about Goldberger's manhood, a pronouncement about his duplicity, and a question about how seriously this rabbinical student takes his religion.
As Goldberger describes, the Judge looked "very scary" and because it was Ash wednesday, he had a "big ash mark on his forehead." Moreover, the Judge is apparently a large man, about 6'5" tall, whose manner of questioning frightened Goldberger. Goldberger testified further that the Judge screamed at him, which "forced" him to say things which he did not wish to say. According to Goldberger, the Judge's regular tone of voice had a "very high tone" and a "frightening manner of speech," as distinct from his "screaming-screaming" tone.
Goldberger declared that he believed that a judge is like God and he had no idea that he could tell the Judge that he could not answer his questions, and did not know that he had a right to not answer questions that might incriminate him. Thus, according to his testimony, he did not freely and voluntarily testify and had no idea that he could ask to consult with counsel or not answer. In fact, he had been taught in Jewish law to fear, honor, and respect a Judge. However, he was also taught to answer honestly questions asked by a judge. When asked by this Court whether he had ever testified in a deposition before March 1992, Goldberger replied in the negative.
Nevertheless, his present attorney (as an officer of the court), advised this Court that Goldberger had so testified in a deposition in his attorney's office. Once reminded of this event, Goldberger recalled the deposition and estimated that it occurred between August and October 1991.
On cross-examination, Goldberger admitted that he had voluntarily relinquished his United States passport, which surrender was then memorialized by an order directing that the passport be given to Goldberger's attorney. He also conceded that since Judge Angeletti knew he had traveled to Israel after he had given his passport to his attorney, the Judge could have had legitimate questions about how he was able to travel abroad. When questioned at the hearing about the statements he made on his passport application, Goldberger asserted that when he filled out the application, he had truly believed that the passport was lost.
In light of the circumstances surrounding his confession to making a false statement on his passport application, Goldberger contends that his indictment should be dismissed, or, at the very least, his statement should be suppressed. He argues that dismissal is merited on two grounds. First, he states that Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), applies to his case, and the failure to give Miranda warnings is fatal to the government's use of his statements. Second, he argues that the confession was coerced and involuntary. Although both arguments are facially appealing, only the second requires suppression.
The Fifth Amendment to the United States Constitution states, inter alia, that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. In certain situations, the Supreme Court has held that the Constitution requires that warnings be given prior to questioning. Miranda v. Arizona, 384 U.S. at 477-78. Nonetheless, before the requirements of Miranda, and its progeny, are triggered, both custody and interrogation must simultaneously occur. Id.; Illinois v. Perkins, 496 U.S. 292, 297, 110 L. Ed. 2d 243, 110 S. Ct. 2394 (1990) ("It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation."). In this case, the government concedes what the record clearly evidences: that the Judge was "interrogating" Goldberger -- "He knew that [the questions] were reasonably likely to elicit an incriminating response." Government's Opposition to Defendant's Motion to Dismiss Indictment or Suppress Evidence, at 3.
Yet, the government maintains that Goldberger was not in custody for purposes of Miranda.4
Custody involves the "[deprivation] of . . . freedom of action in any significant way." Miranda, 384 U.S. at 444. Or in other words, the inquiry "is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 77 L. Ed. 2d 1275, 103 S. Ct. 3517 (1983) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 97 S. Ct. 711 (1977) (per curiam)). Whether custody exists is determined by the measure of a reasonable person in the suspect's shoes, not upon the interrogator's subjective intent. Berkemer v. McCarty, 468 U.S. 420, 440-42, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984).
In this case, Goldberger was not in custody and hence Miranda does not govern. The questioning occurred during a civil court proceeding, attended voluntarily by Goldberger.
A reasonable person in Goldberger's shoes would not believe that he or she was in custody during the hearing. In fact, other more potentially coercive situations have not been deemed custodial. For example, in Berkemer v. McCarty, the Supreme Court held that an individual stopped by a police officer and asked about his sobriety was not in custody. 468 U.S. at 440. In the same vein, even where an individual was the focus of a criminal tax investigation, it was held that custody did not exist. See Beckworth v. United States, 425 U.S. 341, 344-48 (1976). Even though Miranda warnings were not required in the instant case, the Court must still determine whether Goldberger's "confession was made voluntarily" under the Fifth Amendment. Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981). The Court must hold a voluntariness hearing once a defendant challenges the voluntariness of his or her confession. See 18 U.S.C. § 3501(A) (1988); Jackson v. Denno, 378 U.S. 368, 376-77, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964). At this hearing, the government must by a preponderance of the evidence demonstrate voluntariness. Colorado v. Connelly, 479 U.S. 157, 168, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986); Lego v. Twomey, 404 U.S. 477, 489, 30 L. Ed. 2d 618, 92 S. Ct. 619 (1972).
The voluntariness of a confession turns on the totality of the circumstances. Arizona v. Fulminante, 113 L. Ed. 2d 302, 111 S. Ct. 1246, 1252-53 (1991); Schneckloth v. Bustamonte, 412 U.S. 218, 226, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973); United States v. Hackley, 204 U.S. App. D.C. 221, 636 F.2d 493, 499 (D.C. Cir. 1980). As the Supreme Court queried:
Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of this confession offends due process.