Filed: Jul. 16, 2015
Latest Update: Mar. 02, 2020
Summary: It stated that no 11 evidence was submitted that Feliz was coerced by the state police.4, The government argues that any error in excluding, Hortencia's testimony was harmless, because the judge found the, police officers to be generally more credible than Feliz's mother, and step-father.
United States Court of Appeals
For the First Circuit
No. 13-2204
UNITED STATES OF AMERICA,
Appellee,
v.
VICTOR MANUEL FELIZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Lynch, and Barron,
Circuit Judges.
Barry S. Pollack, with whom Pollack Solomon Duffy LLP was on
brief, for appellant.
María L. Montañez-Concepción, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, and Thomas F. Klumper, Assistant United
States Attorney, were on brief, for appellee.
July 16, 2015
LYNCH, Circuit Judge. At issue are the proper procedures
for determining whether a confession is voluntary under Jackson v.
Denno, 378 U.S. 368 (1964). The procedure followed by the trial
court was based on an error, so we vacate the defendant's
conviction and remand for further proceedings consistent with this
opinion. See Sims v. Georgia,
385 U.S. 538, 544 (1967). Although
issues under Miranda v. Arizona,
384 U.S. 436 (1966), existed
earlier, they are not raised in this appeal.
Victor Feliz, a youth with no prior record, was convicted
in December 2012 of possession of a firearm in furtherance of a
drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A),
and possession with intent to distribute cocaine base, in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(C). His conviction was based
largely on two written confessions. Before trial, Feliz moved to
suppress the confessions as involuntary, being induced by threats
made to him as to repercussions to his mother and his young
siblings if he did not confess.
The magistrate judge heard testimony from two police
officers that the confessions were freely made, and, contrarily,
from Feliz and his mother that the government had dictated to him
his confessions, which he signed, after officers threatened his
mother with deportation and his siblings with being put into state
- 2 -
custody. The magistrate judge recommended that the confessions be
suppressed as involuntary. As relevant here, the government filed
objections as to the magistrate judge's factual finding that the
statements were dictated and the conclusion that the statements
were involuntary.
The district court conducted a de novo hearing. There,
the district court excluded the defense testimony about the
circumstances of the confessions involving police pressure as
hearsay. It then made a series of ambiguous statements to the
effect that any issue about credibility going to the voluntariness
of a confession was for the jury, not for the judge, to decide.
Then, about two months later, it directly ruled and stated that it
admitted the confessions into evidence, because, in its view, the
record before it contained no evidence of coercion (having excluded
that evidence on hearsay grounds). On review, we cannot conclude
that the confessions were voluntary, because the district court
erroneously excluded from consideration the critical evidence to
the contrary. We vacate and remand.1
1
In light of this disposition, we do not reach Feliz's
claim of sentencing error.
- 3 -
I.
A. Factual Background
On February 3, 2012, at 5:45 a.m., Puerto Rico police
executed a search warrant2 at a home in Dorado, Puerto Rico. Five
officers arrived at the house, where they found Feliz's mother,
stepfather, minor sisters, and infant brother. Feliz himself, an
eighteen-year-old with no criminal record, was not present.
Feliz's stepfather Luis Rivera, the owner of the house, identified
the bedroom in which Feliz had last stayed. The officers testified
that they found a loaded pistol, more ammunition, eighty-seven
capsules of cocaine base, and $1,384 in cash in the bedroom. They
arrested Rivera, Feliz's stepfather, for possessing a firearm
without a license. They then transported Rivera and the rest of
the family, including the two-year-old infant, to the police
station.
At this point, the accounts of the police officers and
Feliz's family diverge. According to the police officers, as the
2
The search warrant was based on a tip from an informant
and subsequent observation of Feliz at the home by Puerto Rico
police officers. In the district court, Feliz sought a Franks
hearing, arguing that the affidavit accompanying the search
warrant contained material facts that were false or made with
reckless disregard for their truth. See Franks v. Delaware, 438
U.S. 154 (1978). The district court denied the motion on September
15, 2012, and Feliz has not appealed that decision.
- 4 -
officers got into their patrol cars, Feliz appeared and approached
the house. One of the officers, Agent José Vélez, left his car,
gave Feliz a Miranda warning, arrested him, and drove him to the
police station. At the station, Agent Vélez again gave Feliz the
Miranda warnings, this time verbally and in writing. Feliz signed
that he understood his Miranda rights, and then, around 7:30 a.m.,
the police say he wrote a confession on the reverse side of the
Miranda form. The confession stated that Feliz owned the gun,
drugs, and money, and that his family did not know of them. Feliz
also signed a property seizure form.
The police officers say they then took Feliz to the
office of the federal Bureau of Alcohol, Tobacco, and Firearms
(ATF) in San Juan for DNA testing. Agent José López, an officer
of the Puerto Rico police participating in an ATF task force,
conducted the testing. Feliz began crying and confessing again.
Agent López immediately gave Feliz a verbal Miranda warning, told
Feliz to stop, and had Feliz read and sign a written Miranda form.
Feliz then again wrote a confession on the reverse side of the
Miranda form, around 2:30 p.m. This second, more detailed
confession explained that Feliz obtained the firearm for
protection while selling drugs, and that he began selling drugs to
provide for his ten-month-old son while Feliz was unemployed.
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Feliz and his mother, Hortencia Feliz, recounted a
different tale. According to them, after the search of the house,
the police officers told Feliz's mother to call Feliz. She did.
Feliz missed her call, but soon returned it. One of the officers
took the phone from his mother to speak with Feliz. The officer
told Feliz to turn himself in, because "all of that" was his. The
officer also threatened Feliz that, if he refused to turn himself
in, his siblings would be sent to the custody of the Department of
Family Affairs. Feliz's mother was audible to Feliz, crying in
the background. Hortencia confirmed his account.
Feliz turned himself in to the police at the station,
where officers walked him past his family and into an interrogation
room. One of the officers told him that if he failed to confess,
his mother, a Dominican national, would be deported. Agent Vélez
then dictated the first confession to Feliz. After Feliz wrote
out the confession, Agent Vélez told Feliz to sign the Miranda
form, presenting it as an afterthought and without giving Feliz
the opportunity to read it.
Later, in the ATF office's interrogation room, Agent
López threatened Feliz that if he did not confess again, his mother
would be deported and sisters removed to the custody of the state.
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Agent López dictated the second, more detailed confession to Feliz.
Feliz signed the second Miranda waiver.
B. Magistrate Judge Proceedings
The government filed a criminal complaint against Feliz
on February 3, 2012, charging him with possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c), and possession with intent to distribute cocaine base,
in violation of 21 U.S.C. § 841(a)(1). A grand jury indicted Feliz
on the same two counts, along with a forfeiture allegation, on
March 1, 2012. Feliz entered a plea of not guilty.
On April 16, 2012, Feliz moved to suppress the Miranda
warnings and waiver form, his statements written on the back of
those forms, and the evidence seized from his home, which he argued
had been planted by the police. The district court referred the
motion to a magistrate judge on May 4, 2012.
On June 7, 2012, the magistrate judge held a suppression
hearing. Agent Vélez and Agent López testified for the government,
and Feliz, Rivera, and Feliz's mother Hortencia testified for the
defense. Feliz's sister also testified for the defense, saying
that she saw the police officers bring a black bag into the house
on the day of the search.
- 7 -
On June 20, 2012, the magistrate judge issued a Report
and Recommendation. The judge found that, "after observing their
demeanor and noting their consistency, as well as that of the other
witnesses," "the testimony of Defendant Feliz and his family
members" was credible. The magistrate judge credited that
testimony over the testimony of the police officers.
Applying the law to the version of events offered by the
Feliz family, the magistrate judge recommended that both
confessions be suppressed because neither was made voluntarily.
Feliz did not waive his Miranda rights before making the first
statement. He also made the statement under "intense psychological
pressures": the threatened deportation of his mother and removal
of his sisters from their family, and the fact that his entire
family was in police custody and at the police station. The second
confession was involuntary for the same reasons.
The magistrate judge recommended denial of the motion to
suppress the physical evidence, concluding that "whether that
evidence was possessed or planted is a question for the jury."
However, the judge "doubt[ed] whether Feliz ever possessed any of
it." The Feliz family's testimony indicated that Feliz had not
lived in the house for months prior to the search, that his younger
sister lived in the room at the time of the search, that the agents
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"found" the gun in a laundry hamper minutes after entering the
home and outside the presence of any of Feliz's family, and that
the agents took no photographs of the crime scene and did not test
the gun or drugs for fingerprints. Feliz's mother and sister each
testified that they saw the police bring a duffle bag into the
house.
Feliz did not object to the Report and Recommendation,
but the government did on July 3, 2012. The government objected
to the factual findings that Feliz's statements were made before
he received the Miranda warnings form and simply followed the
dictation of the police officers. It also objected to the finding
that Feliz did not live at the house in Dorado, Puerto Rico. The
government concordantly objected to the conclusion that the
confessions were made involuntarily and should be suppressed.
C. District Court Proceedings
The district judge held a de novo hearing on July 6,
2012. The district court heard from Agent Vélez and Agent López,
as well as Rivera and, initially, Hortencia. Hortencia began
describing the first threat by the agent over the phone to her
son, that an officer told Feliz that his siblings were "all going
to the Department of the Family." The district court sustained a
hearsay objection and cut off the line of questioning. The
- 9 -
district court said, "This is hearsay. . . . [I]f you want that
proof to come in, you have to Subpoena the police." The district
court rejected defense counsel's attempts to argue that a hearsay
exception applied, saying, "If you want all these hearsay
statements to come in, you have to Subpoena the police." In its
view, the defense should have subpoenaed the police officer who
allegedly spoke to Feliz by phone and had not testified at either
hearing. The court similarly excluded Hortencia's account of the
police officer's dealings with Feliz at the police station as
hearsay.
When the defense tried to call Feliz's sister to testify,
the government objected on relevance grounds, because her
testimony would be relevant to whether the drugs were planted, but
not to whether Feliz's statements were voluntary. The district
court observed that Feliz did not object to the magistrate judge's
decision on the physical evidence. At the conclusion of that
colloquy, the district judge said:
The issue here you are fighting is the
statements of the defendant. And the evidence
that I am hearing puts the so-called statement
of the defendant in the realm of credibility.
And if it is in the realm of credibility, this
Judge cannot decide it. That is going to
belong to the jury. . . . By the evidence I
have heard, you can produce seven witnesses
here that say, no, he didn't give that
- 10 -
statement. And the United States will produce
seven more that say, yes, it is
voluntary. . . . I cannot suppress a matter
that is in the realm of credibility. (emphases
added).
Defense counsel replied, "Then, Judge, at this time we rest and we
move forward." Neither Feliz's sister nor Feliz himself testified
at the de novo hearing.
The judge immediately concluded: "Well, if that is the
case, then the Judge finds that the matter of the statements of
the defendants fall in the realm of credibility. And, therefore,
they belong to the jury. . . . This doesn't belong to me."
(emphasis added). The judge did not make an express finding at
the hearing that the confession was made voluntarily.
The district court then considered Feliz's bail. On
June 8, 2012, the magistrate judge had reviewed Feliz's bail and
released him on a $10,000 bond. The district court had held a de
novo bail hearing on June 20. After hearing more evidence at the
suppression hearing, the district court concluded that Feliz
should be detained. When discussing the weight of the evidence,
the district court said that the confessions seemed "valid because
they have too much detail."
On September 15, 2012, the district court entered a
written order denying the suppression motion. It stated that "no
- 11 -
evidence was submitted that Feliz was coerced by the state police."
Evidence to the contrary on which the magistrate judge relied "was
not reiterated in the hearing before the undersigned." The court
also noted that the confessions signed by Feliz, including a
Miranda warning, were written in his own handwriting, and the
second was "replete with details." The court added that phone
calls Feliz made from prison suggested a "consciousness of guilt,"
so it found that "the credibility of the police officers executing
the search warrant is . . . much more reliable and trustworthy
than Feliz' [sic] mother's and step-father's version of the
relevant facts."
Nonetheless, the court continued, "there remains an
issue of credibility," so "the Court allows Feliz, if he so
chooses, to present the issue of voluntariness of his confession
to the jury at trial."
Feliz's jury trial began on December 3, 2012. On
December 10, Feliz moved in limine to exclude his confessions. In
court the next day, the court began discussing the motion by saying
that "whether this was a confession that was coerced or not
coerced, that is an issue [] for the jury to decide." Defense
counsel explained that he filed the second motion "because the
record of the case is not clear as to whether or not [the district
- 12 -
court] actually overturned the report and recommendations, which
we understand that [the district court] did, but it is not shown
on the record." The district court replied,
The Court, I thought, made it very clear that
I thought that my impression was that the
confession was not coerced, but I think that
this is an issue of credibility, which may be
repeated to the jury. All right? That is my
determination. . . . I even made an analysis
of certain letters that I thought were
repeated constantly in the same fashion,
meaning to me that there was no coercion.
At trial, the district court admitted the confessions
and instructed the jury to "decide (1) whether Victor Manuel Feliz
made the statement[s], and (2) if so, how much weight to give
[them]."
On December 18, 2012, the jury convicted Feliz on both
counts. On September 3, 2013, the district court sentenced Feliz
to eighty-seven months imprisonment: sixty months on Count 1 and
twenty-seven months on Count 2, served consecutively, along with
five years of supervised release. This appeal followed.
II.
Feliz challenges the district court's denial of his
motion to suppress his statements as involuntary. We review the
district court's factual findings and credibility determinations
- 13 -
for clear error, and its conclusions of law de novo. United States
v. Awer, 770 F.3d 83, 89 (1st Cir. 2014).
Feliz offers two arguments. First, he argues the
district court did not actually decide the voluntariness of the
confessions as it was required to do. Second, he argues that the
district court's later written voluntariness decision cannot be
sustained. Because the district court belatedly did rule the
statements were voluntary, we focus ultimately on the second point.
A. Did the District Court Decide the Issue?
The Constitution prohibits admission of a coerced
confession to prove a defendant's guilt. United States v. Jacques,
744 F.3d 804, 809 (1st Cir. 2014) (citing Dickerson v. United
States,
530 U.S. 428, 433 (2000)); United States v. Faulkingham,
295 F.3d 85, 90 (1st Cir. 2002). Accordingly, in federal courts,
trial judges are tasked with determining the voluntariness of a
conviction before trial. See 18 U.S.C. § 3501(a); Crane v.
Kentucky,
476 U.S. 683, 687-88 (1986); United States v. Hughes,
640 F.3d 428, 438 (1st Cir. 2011); see also
Jackson, 378 U.S. at
376-79. The voluntariness inquiry probes "the physical and
psychological environment that yielded the confession," a "purely
legal question."
Crane, 476 U.S. at 688-89. The trial judge
considers "the totality of the circumstances, including both the
- 14 -
nature of the police activity and the defendant's situation" to
decide "whether the will of the defendant had been overborne so
that the statement was not his free and voluntary act." Jacques,
744 F.3d at 809 (citations and internal quotation marks omitted).
This decision is for the judge because a jury "may find
it difficult to understand the policy forbidding reliance upon a
coerced, but true, confession." Jackson, 378 U.S. at 382. As the
Supreme Court has explained, "[t]hat a trustworthy confession must
also be voluntary if it is to be used at all, generates natural
and potent pressure to find it voluntary."
Id. Accordingly,
letting a jury make both the voluntariness and credibility findings
risks letting "matters pertaining to the defendant's guilt . . .
infect the jury's findings of fact bearing upon voluntariness, as
well as its conclusion upon that issue itself."
Id. at 383; see
Lego v. Twomey,
404 U.S. 477, 485 (1972) ("[W]e feared [in Jackson]
that the reliability and truthfulness of even coerced confessions
could impermissibly influence a jury's judgment as to
voluntariness."). The burden of proof is on the prosecution to
show by a preponderance of the evidence to the judge that the
confession was voluntary. See Lego, 404 U.S. at 489; United States
v. Hufstetler,
782 F.3d 19, 22 (1st Cir. 2015).
- 15 -
Once the trial judge renders a "clear-cut determination
that the confession . . . was in fact voluntary," the defendant
generally retains the freedom to "familiarize a jury with
circumstances that attend the taking of his confession, including
facts bearing upon its weight and voluntariness." Lego 404 U.S.
at 483, 486. That is so because the jury is empowered to "assess
the truthfulness of confessions,"
id. at 485 -- their credibility
-- as part of their decision on "the ultimate factual issue of the
defendant's guilt or innocence."
Crane, 476 U.S. at 689; see 18
U.S.C. § 3501(a); Fed. R. Evid. 104(e).
Feliz argues that the district judge never made the
required finding of voluntariness, instead deferring the issue for
the jury. The government contests Feliz's reading of the record,
but it does not argue that such a deferral would be lawful.
The magistrate judge recommended that the district judge
find that the confessions were involuntary. The district judge
conducted a de novo hearing and exercised his authority to make a
de novo determination, as the law permits. See 28 U.S.C.
§ 636(b)(1); United States v. Lawlor, 406 F.3d 37, 40 (1st Cir.
2005) (citing United States v. Raddatz,
477 U.S. 667, 676 (1980)).
At the conclusion of the hearing, the district judge said only
that "the matter of the statements of the defendant fall[s] in the
- 16 -
realm of credibility," without making a voluntariness finding. In
his written opinion denying the motion to suppress, the district
judge concluded that there was no evidence of coercion, but also
that "there remains an issue of credibility," so Feliz may "present
the issue of the voluntariness of the confession to the jury at
trial." The district court only clearly explained that the
confessions were voluntary when denying Feliz's motion in limine
at trial.
The district court's decisions are not a model of
clarity. And we cannot merely extrapolate from the fact that the
district court denied the suppression motion: that fact could mean
either that the court made the proper voluntariness finding or
that the court made no finding and deferred the issue to the jury.
Cf. Jackson, 378 U.S. at 378-80. Similarly, while the district
court accurately observed that the jury may decide issues of
credibility, it also used the term "credibility" to describe its
own analysis. Any rule that requires the voluntariness of a
confession to be decided by the jury and not the judge when a
witness's credibility is at issue is erroneous under Jackson v.
Denno.
Only immediately before the opening statements at trial
did the district court unequivocally conclude that the confessions
- 17 -
were not coerced -- meaning, presumably, that they were voluntary.
But that was enough to provide a sufficiently clear ruling before
the opening statements at trial. "Although the judge need not
make formal findings of fact or write an opinion, his conclusion
that the confession is voluntary must appear from the record with
unmistakable clarity." Sims, 385 U.S. at 544. That ruling came
at the defendant's request, and Feliz has not suggested that he
was prejudiced in any way by the ambiguity persisting between the
September 15, 2012, written order and the December 11, 2012, order
at trial.
B. The Trial Judge's Ruling That the Confessions Were Voluntary
"The voluntariness of a defendant's confession is a
question of law meriting de novo review." Jacques, 744 F.3d at
809. We bypass the question of whether defendant appropriately
preserved his objection to the district court's voluntariness
finding; the standards for plain error have been met. The error
was obvious; it prejudiced Feliz, since the district court's basis
for denying the motion to suppress was that no evidence of coercion
was submitted at the de novo hearing; and it seriously impugned
the fairness, integrity, or reputation of the proceeding. See
United States v. Correa-Osorio,
784 F.3d 11, 17-18 (1st Cir. 2015).
- 18 -
The government argues only in a perfunctory footnote
that the confession would be voluntary even under the events as
described by Feliz's family. So the voluntariness issue hinges on
the record and the explanation provided by the district court.
The district court curtailed the record before it when
it excluded as hearsay Hortencia's testimony that she heard a
police officer threaten Feliz with the deportation of his mother
and state custody for his siblings. The court never evaluated the
two competing accounts, because it ruled that only one account was
before it.
This was plain error. Hearsay is a statement "the
declarant does not make while testifying at the current trial or
hearing," and "a party offers in evidence to prove the truth of
the matter asserted in the statement." Fed. R. Evid. 801(c).
Feliz did not attempt to introduce testimony of the officers'
threats for the truth of the matter asserted. Hortencia testified,
for example, that the officer said "your siblings are all going to
the Department of Family." Before the magistrate judge, Hortencia
testified that an officer said to Feliz, "We are going to deport
your mother." She also testified there that the officers told
Feliz that if he did not turn himself in, "they were going to
deport me and they were going to call the Department of the Family
- 19 -
to take the boy and girls." That testimony would not show that
Feliz's siblings would truly be sent to the Department of the
Family if he did not turn himself into police custody, or that she
would have been deported. Rather, the testimony, if credible,
would show the fact that the police officer made the threat to
Feliz, a fact within Hortencia's personal knowledge. See Fed. R.
Evid. 801(c) advisory committee's note ("If the significance of an
offered statement lies solely in the fact that it was made, no
issue is raised as to the truth of anything asserted, and the
statement is not hearsay."); United States v. Bowles, 751 F.3d 35,
40 (1st Cir. 2014) (characterizing threats as "verbal acts that
are not hearsay" (citing United States v. Diaz,
597 F.3d 56, 65
n.9 (1st Cir. 2010))); United States v. Bellomo,
176 F.3d 580, 586
(2d Cir. 1999) ("Statements offered as evidence of . . .
threats . . ., rather than for the truth of the matter asserted
therein, are not hearsay."); see also United States v. Walker, 665
F.3d 212, 230-31 (1st Cir. 2011).
The government falls back to its misunderstanding of the
hornbook rule of evidence that an out-of-court statement may be
offered to "show the effect of the words spoken on the listener."
See United States v. Bailey, 270 F.3d 83, 87 (1st Cir. 2001)
(citing 5 Weinstein's Federal Evidence § 801.03[4] (2d ed. 1999)).
- 20 -
Since Hortencia was not the intended recipient of the threat, the
argument goes, she could not testify to it.
That is incorrect. The testimony here was offered to
show the effect of the words spoken on the listener, Feliz. Even
though Hortencia was not the target of the threat, she could still
testify that the officer made the threatening statement and it was
heard by Feliz. The factfinder can then infer the effect on Feliz
from that testimony. See, e.g., Biegas v. Quickway Carriers, Inc.,
573 F.3d 365, 379 (6th Cir. 2009); United States v. Lambinus,
747
F.2d 592, 597 (10th Cir. 1984); United States v. Cline,
570 F.2d
731, 734-35 (8th Cir. 1978). The government offers no case -- and
we are aware of none -- suggesting that only the listener (and not
an independent over-hearer of a conversation) may testify to an
out-of-court statement that is relevant to the listener's state of
mind. In any event, the formulation "effect of the words on the
listener" is not a rigid hearsay exception, but an example of a
"more common type[] of nonhearsay utterance[]." 2 McCormick on
Evidence § 249 (7th ed. 2013). As we have already explained, this
statement is a nonhearsay utterance because it is not being used
to prove the truth of the matter asserted.3
3
There is no safe harbor for the government in the fact
that the Federal Rules of Evidence do not generally apply in
- 21 -
Given that the improperly excluded testimony was both
plausible and significant in this case, the proper course was for
the district court to admit the evidence and "give it such weight
as his judgment and experience counsel." United States v. Matlock,
415 U.S. 164, 175 (1974). In the written opinion, the district
court simply said that there was "no evidence" of coercion and,
while "[t]here may have been evidence" of coercion before the
magistrate judge, "similar evidence was not reiterated in the
hearing before the undersigned."4
In light of these missteps, and our inability to say
they were harmless, we remand to a different district court judge
to conduct a new suppression hearing. See Sims, 385 U.S. at 544;
see also
Matlock, 415 U.S. at 177-78. "Of course, if the [trial]
court, at an evidentiary hearing, redetermines the facts and
suppression hearings, see United States v. Bunnell,
280 F.3d 46,
49 (1st Cir. 2002). If anything, the inapplicability of the
Federal Rules of Evidence provide further support for why Hortencia
should have been permitted to testify about what she heard, because
the evidence was clearly relevant.
4
The government argues that any error in excluding
Hortencia's testimony was harmless, because the judge found the
police officers to be generally more credible than Feliz's mother
and step-father. But the district court did not find Feliz's
family entirely incredible, and it did not make any finding or
give any reason for why it would disbelieve them had they testified
on the subject of the voluntariness of Feliz's confessions.
Rather, it said there was no evidence of coercion.
- 22 -
decides that [Feliz's] confession was involuntary, there must be
a new trial on guilt or innocence without the confession's being
admitted in evidence." Jackson, 378 U.S. at 394.
III.
We vacate the order denying the motion to suppress,
vacate the judgment of conviction, and remand for further
proceedings consistent with this opinion. Upon remand, the case
shall be assigned to a different judge for a new proceeding.
So ordered.
- 23 -
