that he

felt intimidated in the presence of the two law enforcement officers

was a credible statement." (J.A. at 160.) Although we usually decline

to overturn a district court's factual determination founded on a witness's demeanor and credibility, see United States v. Locklear, 829

F.2d 1314, 1317 (4th Cir. 1987), we attach little significance to Braxton's testimony that he felt intimidated in the presence of Poynter and

Ballard. Subsequent testimony by an accused about his prior subjec-

 5
tive mental impressions and reactions must be carefully scrutinized,

as such testimony is "always influenced by [his] self-interest." Wertz,

625 F.2d at 1136 (citing United States v. Robertson, 582 F.2d 1356,

1366-67 (5th Cir. 1978) (en banc)). Here, there is no evidence in the

record -- other than Braxton's self-serving testimony -- to establish

that the officers were so intimidating and overpowering that Braxton's will to resist was overcome. Indeed, it would be hard to imagine

a more routine, benign, and noncoercive investigatory scenario: Braxton was not under arrest, the pre-arranged interview took place in his

mother's home with others present, the interview lasted only an hour,

Braxton appeared at all times to be acting cooperatively and voluntarily, and he was not taken into custody even after the interview.

B.

Second, the district court erred in determining that Trooper Ballard's "you're not coming clean" statement constituted coercive police

conduct that rendered the confession involuntary. In coming to this

conclusion, the district court relied exclusively on Braxton's testimony on the subject, which consisted entirely of the following:

Officer Ballard said if -- he stated, "If you're not coming

clean, you can, you can get five, you know, you can do five

years because you're not coming clean." He kept on saying,

"You're not coming clean, you're not coming clean."

(J.A. at 120.) Based on this testimony, the district court held that

Trooper Ballard's statement to Braxton that he could face five years

in jail was both a threat and an implied promise.

The Government argues

that informing a suspect that he faces jail time or a reference

to the maximum penalty for the offense does not render a

confession involuntary. See, e.g., United States v. Sablotny,

21 F.3d 747, 752-53 (7th Cir. 1994) (suspect threatened with

specter of jail); United States v. Mendoza-Cecelia, 963 F.2d

1467, 1475 (11th Cir. 1992) (suspect was advised that he

faced ten years in jail). A suggestion to [a] defendant that

he "come clean" is more truthful than coercive.

 6
(Appellant's Br. at 8.) We have previously stated that "`a law enforcement officer may properly tell the truth to the accused.'" Pelton, 835

F.2d at 1072 (quoting United States v. Williams, 479 F.2d 1138, 1140

(4th Cir. 1973)). Indeed, "[t]ruthful statements about [the defendant's]

predicament are not the type of `coercion' that threatens to render a

statement involuntary." Id. at 1073. At the time of the interview,

Braxton was being investigated for making a false statement on a firearms record. The maximum statutory penalty for making a false statement on a firearms record is, as Trooper Ballard correctly stated, five

years. See 18 U.S.C.A. § 924(a)(1)(A) (West Supp. 1997).

Braxton contends that Trooper Ballard's statement "that you can do

five years because you're not coming clean" was not a truthful statement because he presently faces five years because he did "come

clean," i.e., because he confessed to making false statements on firearms records, and, as a result, was indicted. Even if Trooper Ballard's

statement was not an accurate appraisal of the potential consequences

of making a false statement on a firearms record, it was a truthful

statement about the potential consequences of making a false statement to law enforcement officers during an investigatory interview.

See 18 U.S.C.A. § 1001 (West Supp. 1997) (stating that maximum

statutory penalty for making false statements is five years). Admonishing a suspect to tell the truth during an investigatory interview by

informing him of the statutory penalty under 18 U.S.C.A. § 1001 for

making false statements does not constitute coercive police conduct

rendering a statement involuntary. See Rivers v. United States, 400

F.2d 935, 943 (5th Cir. 1968) (holding that postal inspector's reference to 18 U.S.C.A. § 1001 during a custodial interview was not coercive but "merely emphasized that if Appellant was going to say

anything, he had best tell the truth"). Neither Poynter nor Ballard intimated to Braxton that he had a duty to speak, only that if he spoke

he was required to do so truthfully. As the record reveals, Trooper

Ballard believed that Braxton was not speaking truthfully; in other

words, that he was not "coming clean."

Braxton argues that whether construed as a reference to the fiveyear penalty for making false statements on a firearms record, or as

a reference to the five-year penalty for making false statements to law

enforcement officers during an investigatory interview, Trooper Ballard's "coming clean" statement was misleading because is was not

 7
"the whole truth." Ballard's statement was not the "whole truth,"

Braxton contends, because, after admonishing Braxton to "come

clean," Ballard failed to inform Braxton that he had the right, under

the Fifth Amendment, to refuse to speak. Whenever a law enforcement officer suggests to a suspect that he tell the truth or face consequences, Braxton argues, he must also inform the suspect that he has

the right to remain silent. Because Trooper Ballard failed to give such

a warning, Braxton contends, the statement was coercive and rendered Braxton's confession involuntary.

Braxton's argument is far-reaching. It would, in effect, require

Miranda warnings in all investigatory scenarios-- whether custodial

or noncustodial. We decline to extend the reach of Miranda so far. "In

order for Miranda warnings to be necessary, the defendant must be

in a custodial situation, and the statements must be made while the

defendant is being interrogated." United States v. Wright, 991 F.2d

1182, 1186 (4th Cir. 1993); see also Miranda v. Arizona, 384 U.S.

436, 444 (1966) ("By custodial interrogation, we mean questioning

initiated by law enforcement officers after a person has been taken

into custody or otherwise deprived of his freedom of action in any

significant way."). The Supreme Court has "stressed that it was the

custodial nature of the interrogation which triggered the necessity . . .

of its Miranda holding." Beckwith v. United States, 425 U.S. 341, 346

(1976); accord United States v. Pelton, 835 F.2d 1067, 1072 (4th Cir.

1987) (stating that Miranda warnings are not required in noncustodial

interrogations). Here, it is not disputed that Braxton was not in custody when he made the inculpatory statement to Agent Poynter and

Trooper Ballard. At the interview, Braxton freely consented to answer

the officers' questions. He was not subjected to coercive police

action, either in word or deed. He was at liberty to terminate the discussion and ask the officers to leave at any time. The interview took

place on his turf, at his mother's home. Accordingly, Trooper Ballard's statement was not a threat that rendered Braxton's confession

involuntary.

The district court also found that Trooper Ballard's statement constituted an implied promise that "if you `come clean,' you will not be

prosecuted." Specifically, the district court stated that Braxton "could

easily have inferred from the statement that if he did `come clean' he

would not face jail time and that answering the questions could be to

 8
his benefit." (J.A. at 161.) Again, we disagree. A law enforcement

officer's admonishment to a suspect during an investigatory interview

to tell the truth or face consequences is simply not an implied promise

of non-prosecution. The district court clearly erred in drawing that

implication from Trooper Ballard's statement.

Even if the district court did not err in determining that Trooper

Ballard's statement was both a threat and an implied promise, the

court erred in concluding that the mere existence of the threat and

implied promise rendered Braxton's confession involuntary. The existence of a threat or an implied promise does not automatically render

a confession involuntary. The proper inquiry is whether the confession was "extracted" by the threats or implied promises, "however

slight." See Hutto, 429 U.S. at 30. For a threat or an implied promise

to invalidate a defendant's statement, "the pressure, in whatever form

[or `however slight'], [must be] sufficient to cause the petitioner's

will to be overborne and his capacity for self-determination to be critically impaired." Ferguson, 566 F.2d at 877 (citing Columbe v.

Connecticut, 367 U.S. 568, 602 (1961)); accord Pelton, 835 F.2d at

1071.

Here, considering the totality of the circumstances, Trooper Ballard's statement to Braxton that he could face five years in jail was

neither a threat that overpowered Braxton's will to resist, nor an

implied promise that he could not refuse. Cf. United States v.

Sablotny, 21 F.3d 747, 752 (7th Cir. 1994) (holding that police detective's statement to defendant that "she would probably go to jail" if

she did not cooperate did not render her confession involuntary);

United States v. Mendoza-Cecelia, 963 F.2d 1467, 1475 (11th Cir.

1992) (holding that Customs official's statement to defendant that "if

you don't cooperate with us, ten years can be a long time in jail" did

not render defendant's confession involuntary). Even if the statement

influenced Braxton's decision to confess, the voluntariness of the confession "is not . . . `to be equated with the absolute absence of intimidation,' for under this test virtually no statement would be voluntary."

Pelton, 835 F.2d at 1072 (quoting Wertz, 625 F.2d at 1134).

 9
C.

Third, the district court erred in determining that Braxton's confession was involuntary because the officers failed to tell him of the

charges they were investigating. Although Braxton knew that the officers wanted to discuss his series of gun purchases and that Poynter

was an ATF agent, he apparently was not aware of all of the possible

offenses related to the purchases. While courts may consider whether

the defendant knew the nature of the offense under investigation in

determining voluntariness, see 18 U.S.C.A. § 3501(b)(2) (West 1985),

Agent Poynter and Trooper Ballard had no duty to advise Braxton of

the identity of the specific offense under investigation. See United

States v. Olmstead, 698 F.2d 224, 226-27 (4th Cir. 1983) (holding that

law enforcement officers have no duty to inform suspects of the

nature of the crime being investigated unless the suspect asks and failing to tell would be misleading); United States v. Okwumabua, 828

F.2d 950, 953 (2d Cir. 1987) ("Silence by a government agent can

only be equated with an affirmative misrepresentation where there is

a legal or moral duty to speak or where an inquiry left unanswered

would be intentionally misleading."); see also Colorado v. Spring,

479 U.S. 564, 577 (1987) (holding in custodial interrogation case that

"a suspect's awareness of all the possible subjects of questioning in

advance of interrogation is not relevant to determining whether the

suspect voluntarily, knowingly, and intelligently waived his Fifth

Amendment privilege" (emphasis added)).* We would impose a substantial burden on law enforcement operations if we required investigating officers in noncustodial, investigatory interviews to inform

suspects of every potential theory of liability related to the suspect's

conduct at issue. In light of the fact that such suspects may simply

_________________________________________________________________

* Moreover, although courts may consider whether the defendant was

advised of his Miranda rights in determining voluntariness, see 18

U.S.C.A. § 3501(b)(3) (West 1985), Agent Poynter and Trooper Ballard

had no duty to advise Braxton of his right against self-incrimination. The

interview with Braxton was noncustodial. See Miranda v. Arizona, 384

U.S. 436, 477-78 (1966); United States v. Pelton, 835 F.2d 1067, 1072

(4th Cir. 1987) (noting that in noncustodial interrogations, "the absence

of Miranda warnings is one `factor' to be considered in assessing the

voluntariness of a confession"); United States v. Locklear, 829 F.2d

1314, 1316 (4th Cir. 1987) (agent's failure to give defendant Miranda

warnings during noncustodial interrogation "does not require that [the

defendant's] remarks be suppressed").

 10
refuse to answer questions and then seek legal counsel, we are loath

to impose such a burdensome duty on investigating officers.

After thoroughly reviewing the circumstances surrounding the

interview at Braxton's mother's house, we can find no evidence that

Agent Poynter or Trooper Ballard used any technique or method that

would offend due process. The officers did not harm or threaten to

harm Braxton if he did not answer their questions. See, e.g., Beecher

v. Alabama, 389 U.S. 35, 36 (1967) (statement obtained after police

held a gun to suspect's head); Payne v. Arkansas, 356 U.S. 560, 564-

65 (1958) (statement obtained after police threatened to turn suspect

over to an angry mob); Brown v. Mississippi, 297 U.S. 278, 281-82

(1936) (statement obtained after police whipped suspect). The officers

did not deprive Braxton of anything. See, e.g., Malinski v. New York,

324 U.S. 401, 403, 406-07 (1945) (statement obtained after forcing

suspect to remain naked); Reck v. Pate, 367 U.S. 433, 441 (1961)

(statement obtained after depriving suspect of adequate food, sleep,

and contact with family); Brooks v. Florida, 389 U.S. 413, 414-15

(1967) (statement obtained after depriving suspect of food and keeping suspect naked in a small cell). The officers did not subject Braxton to a lengthy period of interrogation or isolation. See, e.g., Ashcraft

v. Tennessee, 322 U.S. 143, 154 (1944) (statement obtained after

interrogating suspect virtually nonstop for thirty-six hours); Davis v.

North Carolina, 384 U.S. 737, 752 (1966) (statement obtained after

isolating suspect for several weeks). And, as we have explained, the

officers did not try to deceive Braxton. See, e.g., Spano v. New York,

360 U.S. 315, 323 (1959) (statement obtained after suspect erroneously told that a friend, who had three children and a pregnant wife,

would lose his job); Leyra v. Denno, 347 U.S. 556, 559-61 (1954)

(statement obtained after hours with psychiatrist trained in hypnosis,

although suspect erroneously told that doctor was a general practitioner). In short, we cannot find the kind of coercive police conduct

that is necessary to render Braxton's statement involuntary under the

Due Process Clause. The district court therefore erred under each of

its stated rationales in determining that Braxton's confession was

involuntary.

III.

In addition to erring under all three of these specific rationales, the

district court also erred by failing to consider the "totality of the cir-

 11
cumstances." Cf. United States v. Dodier, 630 F.2d 232, 236 (4th Cir.

1980) (stating that "[t]he district court's resolution of the credibility

issues are fully supported by the record," but holding that the court's

"conclusion that the totality of the circumstances proved the confession involuntary . . . was clearly erroneous"). Specifically, the district

court failed to sufficiently consider "the characteristics of the defendant, the setting of the interview, and the details of the interrogation."

United States v. Pelton, 835 F.2d 1067, 1071 (4th Cir. 1987). Braxton

was interviewed by law enforcement officers around the kitchen table

in his mother's home. During the interview, at least one family member and one family friend were permitted to come and go freely. Cf.

United States v. Olmstead, 698 F.2d 224, 227 (4th Cir. 1983) (confession not involuntary where "interview was conducted in [the defendant's] home in the presence of his wife"); United States v. Wertz,

625 F.2d 1128, 1134 (4th Cir. 1980) (confession not involuntary

where defendant made statement "in the very area where he lived and

had many friends and relatives who quickly gathered around him").

He had previously agreed to the meeting, and he permitted the officers to enter the home after they told him they needed to talk to him

about his firearm purchases. The district court acknowledged that the

interview was not custodial and that Braxton was never told that he

was required to answer the officers' questions. Furthermore, Braxton

was not questioned for an extended period, nor was he subject to

incommunicado interrogation. In its entirety, the interview lasted

approximately one hour. Cf. United States v. Locklear, 829 F.2d 1314,

1317 (4th Cir. 1987) (confession not involuntary where "the interviews were not an exercise in endurance" and"[t]he longest meeting

lasted approximately two hours"). Finally, there is nothing in the

record -- such as youth, diminished mental capacity, or intoxication

-- to suggest that Braxton was especially susceptible to police coercion. Cf. Pelton, 835 F.2d at 1073-74 (defendant's personal characteristics did not support his claim that he was coerced into confessing);

Locklear, 829 F.2d at 1317 (confession not involuntary where defendant's "perception of events was at no time impaired by the influence

of drugs or alcohol"); see also United States v. Seni, 662 F.2d 277,

282 (4th Cir. 1981) (holding in custodial interrogation case that

defendant's statement was voluntary where defendant did "not allege

that a lack of education, maturity, or intelligence deprived him of the

ability to choose to remain silent").

At oral argument, instead of considering the totality of the circumstances, counsel for Braxton focussed on Trooper Ballard's single

 12
statement to Braxton that he was not "coming clean." He argued that

Trooper Ballard's "coming clean" statement, standing alone,

amounted to government coercion sufficient to render Braxton's confession involuntary. In applying the totality of the circumstances test,

however, courts should not focus on a single factor in determining

voluntariness. In Seni, 662 F.2d at 277, a custodial interrogation case,

we stated that voluntariness is "to be determined from `the totality of

all the surrounding circumstances,'" and held that neither the drawing

of a gun by the interrogating officer, nor the handcuffing of the confessor "establish involuntariness in and of themselves." Id. at 281-82

(quotation and citations omitted). Here, Trooper Ballard's "coming

clean" statement is much less coercive than drawing a gun on the suspect or handcuffing him -- practices that we held in Seni did not, in

and of themselves, establish that the confession was involuntary. Id.

Ergo, Trooper Ballard's statement, without more, is simply an insufficient basis for affirming the suppression of Braxton's confession.

IV.

Because the police activity used to elicit an incriminating statement must

be coercive before a statement will be held to be involuntary, it is not

surprising that "very few incriminating statements, custodial or otherwise, 

are held to be involuntary." United States v. Rutledge, 900 F.2d 1127,

1129 (7th Cir. 1990). We find that this case is no exception. This is

not a case where law enforcement officers "went to extraordinary

lengths to extract from [the defendant] a confession by psychological

means." Ferguson v. Boyd, 566 F.2d 873, 877 (4th Cir. 1977) (per

curiam). Braxton's incriminating statement was elicited without the

aid of any coercive conduct on the part of Agent Poynter and Trooper

Ballard. Furthermore, nothing in the record so much as suggests that

Braxton's "will was overborne." Reck v. Pate, 367 U.S. 433, 440

(1961). As a result, Braxton's statement was voluntary under the Fifth

Amendment. Accordingly, the order of the district court suppressing

the statement is reversed and the case is remanded to the district court

for proceedings consistent with this opinion.

REVERSED AND REMANDED

MICHAEL, Circuit Judge, concurring in the judgment:

I concur in the judgment because I do not believe that the totality

of the circumstances reveals that Braxton's will was overborne or that

 13
his capacity for self-determination was critically impaired. See United

States v. Pelton, 835 F.2d 1067, 1071 (4th Cir. 1987).

HALL, Circuit Judge, dissenting:

I join Judge Murnaghan's dissent. I write separately only to emphasize that, in my view, the trooper's "come clean or you'll get five

years" threat/promise was plainly false. Braxton had no obligation to

say a single word to the authorities, let alone to"come clean," and he

could not have been punished for it had he silently shown his inquisitors to the door.

MURNAGHAN, Circuit Judge, dissenting:

I respectfully dissent from the majority's opinion. Trooper Ballard's threat that Braxton would face five years in jail if he did not

"come clean" and confess and his implied promise that Braxton would

not face jail time if he did confess were clearly sufficient "to cause

[Braxton's] will to be overborne and his capacity for selfdetermination to be critically impaired." Ferguson v. Boyd, 566 F.2d

873, 877 (4th Cir. 1977).

I.

The Supreme Court has held that when "a question arises whether

a confession is incompetent because not voluntary, the issue is controlled by that portion of the [F]ifth [A]mendment to the

[C]onstitution of the United States commanding that no person `shall

be compelled in any criminal case to be a witness against himself.'"

Bram v. United States, 168 U.S. 532, 542 (1897). The constitutional

inquiry is not whether the conduct of the officers in obtaining the confession was shocking, but whether the confession was "`free and voluntary.'" Malloy v. Hogan, 378 U.S. 1, 7 (1964) (quoting Bram, 168

U.S. at 542). More specifically, the test for determining whether a

statement is voluntary is "whether the confession was `extracted by

any sort of threats or violence, [or] obtained by any direct or implied

promises, however slight, [or] by the exertion of any improper influence.'" Hutto v. Ross, 429 U.S. 28, 30 (1976) (alterations in original)

(quoting Bram, 168 U.S. at 542-43). The proper inquiry focuses on

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whether, as a matter of law, under the totality of the circumstances,

"the defendant's will has been `overborne' or his `capacity for selfdetermination critically impaired.'" United States v. Pelton, 835 F.2d

1067, 1071 (4th Cir. 1987) (quoting Schneckloth v. Bustamonte, 412

U.S. 218, 225 (1973)).

I disagree with the majority opinion's application of those principles in the instant case. Part II.B. of the majority opinion holds that

Trooper Ballard's "coming clean" statement did not constitute coercive police conduct. The majority points out that a law-enforcement

officer may lawfully tell the defendant the truth. The majority then

concludes that Trooper Ballard's statement was not a coercive threat

because he merely told Braxton the "truth," namely, that he could

serve five years in jail either for making a false statement on a firearms record, see 18 U.S.C.A. § 924(a)(1)(A) (West Supp. 1997), or

for making a false statement during an investigatory interview, see 18

U.S.C.A. § 1001 (West Supp. 1997).

It is far from clear, however, that Trooper Ballard's statement that

Braxton could "do five years because [he was] not coming clean"

referred to either § 924(a)(1)(A) or § 1001. Indeed, the officers did

not tell Braxton, nor was Braxton aware, that he was under investigation for making false statements on a firearms record, in violation of

§ 924(a)(1)(A). The district court reached a plausible conclusion that

Trooper Ballard's statement constituted a threat that Braxton would

face five years in jail if he did not confess.

Moreover, the district court also reached a plausible conclusion that

the statement contained an implied promise that Braxton would not

face the same penalty if he did confess. Braxton easily could have

inferred from Trooper Ballard's statement that he would not face jail

time if he did "come clean" and confess and that answering the questions therefore would be to his benefit. As stated above, the Supreme

Court has clearly held that "implied promises, however slight," render

a confession involuntary. Ross, 429 U.S. at 30 (emphasis added)

(quoting Bram, 168 U.S. at 542-43).

I recognize that we must consider the totality of the circumstances

surrounding Trooper Ballard's statement. Nonetheless, even under the

totality of the circumstances, I would still hold that Braxton's confes-

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sion was involuntary. An officer's threat that the defendant will serve

five years in jail if he does not confess and an officer's implied promise that the defendant will not serve any time if he does confess

clearly are "sufficient to cause the [defendant's] will to be overborne

and his capacity for self-determination to be critically impaired."

Ferguson, 566 F.2d at 877. Trooper Ballard's threat and implied

promise were sufficiently coercive to render Braxton's confession

involuntary, even though Trooper Ballard threatened Braxton at home

rather than in a police station.

II.

Accordingly, I would affirm the district court's judgment. I dissent.

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