United States of America v. Carlos Hunter

The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of*
Tennessee, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0418n.06
No. 08-3121
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CARLOS HUNTER,
Defendant-Appellant.
/
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO
BEFORE: CLAY and GIBBONS, Circuit Judges; and GREER, District Judge.*
CLAY, Circuit Judge. Following his conditional guilty plea to one count of being a felon
in possession of a firearm, Defendant Carlos Hunter (“Hunter”) appeals the district court’s order
denying his motion to suppress his confession to police officers that he possessed the rifle found in
the vehicle he was driving. On appeal, Hunter contends that his statement was involuntary, because
the police coerced him into making the statement by threatening his girlfriend with a federal gun
charge. For the reasons that follow, we AFFIRM the judgment of the district court.
BACKGROUND
I. Factual Background

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On January 1, 2006, police officers in four police cars responded to a dispatch reporting that
shots were fired near Sarvis Street in Cincinnati. The dispatch described the shooting suspect as an
African American male with long hair and tan clothing, stated that an automatic weapon may have
been involved, and referred to a silver vehicle that had been spotted at the scene. One of the arriving
officers, Sergeant Douglas Frazier (“Sergeant Frazier”), saw Hunter next to a silver car. Sergeant
Frazier saw Hunter appear to place something in the back seat of the car, and then walk away from
the vehicle toward an apartment building down the street. At the scene, Sergeant Frazier also
observed approximately twenty to thirty people, many of whom were running from the area, although
none of them was apprehended. Another officer, Thomas Finley (“Officer Finley”), handcuffed
Hunter, read Hunter his Miranda rights, and placed him in the back seat of one of the police cars.
Sergeant Frazier, looking through the window of the silver car, saw an AK-47 rifle marked with
black tape on the floor of the back seat. Sitting in the back seat of the police car, Hunter denied that
the rifle was his. The officers at the scene also recovered a revolver from the grass next to the street,
and found shell casings of bullets from a nine-millimeter, an AK-47 and a shotgun across the street
from the vehicle.
In the passenger seat of the silver car was Marquita Buck (“Buck”), who told the officers that
she was Hunter’s girlfriend. Buck was arrested and placed in a different police car from Hunter.
Officer Finley informed Buck that he had just talked to his supervisor, who believed that Buck could
be charged with a federal offense carrying a mandatory three-year minimum sentence for carrying
an AK-47. It is undisputed that Officer Finley’s statement to Buck–captured by videotape

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recording–was incorrect, as Buck could not have been charged with any federal offense for
possessing the AK-47.
Hunter and Buck were taken to the police station in the separate cars. At the station, two to
three officers questioned Hunter and Buck together in one room. Sergeant Frazier, who had been
one of the two supervising officers at the scene, reiterated to Hunter that both he and Buck could be
charged for possessing the AK-47. Sergeant Frazier also told Hunter that he was going to conduct
a gunshot residue test on Hunter to determine whether Hunter had fired any shots that day, and as
a prerequisite to administering the test, Sergeant Frazier asked Hunter if he had used fireworks
earlier in the day. When Hunter told Sergeant Frazier that he had in fact set off fireworks earlier,
Sergeant Frazier informed Hunter that the test could distinguish residue from fireworks and residue
from shooting a gun. According to Sergeant Frazier, he administered the test, and shortly thereafter,
Hunter asked to speak with him. Hunter then told him “that he didn’t want his girlfriend to go to jail
for him and that he fired the gun.” (Joint Appendix (“J.A.”) at 87.) Hunter also told Sergeant
Frazier that he had purchased the gun from a gun store for $400 earlier that day, and that he had put
the black tape on it as decoration. Officer Finley estimated that approximately three to four hours
passed from the time of Hunter’s arrest to the time he confessed, although he could not recall how
much of that time was actually spent questioning Hunter.
II. Procedural Background
On March 15, 2006, a federal grand jury indicted Hunter on one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g). The district court initially found that
Hunter was incompetent to stand trial, and committed Hunter to the custody of the state to determine

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The record is unclear as to the reason for the district court’s initial incompetency order, other1
than a reference in the court’s order that Hunter was suffering from a “mental disease or defect.”
(J.A. at 24-25.) Hunter does not challenge the court’s subsequent finding of competency on appeal.
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whether Hunter could become competent after receiving appropriate medical treatment. On May 10,
2007, the district court found Hunter competent.1
On June 18, 2007, Hunter moved to suppress evidence of his statement to Sergeant Frazier
at the police station. On August 7, 2007, the district court held a suppression hearing, at which
several of the officers testified and recounted the events as described above. Hunter did not testify.
At the suppression hearing, Officer Finley did not initially recall telling Buck that she could
face a federal charge, but after listening to the audiotape recording of his conversation with Buck
while she sat in the police car, he acknowledged that the voice on the tape informing her of a
possible federal charge was his. Officer Finley could not recall which supervisor had told him that
a federal charge against Buck was possible. Officer Finley did not know of any specific federal
crime for which Buck could have been charged; when pressed to think of a possible federal charge
against Buck on cross-examination, he suggested that Buck could perhaps have been charged with
being a felon in possession of a firearm, although he acknowledged that he never had any reason to
suspect that she was a felon. On re-direct, the government showed Officer Finley a computer-aided
dispatch printout from the night of the arrests that referred to a possible automatic weapon at the
scene, and asked Officer Finley if, from far away, the AK-47 could have looked like an automatic
weapon. Officer Finley answered that the two types of weapons were not easily distinguishable from

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Under § 922(o)(1), “it shall be unlawful for any person to transfer or possess a machinegun.”2
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a distance. On re-cross, Officer Finley admitted that he could not recall ever learning from the
dispatch that an automatic weapon might have been at the scene.
Sergeant Frazier testified that Hunter confessed “after I did the [gun-residue test] on him and
advised him what the results of that test would yield.” (J.A. at 112.) Sergeant Frazier acknowledged
that he had mentioned to Hunter the possibility of charging Buck during the interrogation at the
police station; however, he stated that he did not repeat the threat of a federal charge at the station.
Sergeant Frazier also stated that after he raised the possibility of charging Buck, he then performed
the gun residue test of Hunter, and it was only after the test that Hunter confessed. Sergeant Frazier
testified that he did not recall Hunter mentioning federal charges when he confessed.
James Burk, an agent for the Bureau of Alcohol, Tobacco and Firearms, testified for the
defense that he subsequently read in a police report that one of the police officers at the station had
overheard Hunter confessing to Sergeant Frazier, and the police officer had recalled that Hunter had
asked Sergeant Frazier if he was going to face “federal” charges because of the type of weapon he
had. (J.A. at 159.)
On September 7, 2007, the district court denied the suppression motion. The court found that
Officer Finley’s threat to charge Buck with a federal offense was not coercive, because there was
probable cause to charge Buck for carrying an AK-47 under state and municipal law, and “[t]he
officers may therefore have believed in good faith that Ms. Buck could have been charged with
unlawful possession of a machine gun in violation of 18 U.S.C. § 922(o).” (J.A. at 14-15.) The2

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court then found that Sergeant Frazier’s threat to administer a gun residue test that could distinguish
between residue from fireworks and residue from the discharge of a firearm, “rather than the threat
to charge Ms. Buck alone, triggered [Hunter’s] confession.” (J.A. at 15.) The court noted Hunter’s
“limited mental capacity”–including that Hunter was “‘mildly mentally retarded’ or ‘borderline
functioning range’”–but found that this fact was “offset somewhat by [Hunter’s] significant prior
experience with the criminal justice system.” (J.A. at 13, 14.) The district court also stated that
“[a]lthough there is double hearsay testimony Defendant was concerned the threatened charge
against Ms. Buck would be federal, the direct evidence indicates Defendant simply did not want her
to go to jail.” (J.A. at 15.)
On October 11, 2007, after the district court denied his motion to suppress, Hunter pled guilty
to being a felon in possession of a firearm, but preserved his right to appeal the district court’s denial
of his suppression motion. On January 18, 2008, the district court sentenced Hunter to 180 months
of imprisonment. Hunter timely appealed the suppression ruling.
DISCUSSION
I. Standard of Review
“On suppression issues, we review a district court’s findings of fact for clear error, but we
review all conclusions of law de novo.” United States v. Crowder, 62 F.3d 782, 785 (6th Cir. 1995).
“In determining the voluntariness of a confession, a reviewing court will not disturb the trial court’s
findings concerning specific events surrounding the confession unless clear error appears on the
record.” United States v. Wrice, 954 F.2d 406, 410-11 (6th Cir. 1992). Moreover, in reviewing a
district court’s denial of a motion to suppress an involuntary statement, this Court must view the

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evidence in the light most favorable to the government. United States v. Fowler, 535 F.3d 408, 417
(6th Cir. 2008).
II. Analysis
For a defendant’s confession to be involuntary and therefore procured in violation of the Fifth
Amendment, “coercive police activity” must have preceded the confession. Colorado v. Connelly,
479 U.S. 157, 167 (1986). “An admission is deemed to be coerced when the conduct of law
enforcement officials is such as to overbear the accused’s will to resist.” Ledbetter v. Edwards, 35
F.3d 1062, 1067 (6th Cir. 1994). “This Court has established three requirements for a finding that
a confession was involuntary due to police coercion: (i) the police activity was objectively coercive;
(ii) the coercion in question was sufficient to overbear the defendant’s will; and (iii) the alleged
police misconduct was the crucial motivating factor in the defendant’s decision to offer the
statement.” United States v. Mahan, 190 F.3d 416, 422 (6th Cir. 1999). This Court determines
whether a defendant’s statement to police was voluntary by examining “the totality of the
circumstances.” United States v. Finch, 998 F.2d 349, 356 (6th Cir. 1993). Circumstances to
consider include “the age of the accused, his level of education and intelligence, his physical
condition and emotional state at the time of the confession, his expressed fears of violent reprisals,
actual physical punishment, the proximity of the coerciveness of the confession as given, and the
inherent coerciveness of the confession as given.” Wrice, 954 F.2d at 411. In determining whether
a defendant’s will could have been overborne, the court may also consider whether the defendant had
prior experience in the criminal justice system. Ledbetter, 35 F.3d at 1070. The government must

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prove the voluntariness of the defendant’s statement by preponderance of the evidence. Mahan, 190
F.3d at 422.
“[A] finding of coercion need not depend upon actual violence by a government agent; a
credible threat is sufficient.” Arizona v. Fulminante, 499 U.S. 279, 287 (1991). “Specifically,
threats to arrest members of a suspect’s family may cause a confession to be involuntary.” Finch,
998 F.2d at 356. Whether a threat to prosecute a third party is coercive “turns on the issue of
whether the threat could have been lawfully executed.” United States v. Johnson, 351 F.3d 254, 263
(6th Cir. 2003). In Finch, police officers executing a search warrant at the defendant’s residence,
at which his mother and girlfriend were also present, told the defendant that if the defendant did not
disclose the location of his drugs, the officers would arrest all three of them; the defendant then
immediately told the police where the drugs were. Finch, 998 F.2d at 355. In reversing the district
court’s denial of the defendant’s motion to suppress, this Court noted that all three of the Mahan
factors were present: the police had no probable cause to arrest either woman, the interrogation
occurred in an “inherently oppressive” atmosphere in which the occupants were detained in the
residence by five officers drawing guns, and the defendant’s testimony that the officers’ threat
motivated him to confess was supported by the fact that he confessed immediately after the threat
was made. Id. at 355-56.
In this case, the district court found that none of the three prongs of the involuntary coercion
test was present. The court found that the threat to file federal charges against Buck was not
objectively coercive because Officer Finley may have believed in good faith that Buck could be so
charged; it found that although the Hunter was mildly mentally retarded, his prior experience with

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the criminal justice system offset his mental deficiencies; and it found that Hunter’s motivation
derived more from the gun-residue test Sergeant Frazier administered on Hunter’s hands than from
the threat to charge Buck with a federal offense.
Hunter argues that the threat to charge Buck with a federal offense was an objectively
coercive tactic, and that his mild retardation rendered him vulnerable to coercive interrogation
tactics. Regardless of the merits of these arguments, the district court did not clearly err in finding
that the single mention of the possibility of bringing a federal charge against Buck did not motivate
Hunter’s decision to confess.
In fact, there is ample evidence to suggest that the threat to charge Buck with a federal crime
was not the crucial motivating factor behind Hunter’s confession. There is no evidence in the record
which indicates that the officers repeated the threat of a federal charge at the station, where Hunter
ultimately confessed. At the station, it was only after Sergeant Frazier introduced the matter of the
gun-residue test that Hunter confessed. Sergeant Frazier testified that “when I told [Hunter] how the
test works and [that the examiners will] be able to distinguish between fireworks and gunshot
residue, then he told me that he wanted to talk to me.” (J.A. at 87.) The defense offered no evidence
to contradict Sergeant Frazier’s chronology. Thus, unlike in Finch–where the defendant immediately
responded to the threat by confessing and testified that the threat was his motivation for confessing,
998 F.2d at 355-56–in this case Hunter confessed immediately after Sergeant Frazier threatened to
administer the gun residue test. The gun-residue test was just as plausible a motivating factor as the
threat to bring federal charges against Buck. Moreover, there is no admissible evidence that, in spite
of the chronology of events, the threat of federal charges was the crucial factor that motivated him

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to confess. Although James Burk testified that Hunter had mentioned federal charges upon
confessing, the district court properly discounted that evidence as double-hearsay.
The only admissible evidence that the threat to charge Buck motivated Hunter was that upon
confessing, he told Sergeant Frazier that he did not want Buck to be charged. However, that
statement provides no insight into whether it was the threat of federal charges that motivated Hunter.
It would appear that the threat of charging Buck federally was not repeated throughout the
interrogation and certainly was not the focus of the communication between Hunter and the officers.
Because the district court’s finding that the threat of federal charges did not specifically
motivate Hunter to confess was not clear error, this Court will defer to that finding. See Wrice, 954
F.2d at 410-11. Accordingly, viewing the facts in the light most favorable to the government, we
do not find that Hunter’s confession was involuntary.
CONCLUSION
For the reasons set forth above, we AFFIRM the judgment of the district court.

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