In the

United States Court of Appeals
              For the Seventh Circuit

No. 09-1263

U NITED S TATES OF A MERICA,
                                               Plaintiff-Appellee,
                               v.

C HRISTOPHER V ILLALPANDO ,
                                           Defendant-Appellant.


          Appeal from the United States District Court
              for the Western District of Wisconsin.
          No. 08 CR 98—Barbara B. Crabb, Chief Judge.



     A RGUED JUNE 4, 2009—D ECIDED D ECEMBER 16, 2009




 Before FLAUM, W OOD , and T INDER, Circuit Judges.
  T INDER, Circuit Judge. Christopher Villalpando pleaded
guilty to one count of possessing cocaine with intent to
distribute and was sentenced to 70 months in prison. In
his plea agreement, he reserved the right to appeal the
denial of a motion he filed to suppress incriminating
statements he gave to the police after he was arrested.
These statements led to the search of his apartment that
turned up the aforementioned cocaine. We agree with the
2                                              No. 09-1263

district court that the statements were voluntary and
therefore affirm Villalpando’s conviction.


                     I. Background
  Christopher Villalpando, at the time a 21-year-old
college student on probation for Wisconsin state drug
convictions, was stopped by police after leaving his home
and consented to the search of his SUV. In the vehicle,
police found 3.6 grams of marijuana. At this point,
Villalpando faced a dilemma. If the presence of the drugs
in his vehicle were reported to his probation officer,
Villalpando could be subject to a probation hold, put
back in jail and unable to return to school. Similarly, if
he were locked up on the marijuana charge, he would be
forced to miss school (and his detention would come to
the attention of his probation officer). Denise Markham,
a Madison detective, interrogated Villalpando in her
squad car, after reading his rights and reminding him of
these potential problems.
  After going over Villalpando’s potential probation
difficulties, Detective Markham indicated that she would
try and use her influence on the district attorney and
Villalpando’s probation officer to work out a situation
where they would offer leniency in return for Villalpando’s
help. After Villalpando equivocated, Markham con-
tinued to ask for his help, repeatedly explaining that she
would intercede on his behalf and maintaining that her
interest was in another guy (presumably Villalpando’s
supplier). The police were not interested in the marijuana
No. 09-1263                                              3

in Villalpando’s car; instead they were interested in his
cocaine sales.
  Ultimately, Villalpando made a series of admis-
sions—that there was marijuana in his apartment, that
there was money and a pistol in a safe in the apartment,
and finally that there were 9 ounces of cocaine in the
apartment. The police used this information to get a
search warrant for the apartment and Villalpando
pleaded guilty to possessing the cocaine found within.
Villalpando filed a motion to suppress the evidence,
arguing that his admissions were involuntary because
they were induced by Detective Markham’s false
promises, and therefore that the evidence found in his
house was the fruit of the involuntary admissions. The
magistrate judge’s report (adopted by the district court)
found his statements to be voluntary and denied the
motion. Villalpando then entered a conditional guilty
plea that preserved his right to appeal the denial of his
motion to suppress. He asks us to find his statements
involuntary and remand the case to the district court to
order the suppression of his inculpatory statements
and the search warrant they supported.


                 II. Standard of Review
  We review the denial of a motion to suppress under
a dual standard. We review all factual determinations for
clear error, with special deference to the district court’s
credibility determinations. We review conclusions of law
de novo. United States v. Montgomery, 

, 629
(7th Cir.), cert. denied, 

(2009).
4                                                   No. 09-1263

   Villalpando argues that we should review the facts
here de novo since there was no evidentiary hearing
below and we, like the district court, have the entire
transcript of the interview forming the basis of his claim.
The government counters that the district court made
inferences from the transcript and that these are entitled
to our deference. The Supreme Court has held in
similar circumstances that the deferential standard of
review afforded to a trial court’s finding of fact is not
based solely on the trial court’s superior ability to
evaluate live witnesses but also on concerns of judicial
economy. “The rationale for deference to the original
finder of fact is not limited to the superiority of the trial
judge’s position to make determinations of credibility.
The trial judge’s major role is the determination of fact,
and with experience in fulfilling that role comes exper-
tise. Duplication of the trial judge’s efforts in the court of
appeals would very likely contribute only negligibly to the
accuracy of fact determination at a huge cost in diversion
of judicial resources.” Anderson v. City of Bessemer City,
N.C., 

, 574-75 (1985); see also Ginsu Prods., Inc. v.
Dart Indus., Inc., 

, 263 (7th Cir. 1986) (“Where
there are two permissible views of the evidence, the fact-
finder’s choice between them cannot be clearly erroneous.
This is so even when the district court’s findings do not
rest on credibility determinations, but are based instead on
physical or documentary evidence or inferences from other
facts.”) (citations and emphases omitted).
  Whether a statement is voluntary is a matter of law.

. We judge, however, the
voluntariness of a confession under the totality of the
No. 09-1263                                                 5

circumstances, 

course means that we
consider whether the underlying facts as found by the
trial court support the conclusion that the confession
was voluntary, Schneckloth v. Bustamonte, 

,
227 (1973). (While the Court in Schneckloth characterized
the conclusion we should draw as a factual one, we
recognized in United States v. D.F., 

, 419 (7th
Cir. 1997) that the Supreme Court’s decision in Ornelas
v. United States, 

(1996), mandated that we
treat voluntariness as a matter of law mandating
de novo review.)
  Accordingly, the defendant’s argument for a de novo
construction of the facts appears to be foreclosed by
both Supreme Court precedent and our previous cases.
As we proceed through the analysis, however, we will
see that the district court’s factual findings are unchal-
lenged, while the legal conclusions drawn from them
are well-supported. In other words, the standard of
review we employ has no effect on the outcome of this
case.


                       III. Analysis
  An incriminating statement is voluntary if it is “the
product of rational intellect and free will and not the
result of physical abuse, psychological intimidation, or
deceptive interrogation tactics that have overcome the
defendant’s free will.” United States v. Dillon, 

,
757 (7th Cir. 1998). Villalpando alleges that his free will
was overcome by the interrogating detective’s offer of
deceptive promises of leniency. To date, our cases
6                                                 No. 09-1263

dealing with this issue have generally imagined the
hypothetical circumstance where a false promise
would make a confession involuntary even as we
found that such a circumstance did not exist in the case
at issue. See, e.g., United States v. Kontny, 

, 818
(7th Cir. 2001); Sprosty v. Buchler, 

, 646-47 (7th
Cir. 1997); United States v. Baldwin, 

, 365 (7th
Cir. 1995), vacated and remanded on other grounds, 

(1996); United States v. Rutledge, 

, 1130
(7th Cir. 1990). In these cases, we made clear that while
a false promise of leniency may render a statement invol-
untary, police tactics short of the false promise are usually
permissible. “Trickery, deceit, even impersonation do not
render a confession inadmissible . . . unless government
agents make threats or promises.” 

.
In a situation similar to Villalpando’s we found that a
confession induced by a promise “to bring cooperation by
the defendant to the attention of prosecutors [did] not
render a confession involuntary.” United States v. Charles,

, 497 (7th Cir. 2007). So, for Villalpando to
succeed here, he has to establish that his interrogator
made him a promise that was materially false and thus
sufficient to overbear his free will. See 

(collecting cases and noting that not every
false promise constitutes coercion).
  The reason we treat a false promise differently than
other somewhat deceptive police tactics (such as cajoling
and duplicity) is that a false promise has the unique
potential to make a decision to speak irrational and the
resulting confession unreliable. Police conduct that influ-
ences a rational person who is innocent to view a false
No. 09-1263                                              7

confession as more beneficial than being honest is neces-
sarily coercive, because of the way it realigns a suspect’s
incentives during interrogation. “An empty prosecutorial
promise could prevent a suspect from making a rational
choice by distorting the alternatives among which the
person under interrogation is being asked to choose.” 

(quoting 

). The ultimate
result of a coercive interrogation is unreliable.
  So, our task is to examine whether Villalpando was not
able to make a rational decision due to promises made by
the interrogating detective. As noted, we review
Villalpando’s decision to speak by considering the
“totality of the circumstances,” including “whether the
defendant was read his Miranda rights, the defendant’s
age, the duration and nature of the questioning, and
whether the defendant was punished physically.” 

. The burden is on the government to
prove the voluntariness of Villalpando’s statements by a
preponderance of the evidence. Lego v. Twomey, 

, 489 (1972); United States v. Church, 

, 404
(7th Cir. 1992). The evidence the government offers is
the entire transcript of the interview.
  Villalpando’s claim is simple. He claims that the inves-
tigating detective offered to keep him out of jail in ex-
change for his cooperation. This is true—but only to a
limited extent. Unfortunately for Villalpando, the devil
is in the details. Villalpando argues that cooperation
meant simply revealing the presence of cocaine in his
house, but it is clear from the transcript that the con-
versation between Villalpando and Detective Markham
8                                              No. 09-1263

concerned his future cooperation with the investigation
of his supplier. It was in the context of negotiating this
future cooperation that Villalpando chose to come
clean about what was in his apartment.
  Our conclusion that the conversation was a negotia-
tion matches the findings of the district court. The
district court noted Villalpando’s familiarity with the
criminal justice system, the fact that he was not
physically threatened, and the first-name basis he was
on with the detective and considered the full circum-
stances as demonstrating that Villalpando was negoti-
ating with the police. (The conversation between the
detective and the defendant was remarkably relaxed,
with both of them addressing each other by their first
names throughout.) We agree and find that his choice
to reveal the cocaine in his safe was rationally made
within the context of these negotiations.
  Of course the scales in the negotiation weren’t evenly
balanced. As Vilalpando himself noted during the inter-
rogation, the police had leverage over him and were
seeking more. But, as the district court found, Villalpando
was looking for the best deal he could get, knowing that
he was facing potential jail time for the marijuana viola-
tion. The explicit promises offered by the detective
were these: she would try to persuade the probation
officer not to revoke his probation and she would not
arrest him that night if he cooperated with the investiga-
tion against the unnamed target.
  Thus, the actual promises made during the interview
belie Villalpando’s contention that he struck a bargain
No. 09-1263                                                 9

with the detective that would secure his release in return
for information about his own drug possession. The
conversation reveals that the detective sought a more
extensive cooperation from Villalpando and reveals that
her promises in regard to that cooperation were less
than solid. She offered, for instance “to go to bat” for
Villalpando and indicated that she would “sit down” with
the DEA, the police, and his probation officer to “work
this out.” She indicated that “we don’t have to charge
you.” None of these, standing alone or in the context of
the interview, represented a solid offer of leniency in
return solely for his admission to cocaine possession.
  Furthermore, the detective’s statements that Villalpando
challenges are merely offers of her help, not the help of the
district attorney, the police, or Villalpando’s PO. (For
example, “I’m going to go to bat for you tonight.”)
Villalpando himself recognized that she was not offering
him anything specific beyond her efforts to intervene on
his behalf, saying toward the end of the interview, “But
the whole point is, Denise, that what you’re basically
telling me is that like—is you don’t know for sure if I’m
not going to be able to go to jail,” and earlier that “you’re
not telling me that I’m not going to jail, you’re just telling
me that you’re going to work at it.” It is far different
to offer to intercede on someone’s behalf than to promise
that such an intercession will be effective (which she
did not do). Villalpando also alleges that Markham’s
statement that he would “see how I uphold my end of the
bargain” is evidence that she had made promises to
Villalpando, promises that she would not keep. But as we
noted, the bargain to which Detective Markham
10                                              No. 09-1263

repeatedly alludes is one in which Villalpando offers
continued help to the police, not simply revealing the
presence of cocaine in his home.
  Finally, Villalpando argues that the detective offered to
use her pull with the DA to make things easier for him.
Whether or not she did so, Charles appears to foreclose
that argument even if we accept, arguendo, that
Markham promised Villalpando the DA’s leniency. In
Charles, we considered an identical argument and
rejected it, finding that the defendant “apparently cooper-
ated with the police, but he saw that goodwill with the
state prosecutor turn to naught when the federal authori-
ties took over the 

. The record before
us is silent on how this became a federal case, but
Charles makes clear that “promises to seek favorable
consideration from the prosecutor do not undermine the
voluntariness of a confession.” 

“The circum-
stances at the time of the statement determine whether
it was voluntary, not where the case was later prose-
cuted.” 

evidence shows that at the time of
Villalpando’s interrogation the detective honestly sought
to exploit him as an informant; Villalpando does not
argue that he made a deal to inform for the police and
that they later reneged on the deal.


                     IV. Conclusion
  Villalpando was in trouble as soon as the police dis-
covered the marijuana in his vehicle. The interrogating
detective offered to help him, but her offer of help did not
amount to a false promise of leniency. In light of the
No. 09-1263                                           11

totality of the circumstances, the statements were volun-
tary and the district court’s decision is A FFIRMED.




                         12-16-09