United States v. Irons (646 F. Supp. 2d 927, 2009)

MEMORANDUM AND ORDER

THOMAS A. VARLAN, District Judge.

This criminal case is before the Court for consideration of the Reports and Recommendations (“R & Rs”) entered by United States Magistrate H. Bruce Guyton on November 26, 2008 (“first R & R”) [Doc. 72] and February 2, 2009 (“second R & R”) [Doc. 81]. The government filed an objection to the first R & R [Doc. 74], the defendant filed an objection to the second R & R [Doc. 84], and the government filed a response to defendant’s objection [Doc. 88]. The Court will consider the parties’ objections de novo.

I. Procedural Background

Defendant is charged with seven counts of maliciously damaging and destroying and attempting to damage and destroy, by means of fire, real property owned by the United States Forestry Service, in violation of 18 U.S.C. § 844(f)(1) and (2) and seven counts of setting on fire timber, underbrush, grass, and other flammable material upon land owned by the United States, in violation of 18 U.S.C. § 1855. [See Doc. 3.] Defendant filed a Motion to Suppress Confidential Martial Communication [Doc. 23], a Motion to Suppress Defendant’s Statement to Officers after Request for Counsel [Doc. 24], a Motion to Suppress Defendant’s August 8, 2007 Statement as a Result of Law Enforcement’s Illegal “Save Jane” Ruse [Doc. 25], and a Motion In Limine to Exclude All Derivative Evidence Obtained Directly or Indirectly from Confidential Marital Communications Pursuant to Wong Sun v. United States and the Fruit of the Poisonous Tree Doctrine [Doc. 40].

Magistrate Judge H. Bruce Guyton held an evidentiary hearing on the motions to suppress on October 30, 2007, which was continued on December 11, 2007, and reopened on May 5, 2008. On June 25, 2008, Magistrate Judge Guyton ordered the parties to present oral arguments on the motions [see Doc. 59] and oral arguments were held on August 13, 2008. Magistrate Judge Guyton filed the first R & R [Doc. 72] on November 26, 2008 recommending that defendant’s Motion to Suppress Confidential Marital Communication [Doc. 23] and his Motion to Suppress Defendant’s August 8, 2007 Statement as a Result of Law Enforcement’s Illegal “Save Jane” Ruse [Doc. 25] be granted and defendant’s Motion to Suppress Defendant’s Statement to Officers after Request for Counsel [Doc. 24] and his Motion In Limine to Exclude All Derivative Evidence Obtained Directly or Indirectly from Confidential Marital Communications Pursuant to Wong Sun v. United States and the Fruit of the Poisonous Tree Doctrine [Doc. 40] be denied.

After the issuance of the first R & R, defendant filed a Motion for Leave to File Additional Motions [Doc. 75] and a Motion in Limine to Exclude Defendant’s Second Statement To Police Pursuant to Wong Sun v. United States and the Fruit Of the Poisonous Tree Doctrine [Doc. 76]. Magistrate Judge Guyton granted defendant leave to file Motion in Limine to Exclude Defendant’s Second Statement [Doc. 76] but stated that defendant shall file no other motions without first obtaining leave of Court. [See Doc. 80.] On February 2, 2009, Magistrate Judge Guyton issued his second R & R [Doc. 81] recommending that defendant’s Motion in Limine to Exclude Defendant’s Second Statement [Doc. 76] be denied. This matter is before the Court on the government’s objection to the first R & R [Doc. 74] and defendant’s objection to the second R & R [Doc. 84].

II. Factual Background

Defendant Irons was arrested between 10:15 and 10:30 a.m. on August 8, 2007 in a Wal-Mart parking lot after responding to Officer Jane Wright’s request that he meet her there. After he was arrested, Forest Service Officer Brian Webb and Special Agent Jenny Davis got into a police ear with the defendant. Defendant agreed to be interviewed. Agent Davis gave defendant the option of being interviewed at the jail or at the Tellico Blockhouse, a park, and defendant picked the park.

Defendant inquired whether Officer Wright was in trouble and Agent Davis told him that she had been arrested and was potentially in trouble. Agent Davis asked defendant if he would like Officer Wright to be present during his interview and, after defendant indicated that he would like for her to be there, she was brought to the scene in handcuffs. Defendant, Agent Davis, and Officer Wright sat under a tree at the Tellico Blockhouse. Agent Davis read defendant his Miranda rights and defendant indicated that he understood his rights. She then began interviewing defendant with his consent around 11:00 a.m.

The interview later continued in Agent Davis’s police vehicle. Around 1:00 p.m., Agent Davis, Officer Webb, and defendant stopped at Baker’s Grave Road outside Tellico Plains to allow defendant to speak to his wife, who was handcuffed and with Agent Russ Arthur. Defendant and his wife, both handcuffed, talked to each other for three to five minutes. Defendant has already confessed to setting several forest fires but he gave more detail after seeing his wife in handcuffs. Additionally, defendant admitted to Agent Arthur that he had set fire to Forest Service employee Rex Kelly’s home while Agent Arthur accompanied defendant away from the others to use the restroom and Agent Arthur assisted him in getting a drink from the stream. After defendant stated that he would like to apologize to Kelly, Agent Arthur took him to a bank parking lot so they could get cellular telephone service to call Kelly. After defendant spoke with Kelly, Agent Arthur took him back to Baker’s Grave Road.

Agent Davis testified that she completed writing out defendant’s six-page statement at about 3:00 p.m. She read the statement to defendant, he made a correction, she read the entire statement again, and defendant signed both the statement and the rights waiver form. He was then taken to the Blount County Jail, where he was booked around 4:25 p.m. and detained. At 8:00 a.m. the next morning, August 9, 2007, Agent Arthur interviewed defendant at the Blount County Jail and he obtained a three-page statement which defendant signed. Prior to making the statement, defendant acknowledged that Officer Davis advised him of his rights the previous day and stated that he did not want an attorney.

III. Analysis

As required by 28 U.S.C. § 636(b)(1), the Court has undertaken a de novo review of those portions of the R & R to which defendants object. In doing so, the Court has carefully considered Judge Guyton’s R & Rs [Docs. 72, 81], the underlying briefs [Docs. 23; 24; 25; 29; 34; 35; 40; 42; 76; 78; 79], and briefs regarding the pending objections [Docs. 74; 84; 88]. For the reasons set forth herein, the Court will overrule the government’s and the defendant’s objections [Docs. 74, 84],

A. Government’s Objection to Conclusion that the “Save Jane Ruse” Amounted to Police Coercion Rendering Defendant’s Statement Involuntary

The United States objects to Magistrate Judge Guyton’s finding that defendant’s statement to police on August 8, 2007 was involuntary because the law enforcement tactics used were coercive. However, the government states that there is no need for further review of this issue at this time because the government does not intend to offer the August 8, 2007 statement as evidence in its case-in-chief. Accordingly, the government does not offer any argument supporting its objection to the first R & R.

The Court is not required to engage in de novo review of non-specific objections. See Mira v. Marshall, 806 F.2d 636, 637 (6th Cir.1986); see also Van-Diver v. Martin, 304 F.Supp.2d 934, 937 (E.D.Mich.2004). Because the government does not advance any arguments in support of its objection, the Court does not find that any specific objections have been made. Because no proper objections were timely filed, the Court will treat any objections as having been waived. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The Court has carefully reviewed this matter, and is in agreement with Magistrate. Judge Guyton’s recommendation which the Court adopts and incorporates into its ruling and the government’s objection is OVERRULED.

B. Defendant’s Objection to the Conclusion That There Was a “Clean Break” Between the Coercive Interview and the Statement Obtained the Following Day

Defendant objects to Magistrate Judge Guyton’s recommendation that defendant’s Motion in Limine to Exclude Defendant’s Second Statement To Police Pursuant to Wong Sun v. United States and the Fruit Of the Poisonous Tree Doctrine [Doc. 76] be denied. In his motion, defendant argues that forest service agents used information acquired during the coercive interrogation of August 8, 2007 in order to elicit a second statement from the defendant on the following day, August 9, 2007, and this derivative evidence should be excluded as “fruit of the poisonous tree.” Magistrate Judge Guyton found that defendant’s August 9, 2007 statement is admissible “because there was a clean break between the two interviews, defendant was interviewed at a different location by Agent Arthur, and defendant was aware of his Miranda •rights.” [Doc. 81.]

A statement from an individual which was obtained from the exploitation of an illegal search or seizure, and thus, is fruit of the poisonous tree, should not be admitted at trial unless the statement “was sufficiently an act of free will to purge the primary taint of the unlawful [action].” Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Having made a prior confession of guilt does not necessarily render any future statement involuntary. See Daniel, 932 F.2d at 520 (citing United States v. Bayer, 331 U.S. 532, 540-541, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947)).

[A]fter an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession may always be looked upon as fruit of the first. But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.

Bayer, 331 U.S. at 540-541, 67 S.Ct. 1394. However, “[T]he fact that the earlier statement was obtained ... by coercion is to be considered in appraising the character of the later confession.” Lyons v. Oklahoma, 322 U.S. 596, 603, 64 S.Ct. 1208, 88 L.Ed. 1481 (1944).

In evaluating the voluntariness of the second statement, the Court must determine whether the defendant “knowingly and intelligently waived his right to remain silent and his right to consult with counsel prior to the time he made the statement.” United States v. Daniel, 932 F.2d 517, 519 (1991) (citations omitted). Factors for the Court to consider in determining whether the coercion that occurred during the first statement has carried over into the second statement include: (1) the time that passed between confessions, (2) whether there was a change in place of interrogations, and (3) whether there was a change in identity of the interrogators. Oregon v. Elstad, 470 U.S. 298, 310, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (citations omitted); Daniel, 932 F.2d at 519; see also Lyons, 322 U.S. at 598-604, 64 S.Ct. 1208. The Supreme Court has found that approximately twelve hours between interviews, accompanied by a change in location, and different interviewers was sufficient to purge the taint of an initial coercive interview. See Lyons, 322 U.S. at 598-603, 64 S.Ct. 1208.

The circumstances of this case are similar to that of Lyons. In Lyons, defendant was initially interviewed beginning at 6:30 p.m. at the county prosecutor’s office. Id. at 598. The defendant eventually provided a confession around 2:30 a.m. Id. at 599. During the interview, a pan of the murder victims’ bones was placed on defendant’s lap. Id. at 599-600. After he confessed, defendant was taken to the crime scene to provide more information. Id. at 600. He was not returned to the jail until approximately 8:30 a.m. Id. The statement which occurred during this period of time was deemed to be coerced. Id. The same day defendant was returned to the jail, he was transferred to the state penitentiary. Id. The warden of the penitentiary began interviewing the defendant between 8:00 and 11:00 p.m. that night and defendant signed a second confession. Id. The Supreme Court upheld the trial court’s determination that defendant’s second confession which occurred approximately 12 hours after the initial questioning ended, at a different location, and was obtained by a different interviewer was voluntary and could be used to determine his guilt at trial. Id. at 605.

In this case, the defendant’s coerced statement was given between 11:00 a.m. and 3:00 p.m. by Agent Davis at the Tellico Blockhouse and in her police vehicle outside Tellico Plains. Defendant was not interviewed again until 8:00 a.m. the next morning at the Blount County Jail by Agent Arthur. Thus, although coercive tactics were used to obtain defendant’s initial statement, the place of the interview and identity of the interviewing officer changed between the first and second interviews. Additionally, approximately seventeen hours passed between the interviews.

Defendant’s argument that the change of interviewers was insignificant because Agent Arthur was present on both August 8, 2007 and August 9, 2007 fails because Agent Arthur’s role on August 8, 2007 was minimal, at least from defendant’s perspective. Although Agent Arthur spoke to defendant on August 8, 2007 and defendant confessed to him that he set fire to Kelly’s home, defendant made this statement as Agent Arthur was aiding defendant in his requests to use the restroom and to apologize to Kelly, not because Agent Arthur was interrogating him. Thus, when Agent Arthur stepped into the role of interrogator on August 9, 2007, it was a change in circumstance.

Additionally, as noted by the government, neither Officer Wright or defendant’s wife were present during the second interview. The involvement of these two women during the first interview was one of the main factors which led the Court to conclude that the first statement was coerced. Therefore, their absence during the second interview not only is a change in circumstances that supports a clean break, but also removes the main coercive circumstances that were present the day before.

Based on a review of the circumstances, the Court finds that defendant’s statement on August 9, 2007, was voluntary and that defendant knowingly and intelligently waived his right to remain silent. The Court is in agreement with Magistrate Judge Guyton’s recommendation which the Court adopts and incorporates into its ruling and the defendant’s objection is OVERRULED.

IV. CONCLUSION

For the reasons set forth herein, the Court ACCEPTS IN WHOLE the the Reports and Recommendations (“R & Rs”) entered by United States Magistrate H. Bruce Guyton on November 26, 2008 (“first R & R”) [Doc. 72] and February 2, 2009 (“second R & R”) [Doc. 81], defendant’s Motion to Suppress Confidential Marital Communication [Doc. 23] and his Motion to Suppress Defendant’s August 8, 2007 Statement as a Result of Law Enforcement’s Illegal “Save Jane” Ruse [Doc. 25] are hereby GRANTED, and defendant’s Motion to Suppress Defendant’s Statement to Officers after Request for Counsel [Doc. 24], his Motion In Limine to Exclude All Derivative Evidence Obtained Directly or Indirectly from Confidential Marital Communications Pursuant to Wong Sun v. United States and the Fruit of the Poisonous Tree Doctrine [Doc. 40], and defendant’s Motion in Limine to Exclude Defendant’s Second Statement [Doc. 76] are hereby DENIED.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

H. BRUCE GUYTON, United States Magistrate Judge.

All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for disposition or report and recommendation regarding disposition by the District Court as may be appropriate. This case is before the Court on the defendant’s suppression motions: Motion to Suppress Confidential Marital Communication [Doc. 23], Motion to Suppress Defendant’s Statement to Officers after Request for Counsel [Doc. 24], and Motion to Suppress Defendant’s August 8, 2007 Statement as a Result of Law Enforcement’s Illegal “Save Jane” Ruse [Doc. 25]. Also pending before this Court is the defendant’s related Motion In Limine to Exclude All Derivative Evidence Obtained Directly or Indirectly from Confidential Marital Communications Pursuant to Wong Sun v. United States and the Fruit of the Poisonous Tree Doctrine [Doc. 40],

The parties appeared before the Court for an evidentiary hearing on the suppression motions on October 30, 2007 [Docs. 36, 38]. This hearing was continued on December 11, 2007 [Docs. 43, 46]. At the conclusion of this hearing, the parties requested the opportunity to file post-hearing briefs, which were filed on February 25 and 29, 2008 [Docs. 50, 54], Also on February 25, the defendant filed a motion [Doc. 52] to reopen the evidentiary hearing on the basis of a recently discovered letter to the defendant that he believed implicated the truthfulness of prior testimony. The Court permitted [Doc. 56] the evidence to be reopened and held an additional evidentiary hearing on May 5, 2008 [Docs. 62, 69], The parties again asked to file post-hearing briefs [Docs. 66, 67], which were filed on June 13, 2008. On June 25, the Court ordered [Doc. 68] that the parties present oral argument on the motions. On August 13, 2008, the parties appeared and presented their arguments to the Court [Doc. 70]. The Court took the motions, evidence, briefs, and arguments under advisement on August 14, 2008.

I. PARTIES’ POSITIONS

The defendant is charged with fourteen counts of maliciously damaging and destroying government property while creating a substantial risk of injury to another and of setting fire to timber, relating to fires in the Cherokee National Forest on August 13, 2002 (counts 9-12), August 14, 2002, (counts 13-14), and March 31, 2007 (counts 1-8). The defendant seeks to suppress all evidence of [Doc. 23] or derived from [Doc. 40] confidential marital communications with his wife Ann Irons. He contends that certain recorded telephone conversations between him and Mrs. Irons are privileged because they were related to the reconciliation of their marriage. Moreover, he asserts [Doc. 40] that any evidence in this case that was obtained as a result of investigators listening to confidential marital communications must also be suppressed as “fruit of the poisonous tree.”

The government argues [Doc. 34] that the marital communications privilege is not applicable here because Mr. and Mrs. Irons were estranged at the time of the conversations. It also contends that the defendant waived the marital privilege with regard to the fires because he discussed them with a third party, Officer Jane Wright. Finally, it asserts that even if the marital communications privilege is deemed to apply in this case, Mrs. Irons can still testify to her observations of the defendant’s actions and appearance because the privilege extends only to spoken communication.

The defendant also challenges the admissibility of his August 8, 2007 statement given to forest officers on two grounds: (1) it was made without the benefit of counsel despite defendant’s request therefor [Doc. 24] and (2) he gave the statement because of the coercive tactics of the forestry agents [Doc. 25]. The defendant contends that upon his arrival at “the Blockhouse” following his arrest, he asked for an attorney. He maintains that the officers continued to question him, despite his clear request for counsel. The government responds [Doc. 29] that the defendant did not request counsel but executed a rights waiver and gave a sworn statement.

The defendant also argues that his statement was not voluntary but was, instead, the product of psychological coercion on the part of the forestry agents. In support of this contention, he asserts that prior to making his statement, he was arrested in a Wal-Mart parking lot with Forest Service Officer Jane Wright and was stunned with a Taser. He was then taken to a remote location (the Blockhouse), interrogated for one and one-half hours, and threatened that Wright would be arrested if he did not confess. He was then taken to another location, where officers threatened to arrest his handcuffed wife if he did not confess. His wife begged him to confess, and he was questioned for another one and one-half to two hours. The defendant maintains that his will was overborne by the totality of the circumstances surrounding his confession. While admitting that Officer Wright and Mrs. Irons were involved in a ruse to arrest the defendant, the government responds [Doc. 35] that the defendant’s statement was freely and voluntarily given.

II. FACTS

At the August 23, 2007 detention hearing, United States Forest Service Special Agent Kevin Bishop testified that the sixty-year-old defendant has lived in the Coker Creek Community outside of Tellico Plains his entire life. For the past twenty years, the area of the Coker Creek Community adjacent to the Cherokee National Forest has experienced a large number of forest fires. While most forest fires are “road/set,” which means they were set just off a road or trail, the majority of recent fires have been “walk/set,” in which someone walks into the woods and sets the fire. The defendant, who is very lean, fit, and a good walker, has been a subject of interest to the Forest Service for the last ten years. The defendant was first identified as a suspect in 1989, when Officer Otis Burden was investigating a fire near the defendant’s home and observed dogs follow a scent trial to within fifty yards of the defendant’s house.

Agent Bishop testified that in 2001, Forest Service Officer Jane Wright investigated a fire near the defendant’s residence and followed a trail created by someone walking through the woods. The trail led her to the back of the defendant’s residence, where she was confronted by the defendant. A couple of days later, the defendant asked her to return to his house and showed her bullet holes in two trees. The defendant told Wright that he had just bought a large caliber gun and that she needed to be careful because the gun could penetrate her vest. Later in 2001, Forest Service Officer Brian Webb investigated a suspected arson in the Mule Pen Gap area. He observed dogs follow a scent trail back to the vicinity of the defendant’s residence. In 2002, Webb investigated three fires called the Hawk fires and concluded they were the products of arson.

Agent Bishop testified that the defendant’s wife, Ann Irons, voluntarily cooperated with the Forest Service and reviewed a list of fires in which the defendant was a suspect. Mrs. Irons told the Forest Service that in August 2002, as she and the defendant were driving from their home to go on a vacation, she stopped the car near Natty Branch so that the defendant could relieve himself. The defendant walked up into the woods. While waiting on the defendant, she noticed a dead hawk by the side of the road. When they returned from their vacation four or five days later, she saw fire fighting activity in the area where they had stopped. She and the defendant heard about the Hawk fire on the scanner once they got back to their house. The defendant told her that he was surprised that it took so long for the fires to take off. In his statement, the defendant told agents that one fire he set on Hog’s Branch took nine days to start up and that it might have been the one he set when he and his wife went on vacation. Bishop stated that six counts of the present indictment related to the Hawk fires. Around the time of the Hawk fires, several structural fires occurred in the Coker Creek Community. The home of David Chapman, who lives behind the defendant, caught fire. Dogs tracked a scent trail back to the defendant’s residence where officers were confronted by the defendant.

Agent Bishop stated that in the spring of 2007, the Forest Service began covert surveillance around the defendant’s home. On March 31, 2007, Agent Oates saw the defendant picking up trash alongside the Lower • Smithfield Road. He was wearing faded blue jeans and a green t-shirt. Around 2:30 that afternoon, Oates saw the defendant walking secretively through the woods. The defendant, who was wearing the same faded blue jeans and green t-shirt and who was carrying a black backpack, was being very quiet and stopping every couple of steps to look around him. A short time later, the defendant went back toward the forest walking on an old wooded service road. Between 7:30 and 8:00 p.m. that day, a fire was reported just east of the area, which was the direction in which Oates saw the defendant headed. Oates had seen no one else in the area that day. Dogs tracked a scent trail from the point at which Oates had last seen the defendant to one of the five fires on the slope. The dogs veered off the service road twice, and the officers discovered two more fires, one was a “pretty good size” and one had not taken off. These three fires, which were named the Polecat fires, are charged in the indictment.

Agent Bishop testified that Mrs. Irons later told the Forest Service that in late March, she had returned from a trip to California and picked up the defendant at a prearranged location. She saw the defendant emerge from the woods near the Unicoi Gap area, wearing faded blue jeans and a green t-shirt and carrying a black backpack. On the way to the defendant’s truck, which was parked at her old home place, she saw that one of the fires had already taken off. She told the defendant that she was nervous about being caught. The defendant was surprised that one of the fires was already burning. In his statement, the defendant admitted driving to his wife’s old home place. He said that he walked along the old road and carried a backpack containing matches and four or five candles. He admitted setting three or four fires above the old road and some on Flint Ridge before he walked out of the woods near Unicoi Gap.

Agent Bishop stated that Officer Eddie Graves was conducting surveillance at the defendant’s home, when he saw the defendant shoot into the woods in front of his house with a high powered rifle. Graves reported that this occurred just after Graves had encountered the defendant in the woods. Graves saw the defendant take one shot and heard two others. The shooting occurred in the direction of a hiking trail near the defendant’s house. In a subsequent interview, the defendant acknowledged routinely shooting into the woods to scare off anyone that might be watching him.

Agent Bishop related that Mrs. Irons told the Forest Service that in the years since dogs had tracked the defendant back to their house, the defendant had changed his “tactics” and would drive or have her drive him to a location, from which he would walk into the woods. The defendant would have her pick him up at another location and return him to his vehicle. Mrs. Irons said the defendant would set fires with candles. She saw the defendant hiding candles in a firewood pile at her old home place. Agents later found sparklers but not candles at her homeplace. She has seen the defendant lighting candles in their home and timing how long it took them to burn. The defendant liked to use twelve-inch tapered candles, and she had bought hundreds of this kind of candle over the years. She said that the defendant admitted to her that he set fires when conditions were hot, dry, and windy. She said he would become anxious and upset and would want to go out and do something during these times.

Agent Bishop testified that the defendant had two state warrants for domestic violence arising out of an incident in which the defendant choked Mrs. Irons son on the porch and then threatened to kill her with a shotgun if she called the police. He also had a pending state charge for assaulting Mr. Dana Fagan with a stick because he believed that Fagan was talking about him setting fires in the community. Bishop stated that Mrs. Irons was concerned for her safety and the safety of her children. At the time of the detention hearing, Mrs. Irons was living in the house that she had shared with the defendant.

Agent Bishop testified that Officer Wright had a telephone conversation with the defendant on July 27, 2007. During that conversation, the defendant told Wright that if she came to arrest him, she would have to shoot him. He said that he would not be taken alive. He said that the older he got, the less he cared about dying. He also told her that he had thought about shooting himself or arranging for someone, like Wright, to shoot him. He admitted causing hundreds of fires in the woods and setting fire to about fifty houses in his lifetime. He told Wright that he started his first fire at age fifteen.

Agent Bishop stated that the defendant had admitted to both Agent Wright and Agent Russ Arthur that he had set forty or fifty structural fires. In an interview, the defendant admitted setting fire to the house of a Forest Service employee who was in charge of firefighting activity in that portion of the National Forest. The house had burned down at night and was occupied. The defendant called the employee and apologized. The defendant said he set the fire because he believed the employee was talking about him setting fires in the community. Bishop testified that the defendant said he set fires for revenge and when he believed someone was spreading rumors about him. The defendant also said he could not control when he set a fire.

Agent Bishop testified that the defendant was arrested in a Wal-Mart parking lot by Forest Service Agents accompanied by United States Marshals and local Monroe County Sheriffs deputies. The defendant exited his vehicle and was held at gunpoint. The defendant fidgeted with one of his hands in his pocket and did not readily obey commands from the marshals or agents. The defendant was stunned with a Taser in order to arrest him safely. A. 38 revolver was found in his pocket. Mrs. Irons had told the agents that the defendant always carries a gun.

On cross-examination, Agent Bishop testified that the defendant has had both of his knees replaced, has high blood pressure, and is on several medications. He stated that Mrs. Irons, who had left the defendant, told Bishop many of the statements he had attributed to the defendant in his testimony. Mrs. Irons was afraid of the defendant and decided to leave him after the incident on May 23, 2007, in which he threatened her with a shotgun. She called Officer Wright and Officer Brian Webb to warn them about going near their house because the defendant was dangerous and the situation was deteriorating. Bishop agreed that Mrs. Irons did not take out warrant against the defendant for the May 23 incident until August 3, ten weeks later. He acknowledged that the Forest Service used Mrs. Irons to make recorded telephone calls to the defendant in order to get him to admit to setting fires. The Forest Service had thirty-one recorded calls and messages involving the defendant. Bishop agreed that the defendant had denied setting fires many times during those calls. The defendant wanted his wife to come back home and stated in the telephone conversations that he would do anything if she would return. Although Mrs. Irons bought candles and drove the defendant to locations related to the fires, she was not charged. Bishop said that although there was an informal agreement with Mrs. Irons that in all likelihood she would not be charged, she had been informed in mid-July that she could be charged as a co-conspirator.

Agent Bishop stated that Officer Wright had several telephone conversations with the defendant and that she tried to get him to admit to setting fires. The defendant initiated the telephone calls to Agent Wright. Bishop agreed that the defendant and Wright had developed a friendship and that Wright was playing on that friendship to get the defendant to admit to the fires. He acknowledged that Wright had used the fact that the defendant wanted his wife to come home to try to get him to confess to starting fires.

Agent Bishop testified that approximately ten officers were present in the WalMart parking lot when the defendant was arrested. He said the defendant eventually took his hands out of his pockets and had nothing in his hands. A few moments later, the defendant did not comply with a command to get down, and a marshal stunned him with a Taser. The defendant then collapsed and was handcuffed. Officer Wright was present when the defendant was arrested and was also handcuffed. The officers wanted the defendant to believe that Wright was also in trouble and that he could save her career by confessing to the fires. The defendant was given the choice of being interviewed at the jail or at a roadside park outside of Madisonville. The defendant was taken to the park location and advised of his rights, and he signed a rights waiver. Two officers went to the interview. The defendant was interviewed for one and one-half hours. He was driven to see his wife, who was also handcuffed. Bishop said that Mrs. Irons told the defendant that she was in trouble and that “he needed to cooperate to help himself and help Ann and Jane.” The interview of the defendant continued after he met with his wife. The defendant gave two statements, one the day of his arrest and one the following day. Roughly six hours elapsed from the time the defendant was arrested until he arrived at the Blount County Jail.

Hope Olivia Roberts, the defendant’s daughter, testified that divorce papers for the defendant and Mrs. Irons were at her house. She said the defendant was going to come to her house to sign them the day he got arrested.

At the October 30, 2007 hearing, Russ Arthur, a Special Supervisory Agent for the United States Forest Service, testified that he met Ann Irons, the defendant’s wife, on July 12, 2007, when she approached the government about the defendant’s activities. She said that she wanted the defendant caught for the safety of her children and the community. Mrs. Irons told him that on May 23, 2007, the defendant had choked her son and threatened her with a gun. On May 25, she flew to Alaska. She returned home in June 2007 and stayed at the house she shared with the defendant from June 3 through June 13. She then returned to Alaska and contacted the Forest Service about the defendant. On July 12, she met with Arthur. Mrs. Irons told him that she was never with the defendant when he set fires but that after awhile, she knew what he was doing. She had purchased items to help the defendant and had driven him or picked him up on occasions when he had set fires. Arthur did not promise anything, including that she would not be prosecuted, to Mrs. Irons in return for her information. Mrs. Irons played telephone messages left on her cellular telephone from June 2 to July 12 by the defendant and Hope, the defendant’s daughter from a previous marriage, for Arthur.

Arthur testified that between July 18 and August 7, 2007, he listened in on telephone conversations between Mrs. Irons and the defendant. On July 27, 2007, he listened to a telephone call between the defendant and Forest Service Officer Jane Wright, in which the defendant admitted his involvement in wildfires and residential fires. On August 7, Officer Wright called the defendant and set up a meeting at Wal-Mart. The defendant was arrested between 10:15 and 10:30 a.m. on August 8, 2007. The Wal-Mart location had been chosen for officer safety because the defendant lived in a remote, wooded area and was known to shoot into the woods indiscriminately. Arthur also believed the manner in which they planned to conduct the arrest would provide a “psychological advantage for an interview.”

Arthur said that he met with the defendant and Agent Jenny Davis later that day outside Tellico Plains. Davis told him that she had Mirandized the defendant. Mrs. Irons was with Arthur and was in handcuffs. The defendant was allowed to talk with Mrs. Irons, and then Arthur interviewed the defendant again. He took the defendant into the woods so that the defendant could relieve himself, but the defendant was unable to do so. He also helped the handcuffed defendant get a drink of water from a stream. The defendant admitted to Arthur that he was bothered by setting fire to Forest Service employee Rex Kelly’s home and said that he would like to apologize to Kelly. Arthur called Kelly and allowed the defendant to talk to him.

Arthur stated that the defendant finished giving his statement to Agent Davis. The defendant was shown the statement, flipped through it, and pointed out an error to Davis. Davis corrected the error, and then the defendant signed the statement. The defendant was then taken to the Blount County Jail, where he was booked around 4:25 p.m. Arthur interviewed the defendant again at the Blount County jail the next morning at 8:00 a.m. before the defendant’s initial appearance. He asked the defendant whether he had hired an attorney, and the defendant said that he did not like attorneys. The defendant acknowledged that Davis had advised him of his rights the previous day. The defendant then gave a three-page statement and signed it.

On cross-examination, Agent Arthur testified that when he met with Mrs. Irons on July 12, she said that she and the defendant had not lived under the same roof since June 13. He agreed he had previously testified that Mrs. Irons had read books about the mind of a psychopath and had made suggestions about “investigative tools” to use with her husband. Arthur said prior to Mrs. Irons’ entry into the investigation, the Forest Service had evidence linking the defendant to over ten fires in the area based upon the similarities in the way in which the fires were set, similarities in the residences, two occasions in which dogs tracked the perpetrator back to the defendant’s house, and one visual track back to the defendant’s house. He described the defendant as having a “walk/set” method of setting fires, in which he would walk several miles from a road and set a fire that might not surface until hours or sometimes days after it was set. He agreed that despite this evidence, he was focused on getting an admission from the defendant.

Arthur testified that it was his idea, not Mrs. Irons’, to stage the arrest of Officer Wright. He believed that it was not improper to stage an arrest in order to obtain a confession. He said that Wright had a rapport with the defendant, and the defendant did not perceive her to be a threat. He explained that he engaged in the ruse of arresting Wright for many reasons, including to prevent the defendant from discovering his wife’s involvement in the case or how long they had been monitoring his calls and watching him. Prior to the arrest, Arthur had told Wright to pretend to be arrested and that she would be handcuffed. At the time of the arrest, Wright was handcuffed to give the appearance that she was in trouble and that the officers may have been monitoring her telephone conversations with the defendant. Part of the ruse was to allow the defendant to believe that he could help Wright. At the time of the arrest, numerous law enforcement officers were present with their guns drawn. The defendant was stunned with a Taser and fell to the ground.

Arthur testified that he chose Agent Davis to interview the defendant because she was “low-key, not very aggressive.” He directed Davis to give the defendant the option of making a statement at the jail or somewhere by the side of the road on the way to the jail because he wanted the defendant to feel comfortable. Arthur testified that he was with the defendant between 1:00 and 3:00 p.m. on the day of his arrest. He estimated that although the defendant was arrested around 10 a.m. and not booked until 4:25 p.m., the defendant was interviewed a total of only two to three hours over the course of that day. He agreed that part of his reason for exploiting the defendant’s paranoia and staging the arrest of Wright was to get the defendant to make a statement.

Arthur testified that the defendant was brought to him around 1:00 p.m. Mrs. Irons was there and handcuffed in order to cause the defendant to think that she might be arrested. He did not tell Mrs. Irons what to say to the defendant. She told the defendant that she had told the government everything she knew and that he should too. The defendant had told Arthur that he did not believe that his wife was under arrest. Mrs. Irons feared for her and her children’s safety, and Arthur wanted to give the defendant the impression that Mrs. Irons was also being arrested to protect her. Arthur agreed that part of the ruse was to have the defendant think that he had to help Wright and Mrs. Irons.

Arthur testified that after the defendant spoke with Mrs. Irons, Agent Davis continued the defendant’s interview in her vehicle. At one point, Davis and the defendant got out, and he helped the defendant get a drink of water and relieve himself. The defendant, who was handcuffed, lay on his stomach to get a drink from a stream. After this, the defendant became very open with Arthur. Arthur offered to get chicken and potatoes for the defendant from Tellico Pride. He did not advise the defendant of his Miranda rights, but he confirmed with Davis that she had reviewed the rights waiver with the defendant. The defendant was continuously handcuffed and was never free to leave. Davis wrote out the defendant’s statement, which was six handwritten pages long. She started writing out the statement at the Blockhouse and completed it in Arthur’s presence. He reiterated that the defendant signed it in his presence.

Deputy United States Marshal Warren Mays testified that he participated in the plan to arrest the defendant. During the planning session, he learned that the defendant was in good physical condition, was extremely savvy in the woods, commonly went armed, had made threats in the community, had possibly tried to intimidate those by whom he felt threatened, and had stated that he admired the events that occurred at Ruby Ridge and Waco. The officers planning the arrest decided to do it in a public location such as Wal-Mart for the safety of the community, the officers, and the defendant. The plan was to use Officer Jane Wright, a participant in the Forest Service’s undercover operation, to get the defendant to meet her at WalMart.

Deputy Marshal Mays testified that the defendant came to the Wal-Mart parking lot and was standing beside his car when Mays approached him. Mays, Arthur, Becky Gamble of the Knoxville U.S. Marshal’s Office, and a local Sheriffs Department captain attempted to surround him. Mays drew his weapon because the defendant’s right hand was gripping what appeared to be a handgun in his jeans. The defendant took a combative stance and appeared prepared to flee. Mays was twelve feet from the defendant and was wearing body armor with a badge on it. He identified himself as a law enforcement officer and told the defendant to show his hands. The defendant did not comply at first but removed his hands from his pockets and crossed them upon a second command. He told the defendant to get down, but the defendant did not comply. Mays gave Officer Kingsley the signal to stun the defendant with a Taser. Kingsley stunned the defendant once. The defendant was searched and handcuffed. Mays pulled the Taser barbs from the defendant, who said he did not need medical attention. The defendant appeared to be alright, so he turned the defendant over to Agent Arthur and the Forest Service.

On cross-examination, Mays agreed that he had a heightened sense of concern about the defendant because he had been told that the defendant had made comments relating to Ruby Ridge. Ten law enforcement members and four or five vehicles were involved in the arrest. He explained that a Taser fires a projectile into the skin of the individual through which an electric shock is administered. The electric shock causes the person to collapse. Based upon the pre-operation planning, he knew that the Forest Service agents planned to interview the defendant before taking him to the Blount County Jail.

Ed Kingsbury, an investigator with the Knoxville Police Department’s Organized Crime Unit, testified that he was present in the Wal-Mart parking lot for the defendant’s arrest on August 8, 2007. He was concerned about the defendant being armed and decided to stun him with the Taser once. When he left, the defendant seemed fine and was standing and talking. On cross-examination, he testified that he made the decision to use the Taser on his own, because the defendant would not show Deputy United States Marshal Mays his hands but, instead, crossed his arms in a combative stance.

Jenny Davis, a Special Agent for the United States Forest Service stationed in Asheville, North Carolina, testified that on August 8, 2007, she assisted in an arson investigation in Tellico Plains, Tennessee. After the defendant was arrested in a Wal-Mart parking lot, she and Officer Brian Webb placed the defendant in Webb’s vehicle. She offered the defendant water and granola bars, but he declined. She engaged in small talk with the defendant and told him she was friends with Officer Wright. The defendant agreed to be interviewed, and she asked him if he would rather be interviewed at the jail or a wooded location, the Tellico Blockhouse. The defendant chose the Blockhouse. The defendant asked if Wright were in trouble. She told him that Wright was potentially in trouble and had been arrested. She asked if he would agree to be interviewed with Wright, and he said that he would prefer to be interviewed with her.

Agent Davis testified that the defendant sat down under a shade tree, and around 11:00 a.m., she advised him of his Miranda rights from a form. She gave the form to the defendant to read, but he said he did not have his reading glasses. The defendant declined her offer to read the form again and said he understood his rights. He said he was willing to talk to her, but he did not want to sign the waiver form. She noted the defendant’s refusal to sign on the form and then began interviewing the defendant, who was sitting and later reclining across from her with Officer Wright beside him. The defendant was hesitant at first and asked whether Wright and Mrs. Irons were in trouble. She told him that Wright potentially faced criminal charges for obstruction of justice and that she had information that his wife had been aiding and abetting him in setting fires. She went over a list of fires with the defendant and told him that she believed that he had an emotional problem that caused this uncharacteristic behavior. The defendant was silent and whispered to Officer Wright at times but finally, he “broke down” and admitted that he had a problem with setting fires. Agent Davis asked the defendant to give her more details about the fires he had admitted to Officer Wright and his wife. After about one hour, she told him it was time to take him to the jail. Upon the defendant’s request, Officer Webb took him closer to the river to relieve himself.

Agent Davis testified that she and Webb offered the defendant water and a candy bar when he got back in their vehicle but that he declined. On the way to jail, Arthur radioed that he had arrested Mrs. Irons. Davis asked the defendant if he would like to see Mrs. Irons before he went to jail, and he said that he would. They met Arthur at Baker’s Grave Road around 1:00 p.m. The defendant and Mrs. Irons, who were both handcuffed, spoke for three to five minutes. The defendant agreed to continue his interview with Davis. Before she took the defendant to her car, Mrs. Irons told him that she had told the truth and she wanted him to do so too. The defendant told Davis that he had set the Spring Creek fire and hundreds of fires in the Cherokee National Forest along with forty structural fires. The defendant described using candles, box delay devices, and sparklers to set the fires.

Agent Davis testified that the defendant asked to use the restroom again and that Agent Arthur took him into the woods. When they returned, Arthur said the defendant had admitted to setting Forest Service employee Rex Kelly’s house on fire. The defendant wanted to apologize to Kelly so they drove to a bank parking lot where they had cellular telephone reception, and the defendant spoke with Kelly. During the drive, the defendant and Arthur talked about hunting. They returned to Baker’s Grave Road, where she finished writing out the defendant’s statement and read it to him. The defendant squinted as he looked over the statement. He told her to make a correction, and then she read the statement to him again. She asked the defendant if he would sign the rights waiver at that time, and he agreed. He initialed the waiver three times and signed it, and then he signed his statement.

On cross-examination, Agent Davis testified that she had worked for the Forest Service for seventeen years and that she was friends with Officer Wright. The defendant had seen officers handcuff Wright at Wal-Mart, and Davis told him that Wright was arrested. Her interview strategy was to lead the defendant to believe that the Forest Service had a strong case against him and that he needed to give a truthful confession in order to help himself during the sentencing phase. She agreed that she knew the defendant was having marital trouble. She had Wright brought to the interview scene because she knew that Wright and the defendant were close. She thought having a friend there would help the defendant to be open with her in the interview. At one point during the interview, Wright chastised her for making the defendant out to be a monster. Davis interviewed the defendant for approximately one hour, while he lay beside Wright and they were both handcuffed.

Agent Davis testified that when the defendant saw his wife, there were tears in his eyes. Davis believed that seeing his wife and hearing her encourage him to tell the truth brought the defendant to an emotional breaking point, even though earlier in the interview the defendant had told her that he thought a ruse was afoot. The defendant had already admitted setting fires, but after seeing his wife, he gave Davis more details. She completed the defendant’s statement around 3:00 p.m. She had written 11:03 a.m. on the rights waiver at the time that she initially advised the defendant of his rights, not when he initialed the waiver. The defendant refused to sign the waiver at first, but he signed it at the conclusion of the interview. At some point during the interview at the Blockhouse, the defendant placed an “X” on the signature block of the statement. She believed the defendant was “toying” with the officers at this point. The defendant told her he did not believe his wife or Officer Wright were in trouble.

The parties returned to continue the evidentiary hearing on December 11, 2007, and the government played a recording of a July 27, 2007 telephone conversation between the defendant and Officer Jane Wright. During the conversation, the defendant admitted that he had set hundreds of fires, including fires at houses. He told Wright that he carried a gun at all times and that if someone tried to arrest him, he would not be taken alive.

Special Agent Russ Arthur was recalled and testified that he met with Mrs. Irons on July 12 in a small conference room at a hotel across from the airport in Knoxville. He listened to the messages on her cellular telephone at that time. The recording of the conversation between Agent Wright and the defendant was made after this meeting.

The defense called Agent Jenny Davis, who testified that on August 8, 2007, the defendant left the Wal-Mart parking lot around 10:35 a.m. following his arrest. At the Blockhouse, she headed the paper on which she made handwritten notes with the time of 11:00 a.m. She advised the defendant of his rights at 11:03 a.m., as noted on the waiver. She noted that at 11:51 a.m., she began to write out the defendant’s statement. She agreed that it would have been inappropriate to interview the defendant before she advised him of his rights, and she testified that she did not do so.

Officer Jane Wright testified that she first met the defendant in 1998 when she was investigating a fire. In her capacity as a Forest Service officer, she had walked in the National Forest with the defendant two to five times between 1998 and around 2004. She said that during that time period, she encountered the defendant and Mrs. Irons frequently in the community or while she was working in the area of their house. She did not have any contact with the defendant from 2003 or 2004 until her telephone conversation on July 27, 2007. While Wright was on vacation in the summer of 2007, she received a telephone message from Mrs. Irons saying that Mrs. Irons urgently wanted to speak with her. Her investigation in this'case began after receiving that message. When she called Mrs. Irons back before Mrs. Irons’ July 12 meeting with Forest Service agents, Mrs. Irons forwarded messages that the defendant left on Mrs. Irons’ cellular telephone to Wright’s cellular telephone. The defendant called Wright on the morning of July 27, 2007, at his wife’s request. During that call, the defendant told her that he was having marital problems. She made a recorded call to the defendant later that day at Special Agent Arthur’s request. Several law enforcement officers and Mrs. Irons were present during the call.

Agent Wright testified that during the July 27 call, the defendant repeatedly asked her if the call was being recorded, and she denied that it was. She acknowledged that the defendant named other people, whom he said were setting fires. She agreed that the defendant had denied a number of the fires that she accused him of setting. Wright told the defendant that it would make his wife happy if he would be truthful.

Agent Wright testified that she was involved in the plan to arrest the defendant on August 8, 2007. Part of that plan was for her to pretend to be arrested at the time of the defendant’s arrest and to be handcuffed. The primary reason for faking her arrest was because it was the safest way to arrest the defendant. She was handcuffed and present lying beside the defendant during his interview at the Blockhouse, but she was not involved in the interview. When she first arrived at the Blockhouse, she heard Agent Davis read the defendant his rights. The defendant wrote an “X” on the rights waiver while she was there, but he did not want to sign it. She did not overhear the defendant ask for an attorney. She agreed that during the defendant’s interview at the Blockhouse, she told Agent Davis not to talk to the defendant like he was a bad person. She said that the defendant rolled over top of her so that he was between Agent Davis and her. The defendant whispered to her during the interview.

Wright stated that prior to the defendant’s arrest, the other officers did not talk with her about helping interview the defendant. It was Davis’s job to get a confession from the defendant, not hers. She did not ask the defendant any questions during the interview. Her presence at the Blockhouse was not part of a plan, and she would characterize her involvement there as “general patrol.” She did not know that Mrs. Irons was also going to pretend to be arrested.

On cross-examination, Wright agreed that the defendant was a strong-willed individual. The defendant appeared to understand the Miranda warnings when Agent Davis gave them to him. On redirect examination, Wright said that while they were at the Blockhouse, the defendant whispered to her that he loved her and would never say a word against her. She did not respond to this statement. She stated that during some of their telephone conversations, the defendant had talked with her about marriage and sex but that she had tried to avoid the topic.

Defendant John Wesley Irons testified that he was arrested on August 8, 2007. He was taken to the Blockhouse and as he got out of the vehicle, he asked Agent Davis if he could call his attorney. He said that Davis told him, “Not right now.” Davis never advised him of his rights. She asked him if he knew his rights, and he said, “Yes, I want to speak to an attorney.” He refused to sign the paper that Davis read to him.

On cross-examination, the defendant testified that on the way to the Blockhouse, Agent Davis and Agent Webb asked him if he had been setting fires, and he said, “No.” When they arrived, Agent Webb got out and went to the back of the vehicle. He was alone in the van with Davis when he asked for an attorney. Davis interviewed him in the middle of a field for thirty minutes, and then she asked him if he knew his rights. He said that he did and asked to call his attorney, but Davis ignored him. Officer Wright was present at that time. He talked with Davis for about one hour after that.

The defendant testified that he first saw the six-page statement attributed to him when his attorney showed it to him a month after his arrest. On the day of his arrest, he could not have seen it because he was not wearing his glasses. He agreed that the statement bore his signature but denied signing it. He believed that someone had forged his signature on the statement, commenting that the signature was a little sloppier than he writes. He did not know whether he made the “X” on the paper or not. He said that Davis told him to sign a paper, but he told her he did not want to sign it. When she continued to hold the paper out, he put an “X” on it to satisfy her. He asked for an attorney three times after his arrest: Twice on the day of his arrest and once the next day.

The government called Officer Larry Brian Webb in rebuttal. Officer Webb testified that he arrived on the scene shortly after the defendant’s arrest on August 8, 2007. His job was to transport the defendant to the interview location and then on to the jail. He was in the vicinity of Agent Davis while she interviewed the defendant, and he never heard the defendant ask for an attorney. After the interview and while en route to the Blount County Jail, Webb called Pretrial Services Officer Twilla Tucker, who asked if the defendant wanted an attorney. Webb asked the defendant, and the defendant said he did not think he needed an attorney and he did not like attorneys. Around 8:00 a.m. the next morning, Webb heard the defendant say that he did not trust attorneys and did not think they were useful.

On cross-examination, Officer Webb testified that earlier that day, he had suggested the Blockhouse as a possible location for the interview. Officer Jane Wright was part of the interview process but was not on general patrol as the Blockhouse was not inside the National Forest. He was never at a briefing with Wright in which her role during the interview was discussed. At the Blockhouse, Wright and the defendant were reclining by a tree within a foot of each other. Wright and the defendant had their heads turned toward each other and appeared to be talking. During ninety-five percent of the interview, he stayed in the truck to make sure that the public did not intrude on the interview. The defendant did not seem emotional.

At the May 5, 2008 hearing, Ann Irons testified that she and the defendant had been married for nine years. In June and July of 2007, she did not take any legal action to affect her marital status, although she was told by Hope Roberts, the defendant’s daughter, that divorce proceedings were underway. D