Monday, March 12th, 2018

De Novo Review of Demeanor?

Last week, the Second Circuit reversed a decision suppressing a defendant’s incriminating, videotaped statements to a DEA agent in a case involving Fentanyl distribution resulting in death. See United States v. Haak, No. 16-3876 (Raggi, Hall, Carney) (appeal from WDNY), opinion available here. The substance of the decision is fact-specific and favors the government.  Interestingly, however, the Court’s approach to reviewing the videotaped interview could be advantageous to defendants in future cases.

Of course, when assessing whether a defendant’s statements to a law enforcement agent were voluntary, appellate courts typically defer to the district court’s assessment of the agent’s demeanor. Here, the panel accorded no such deference. Instead, without citing legal authority for the proposition, the panel categorically asserted that: “Because the . . . interview was video-recorded, this case presents no disputes of fact as to the actions taken, words spoken, or demeanor.”  Slip op. at 16. The panel then cited a Sixth Circuit case for the proposition that an appellate court reviews de novo the inferences that a district court makes from a recorded conversation. Id. at 16 (citing United States v. Crumpton, 824 F.3d 593,604, 607 (6th Cir. 2016)). Presumably, such inferences would include the district court’s interpretation of the interviewing agent’s demeanor. The panel seems to confirm this reading with its analysis of whether the defendant’s statements were voluntary in this case.

On the merits, the panel concluded that the totality of the circumstances did not show that the defendant’s will was overborne by the agent conducting his interview. In doing so, the panel echoed the district court’s finding that “the interview was conducted in a ‘conversational’ and polite manner throughout.” Id. at 29. It disagreed with the district court’s determination, however, that the agent falsely promised the defendant immunity if he continued to speak during the interview. The statements which the district court construed as making this offer, the panel held, “are more reasonably understood in context to communicate that the police were not then planning to arrest Haak because their focus was on higher-placed persons in the fentanyl-laced heroin distribution chain.” Id. at 30. The panel thus reversed, without a finding of clear error, the district court’s context-sensitive, demeanor-contingent assessment of what a law enforcement officer was communicating in the course of an interview.

Practitioners should take note of how the Haak panel manipulates the de novo standard of review for mixed questions of law and fact. In this case, the government benefited from the panel’s lack of deference to the district court’s assessment of a law enforcement officer’s demeanor. In the vast majority of appellate cases involving a videotaped interrogation, however, it would seem that such lack of deference would cut the other way. Haak may therefore offer an unexpected gift to defendants.

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