# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued January 28, 2009

Decided February 3, 2009

Before

WILLIAM J. BAUER, Circuit Judge

KENNETH F. RIPPLE, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 08

‐ 1365

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

MAURICE WILBON,

Defendant

‐ Appellant. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 06 CR 935

‐ 1

John W. Darrah,

Judge

.

ORDER

Maurice Wilbon was charged with robbing a bank. See 18 U.S.C. § 2113(a). He

moved to suppress his confession as involuntary due to the influence of cocaine and

coercive police tactics. The district court denied the motion, and a jury found Mr. Wilbon

guilty. He was sentenced to 225 months’ imprisonment. On appeal Mr. Wilbon challenges

only the denial of his motion to suppress. Because the district court correctly denied the

motion, we affirm.

In December 2005 three men robbed a First Bank branch in Chicago. FBI Agent

Daniel McCune, who was investigating the bank robbery, believed Wilbon was one of the

robbers. So while Wilbon was incarcerated for an unrelated crime, Agent McCune 

### NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 08

‐ 1365 Page 2

transferred a confidential informant named “Warren” into the same prison. Ultimately, the

FBI paid Warren approximately $7,000 for his assistance in obtaining information from

Wilbon.

After both men were released from custody, Warren kept in touch with Mr. Wilbon

and recorded several of their conversations. These conversations revealed that Mr. Wilbon

intended to plan and participate in future bank robberies. He also asked Warren for money

that he used to buy crack. Warren provided him with $143 over the course of two weeks.

Mr. Wilbon claims that he smoked crack every day even before receiving money from

Warren. The FBI agents were aware that Mr. Wilbon was addicted to crack and that he was

using the money from Warren to buy crack.

On December 12, 2006, the day that Mr. Wilbon would eventually confess to the First

Bank robbery, Mr. Wilbon and Warren started driving (with Warren at the wheel) from

Chicago to Wisconsin to case another bank. Mr. Wilbon claims to have smoked crack six or

seven times earlier that day, including five minutes before entering the car at 4:24 p.m.

Agent McCune intercepted Warren and Mr. Wilbon when they stopped at a restaurant in

Wilmette for dinner. At 5:55 p.m., as Mr. Wilbon exited the restaurant’s restroom, Agent

McCune approached him and identified himself. During a pat

‐ down, Agent McCune

recovered a metal pipe from Mr. Wilbon’s pocket. Mr. Wilbon claims that the item was a

crack

‐ pipe, but the agent did not recognize it or confiscate it. Agent McCune and another

agent talked to Mr. Wilbon for about twenty minutes in one of the restaurant booths, and

then Mr. Wilbon agreed to accompany them back to the FBI office.

But, once outside of the restaurant, Mr. Wilbon said he wanted to go home.

Although Agent McCune said that was “fine” and that he was not charged or under arrest,

Mr. Wilbon changed his mind again. Mr. Wilbon explained that he had no money and no

way to get home from Wilmette. The court later found that he had received money from

Warren earlier that evening and his statement to the contrary was materially false.

The agents drove Mr. Wilbon to the FBI office in Chicago, a forty

‐ five

‐ minute drive,

where they advised him of his Miranda rights and again told him he was free to leave. At

7:55 p.m., he signed an Advice of Rights form, and then discussed the First Bank robbery.

He confessed to his involvement in the robbery, but denied involvement in other robberies

and refused to write out or sign a statement. During the interview, Mr. Wilbon freely used

the bathroom, took two smoke breaks and called his mother twice. The agents later testified

that they did not see any signs that Mr. Wilbon was under the influence of crack cocaine, or

anything else, for that matter. His speech was not slurred and he was not acting erratically.

At the end of the interview, and based on the confession, the agents arrested Mr. Wilbon for

the First Bank robbery.No. 08

‐ 1365 Page 3

In his motion to suppress the confession, Mr. Wilbon argued that his statements on

December 12 were influenced by a lengthy crack cocaine binge and were therefore

involuntary. He further claimed that, by reimbursing Warren for the $143, the FBI had

extracted information from Mr. Wilbon by financing his drug habit. At the hearing on Mr.

Wilbon’s motion, the government introduced reports from the National Institute on Drug

Abuse (NIDA) and the United State Sentencing Commission’s Special Report to Congress

on Cocaine and Federal Sentencing Policy. The district court considered these reports,

noting that they indicate that the high from smoking crack cocaine lasts only five to ten

minutes and that the “physiological and psychotropic effects of inhaled cocaine are

sustained for approximately thirty minutes after peak effects are attained.” The court found

that Mr. Wilbon last smoked crack shortly before 4:24 p.m., over an hour and a half before

his restaurant interview and three and half hours before arriving at the FBI office. The

government also introduced video and audio recordings of Mr. Wilbon and Warren’s drive

on December 12.

The district court denied the motion to suppress and held, based on the agents’

testimony, that Mr. Wilbon was not intoxicated at the restaurant or the FBI office; the FBI

tactics were not coercive; and there was no other reason to question the voluntariness of the

confession. The court noted that in surveillance videotapes from the night of the confession,

Mr. Wilbon’s demeanor was no different than that he displayed while testifying. After a

two

‐ day trial, a jury convicted Mr. Wilbon of bank robbery. See 18 U.S.C. § 2113(a).

On appeal, Wilbon argues that the district court should have suppressed his

confession as involuntary. A confession is involuntary only where it was obtained through

police coercion or overreaching that prevented the accused from exercising his free will. See

Dickerson v. United States

, 530 U.S. 428, 434 (2000); Conner v. McBride

, 375 F.3d 643, 651 (7th

Cir. 2004). Intoxication, as asserted by Wilbon, is only relevant to the voluntariness inquiry

if law enforcement officers reasonably should have known of its existence. United States v.

LeShore

, 543 F.3d 935, 940 (7th Cir. 2008). We review de novo the question whether a

confession was voluntary and review factual determinations for clear error. Id. at 940

‐ 41.

First, Mr. Wilbon argues the court clearly erred in finding that he was not under the

influence of crack cocaine at the time of his confession. See LeShore

, 543 F.3d at 940. He does

not dispute the court’s time line of events but rather asserts that the court misread various

reports about the duration of cocaine’s effects. Mr. Wilbon argues that the court should

have considered the NIDA report’s discussion of the long

‐ term effects of cocaine, which

include losing touch with reality and auditory hallucinations, and binge usage, which can

lead to a state of increasing irritability, restlessness, and paranoia. He relies on his

statements at the suppression hearing that the events “didn’t feel real” or “didn’t make

sense” to support his claim that he was intoxicated when he confessed.No. 08

‐ 1365 Page 4

The district court did not clearly error in finding that Mr. Wilbon was not under the

influence or out of touch with reality during his questioning. First, the court permissibly

relied on Agent McCune’s testimony that Mr. Wilbon appeared coherent and did not act

erratically. The court reached the same conclusion after observing audio and video

recordings of Mr. Wilbon’s conversations with Warren from that night. In fact, the

experienced district judge noted that Wilbon’s demeanor and manner of speech were the

same on the witness stand at the suppression hearing as they were in the recordings of his

behavior on the night of his interrogation. None of the short or long term adverse

consequences of cocaine use, even binge usage, described in the NIDA or Sentencing

Commission reports were observed on the evening of his interrogation. In addition, Mr.

Wilbon refused to provide a written statement during the interrogation and denied his

involvement in other robberies, showing independent thinking and free will. See United

States v. Smith

, 218 F.3d 777, 782 (7th Cir. 2000). Furthermore, Mr. Wilbon could recall all of

the events of the day of his confession at the evidentiary hearing.

Mr. Wilbon next asserts that the district court erred in ruling that the agent’s tactics

did not render his confession involuntary. He claims that the agents made him dependant

on their informant by financing his crack habit through Warren, manipulated him into

traveling to Wilmette, and coerced him by removing all his other options for getting home.

Moreover, he says the agents should have known he was high on crack after finding a crack

pipe in his pocket. Voluntariness depends on whether a confession is “the product of a

rational intellect and free will and not the result of physical abuse, psychological

intimidation, or deceptive interrogation tactics that have overcome the defendant ʹ s free

will.” United States v. Gillaum

, 372 F.3d 848, 856 (7th Cir.2004) (internal quotation omitted).

Other factors relevant to determine whether a confession was coerced include: the suspect ʹ s

age, intelligence, education, mental state; whether he received Miranda warnings; the length

and environment of the interrogation, including the suspect ʹ s access to food or a restroom;

and law enforcement’s conduct. United States v. Ross

, 510 F.3d 702, 709 (7th Cir. 2007).

We apply a totality

‐ of

‐ the

‐ circumstances test in evaluating voluntariness. Gillaum

,

372 F.3d at 856. Interrogation tactics may have a greater effect on voluntariness if the

officers reasonably should have known that Mr. Wilbon was under the influence of drugs or

alcohol. LeShore

, 543 F.3d at 940

‐ 41. But because the court did not clearly err in concluding

that Mr. Wilbon was not under the influence of cocaine, it therefore did not err in excluding

that factor from the totality

‐ of

‐ the

‐ circumstances test. See id. at 941.

The district court did not erroneously determine that Mr. Wilbon ʹ s confession was

voluntary. First, Mr. Wilbon is 42 years old, has held several jobs, and has a bachelor’s

degree. He makes no claim of mental disability or unfamiliarity with the criminal justice

system. In fact, he has at least five felony convictions in state court. Second, the officersNo. 08

‐ 1365 Page 5

told Mr. Wilbon that he wasn’t under arrest at the restaurant, and they advised him of his

Miranda rights when they arrived at the FBI office. Third, Mr. Wilbon used the bathroom

and took multiple phone and smoke breaks during the interview. Finally, even assuming

the agents provided Mr. Wilbon with cash before that evening knowing that he might spend

it on crack and then cornered him at a restaurant far from his home, the court reasonably

found that these actions did not overcome his free will at the restaurant because Mr.

Wilbon, in fact, had money to get home and was not under the influence of crack. In any

case, these tactics are not equivalent to physical punishment or deprivation of food or sleep.

See United States v. Huerta

, 239 F.3d 865, 871 (7th Cir. 2001). The court correctly found that

no other factor undermined the voluntariness of the confession. Thus, the district court did

not err in concluding that Mr. Wilbon’s confession was not coerced.

AFFIRMED.