435 F.2d 354 (7th Cir. 1970), 17935, United States v. Crisp

Docket Nº:17935.
Citation:435 F.2d 354
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Donald Roy CRISP, Defendant-Appellant.
Case Date:November 10, 1970
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 354

435 F.2d 354 (7th Cir. 1970)

UNITED STATES of America, Plaintiff-Appellee,

v.

Donald Roy CRISP, Defendant-Appellant.

No. 17935.

United States Court of Appeals, Seventh Circuit.

November 10, 1970

Rehearing Denied Jan. 11, 1971.

Page 355

[Copyrighted Material Omitted]

Page 356

Robert H. Friebert, Milwaukee, Wis., for defendant-appellant.

David J. Cannon, U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before HASTINGS, Senior Circuit Judge, and FAIRCHILD, and CUMMINGS, Circuit Judges.

CUMMINGS, Circuit Judge.

After a jury trial, defendant was convicted of the July 26, 1967, armed robbery of the Bank of Greenfield in Greenfield, Wisconsin, and received a 15-year prison sentence. 1 Defendant does not challenge the sufficiency of the evidence upon which his conviction rests. Instead, he asserts that several errors during the course of that trial require a reversal.

I

Defendant first contends that the trial court improperly admitted into evidence false exculpatory statements and admissions which he gave to the Federal Bureau of Investigation while incarcerated in Craig, Colorado. On September 1, 1967, FBI Agent Roy M. Hickman interviewed defendant there concerning an unrelated offense. Hickman read defendant the FBI's waiver of rights form, which was executed by defendant. He then gave Hickman a signed statement with respect to a stolen car charge. Hickman knew that there was a warrant pending against defendant for the Greenfield bank robbery and asked defendant about it. Defendant said he was not willing to discuss any bank robbery, but that he had no objection to discussing the circumstances surrounding his activities before and after the Greenfield robbery. He then made the statements which were introduced at his trial.

Even after an initial waiver of constitutional rights by the suspect, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, strictly circumscribes the scope of permissible custodial interrogation:

'Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.' 384 U.S. at pp. 473-474, 86 S.Ct. at p. 1627.

Where, as here, custodial interrogation proceeds without the presence of defense counsel, the Government bears a 'heavy burden' of demonstrating that the suspect's constitutional rights have been respected. 384 U.S. at p. 475, 86 S.Ct. 1602.

The record clearly reveals that defendant Crisp invoked his Fifth Amendment privilege when the questioning turned to the Greenfield bank robbery. The testimony of Agent Hickman

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shows that he asked Crisp about the bank robbery and that Crisp, in response, said that 'he was unwilling to discuss any activities on his part concerning the bank robbery or any bank robbery in which he might have been involved.' 2 Despite this seemingly unequivocal assertion, Agent Hickman did not scrupulously observe the suspect's privilege of silence, for he continued his interrogation concerning the Greenfield robbery by asking the suspect 'if he was willing to discuss the circumstances surrounding his activities before and after the bank robbery.' Defendant reportedly assented to the request and the questioning proceeded.

Both the letter and spirit of the Supreme Court's decision in Miranda call for condemnation of even this seemingly innocuous police conduct. The procedural safeguards imposed in that case were premised upon the observation that custodial interrogation in the absence of defense counsel is inherently intimidating and destructive of free enjoyment of the constitutional privilege against self-incrimination. To be effective, those safeguards must be fully observed, and the rights of the suspect must be jealously guarded. Not even the slightest circumvention or avoidance may be tolerated. The rule that interrogation must cease, in whole or in part, in accordance with the expressed wishes of the suspect means just that and nothing less. Once the privilege has been asserted, therefore, an interrogator must not be permitted to seek its retraction, total or otherwise. Nor may he effectively disregard the privilege by unreasonably narrowing its intended scope.

In this case, close scrutiny of the testimony of Agent Hickman fails to demonstrate a justification for his persistent inquiries concerning the role of defendant Crisp in the Greenfield robbery. There is no suggestion that Crisp's refusal to discuss this or any other bank robbery was in any manner ambiguous as to the extent of his intended silence. Nor does it appear that Crisp voluntarily and spontaneously invited, either explicitly or implicitly, further discussion of the Greenfield bank robbery or subsequently contracted the range of matters which he wished to exclude from questioning. Cf. Land v. Commonwealth of Virginia, 176 S.E.2d 586 (Va.1970). There is no pretense that the 'circumstances surrounding his activities before and after the bank robbery' bore relevance to any other matter than the instant indictment. From this record, we can only conclude that the inquiry into Crisp's willingness to discuss these matters in the face of his clear statement that he did not wish to discuss any bank robbery amounted to an impermissible attempt to hedge his initial assertion of his right to silence on that matter. Cf. United States v. Barnhill, 429 F.2d 340 (8th Cir. 1970).

II

Defendant further objects that the court improperly admitted an oral confession given to FBI agents while he was incarcerated in the Kenosha County Jail in Kenosha, Wisconsin. On December 18, 1967, FBI Agent Jack D. Wood was contacted by the office of the United States Marshal or by Assistant United States Attorney Franklyn M. Gimbel, who stated that defendant wished to speak to a representative of the FBI. After their arrival at the Kenosha County Jail, a deputy sheriff also told Wood and his associate, Agent Gayle E. Rogers, that Crisp wanted to talk to them. Upon arrival at his cell, the agents read the waiver of rights form to defendant, who declined to sign the form but told them he understood his rights, was represented by counsel, and nevertheless wanted to talk to them. Defendant did not request the presence of his counsel. He told the agents that he, John Kwitek, David Kwitek, Roy Huck and Harold Timm had committed the Greenfield bank robbery. He stated that he did

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not wish to furnish any further details until this information was given to the Assistant United States Attorney. Crisp also requested a transfer to the Waukesha County Jail.

Defendant contends that his oral confession to FBI Agents Wood and Rogers was taken in violation of his Fifth and Sixth Amendment rights because they did not contact his appointed attorney before the interview in the Kenosha County Jail although they admittedly knew his identity.

Crisp asserts first that his refusal to sign the FBI waiver form is fatal to the Government. That form supplies evidence of waiver, and a refusal to sign such a form may be a relevant factor in determining the validity of an asserted waiver in light of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Cf. United States v. Nielsen, 392 F.2d 849 (7th Cir. 1968). Miranda does not, however, require such a written indication of waiver as the sole means of proving that fact. Klingler v. United States, 409 F.2d 299, 308 (8th Cir. 1969), certiorari denied, 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110. Here the interview was conducted at the express request of defendant Crisp who persisted in his expressed desire to pass information to the Assistant United States Attorney even after having been informed of his rights and regardless of the absence of his attorney. Cf. Arrington v. Maxwell, 409 F.2d 849, 853 (6th Cir. 1969), certiorari denied, 396 U.S. 944, 90 S.Ct. 381, 24 L.Ed.2d 245.

Defendant further claims that the interrogation proceeded in violation of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, because it took place after his indictment without the presence of defense counsel. Relying upon Hancock v. White, 378 F.2d 479 (1st Cir. 1967), and United States ex rel. O'Connor v. New Jersey, 405 F.2d 632 (3d Cir. 1969), certiorari denied sub nom. Yeager v. O'Connor, 395 U.S. 923, 89 S.Ct. 1770, 23 L.Ed.2d 240, Crisp urges that the Supreme Court's per curiam reversal in McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, 14 L.Ed.2d 682, of State of Ohio v. McLeod, 1 Ohio St.2d 60, 203 N.E.2d 349, compels the conclusion that Massiah rendered inadmissible per se incriminatory statements made to Government agents after an indictment without the actual presence of defense counsel. While Massiah may not be confined to circumstances of surreptitious post-indictment interrogation, we decline to read into McLeod any holding that after indictment, a defendant may never effectively waive his right to counsel. See United States v. De Loy, 421 F.2d 900, 902-903 (5th Cir. 1970); ...

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