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July 17, 1985


The opinion of the court was delivered by: STERN

 This matter comes before the Court on a motion to suppress by defendant Lawrence Fraction, who claims that a confession he made to Federal Bureau of Investigation Agent Henry W. White, Jr., was involuntary. An evidentiary hearing was held on June 5, 1985. *fn1" For the reasons stated below, defendant's motion is granted.


 On September 21, 1984, Agent White traveled to Rahway State Prison in New Jersey, where Mr. Fraction had recently started serving a fifteen-year state sentence, in order to question Fraction about the 1983 armed robbery of the First People's State Bank of Woodbury, New Jersey. United States v. Fraction, Cr. No. 85-145, Tr. of June 5, 1985 at 5, 18 (D.N.J.) (henceforth cited as Tr. of June 5, 1985). Fraction was questioned in an interview room at the prison. Id. According to Agent White, as soon as he identified himself, "Mr. Fraction said something to the effect that: 'I was expecting you' or 'expecting you all.'" Id. at 6. White then had Fraction read his Miranda rights off "our form FD-395" and sign the waiver. Id. at 6-7. This form bearing Fraction's signature was introduced into evidence. The last sentence reads: "I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me." Id. at 8. According to White, Fraction then stated that he was unwilling to testify against Samuel Hutchings. Id. And Fraction asked what he would get in return for cooperation. Id. at 16. Agent White testified:

At that time, I advised him that he would not have to testify against Mr. Hutchings.
I also told him that I would not be able to promise him anything in terms of help other than to notify the U.S. Attorney and a sentencing judge that he had cooperated in the matter. And that was the extent of what I could do for him.

 Id. at 8.

 Fraction proceeded to tell the story of the bank robbery, and the interview concluded after about one-half hour. Id. at 9. Agent White specifically denied making any promises relating to the sentence or treatment Fraction might get. Id. at 10. Finally, the Assistant U.S. Attorney introduced into evidence Mr. Fraction's "three-page rap sheet" showing "an extensive criminal history of both felony convictions and numerous arrests." Id. at 11.

 Mr. Fraction's version of the meeting is very different. He denied saying he was expecting Agent White or someone from his office. Id. at 19, 24. According to Mr. Fraction, Agent White initiated the interview by saying, "Well, I'm sure you know why I'm here," and Fraction answered by denying any such knowledge. Agent White proceeded to report that he knew a lot about Fraction, and he knew that Fraction was involved in the March, 1983 bank robbery. Id. Fraction testified that he denied knowledge of the bank robbery and that he never indicated willingness to give a statement about the bank robbery. Id.

 Mr. Fraction testified that Agent White intimated that it would "be better for me to go ahead and cooperate now, you know; that it would look better for me and possibly help me in my sentencing." Id. at 20. Agent White proceeded to mention a "tentative parole date of something in '87," of which Fraction was unaware. Id. Fraction confirmed that Agent White mentioned reporting cooperation to the U.S. Attorney and the judge, but Fraction claimed that White went on to say that "by my cooperating that I probably would receive a lenient sentence or a concurrent term." Id. Fraction said he signed the Miranda waiver only because of the representations made by White. Id. at 21, 23.

 It is undisputed that the meeting was not witnessed, and that Agent White made no written or taped record of the interview.


 With due allowance for the frailty of human memory, the Court finds no reason to disbelieve Agent White's version of what was said at his meeting with Mr. Fraction. The Court finds no reason to believe that Agent White explicitly offered or discussed a light sentence or a concurrent sentence in order to induce Mr. Fraction to incriminate himself. Under the circumstances of this case, however, the Court finds little difference between such explicit promises of leniency and what Agent White himself acknowledges he did promise Mr. Fraction: That Fraction's cooperation would be brought to the attention of the prosecutor and the sentencing judge.

 In Brown v. Illinois, 422 U.S. 590, 603-04, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975), the Court held that Miranda warnings are merely evidence, not proof, that a defendant knowingly and voluntarily waived the constitutional privilege against self-incrimination. The test for voluntariness has been variously phrased. In Mincey v. Arizona, 437 U.S. 385, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978), the Court asked whether defendant's statements were "the product of his free and rational choice." Id. at 401 (quoting Greenwald v. Wisconsin, 390 U.S. 519, 521, 20 L. Ed. 2d 77, 88 S. Ct. 1152 (1968)). In Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961), the Court asked, "Is the confession a product of an essentially free and unconstrained choice by its maker? . . . [or has] his will been overborne, and his capacity for self-determination critically ...

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