U.S. v. Brown

• Decision Date: 08 March 1978
• Docket Number: No. 75-2484,75-2484
• Citation: 569 F.2d 236
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mary Cullar BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 236

569 F.2d 236

UNITED STATES of America, Plaintiff-Appellee, v. Mary Cullar BROWN, Defendant-Appellant.

No. 75-2484.

United States Court of Appeals,

Fifth Circuit.

March 8, 1978.

Louis M. Jepeway, Jr., Miami, Fla., for M. Brown.

Michael P. Gale, Elliot S. Shaw, Miami, Fla., for E. Brown.

Jacob V. Eskenazi, U. S. Atty., J. Daniel Ennis, Asst. U. S. Atty., Miami, Fla., Sidney M. Glazer, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States Court of Appeals for the Southern District of Florida.

Before BROWN, Chief Judge, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, SIMPSON, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL and FAY, Circuit Judges.

BY THE COURT:

This case presents two questions for our review. The first is whether Mary Cullar Brown had a right to counsel at the time incriminating statements were obtained from her while in the county courthouse enroute to her state preliminary hearing. The second question is whether or not she voluntarily and knowingly waived that right, if it existed. Since we find a clear intelligent waiver of counsel, it is unnecessary for us to answer the first question. The conviction is affirmed.

Mary Cullar Brown and three others, Edwin Richard Brown, Phyllis Diane Brown, and Marion Williams, were charged by a grand jury in a four count indictment. The first count charged that all four conspired between August 7, 1974, and August 13, 1974, to unlawfully steal and possess Sears Merchandise Certificates having a value in excess of $100 which were part of an interstate shipment, in violation of 18 U.S.C. § 659, and alleged several overt acts performed in furtherance of that conspiracy in violation of 18 U.S.C. § 371. Counts II and III did not name defendant, Mary C. Brown, who is the appellant before this court. Count IV charged Mary C. Brown and Phyllis Brown with knowingly possessing Sears Merchandise Certificates valued at more than $100 which had been stolen while part of an interstate shipment, in violation of 18 U.S.C. §§ 659, 2.

The district court denied, among others, Mary Brown's motion to suppress evidence derived from her courthouse interview with the F.B.I. agent. All four defendants were tried together and all were convicted and sentenced. Mary C. Brown and Edwin Richard Brown appealed to this court on numerous grounds and a three-judge panel, after oral argument, reversed Mary C. Brown's conviction and affirmed Edwin Brown's. United States v. Brown, 551 F.2d 639 (5th Cir. 1977). We granted the Government's petition for rehearing en banc as to Mary C. Brown and heard oral argument. The court en banc reverses the panel decision and affirms the conviction of Mary C. Brown by the district court.

The facts are discussed extensively in the panel decision and the dissent. United States v. Brown, 551 F.2d 639 (5th Cir. 1977). For the purposes of this opinion we will only repeat those facts germane to the issue before us.

Defendant and co-defendant Phyllis Brown, were questioned at Sears, Roebuck & Co., Miami, Florida on August 9, 1974, by the store security personnel for attempting to purchase merchandise with invalidated Sears Merchandise Certificates. After being read their Miranda ¹ rights, they told the security guard that they found the certificates while shopping in the basement of Richards Department Store in Miami, Florida. Later that day the two were taken into custody by Miami police officers and again read their Miranda rights.

After spending the night in jail, Mary C. Brown and her daughter were released on bond. At the bond hearing on August 10, 1974, the state public defender was appointed to represent her.

On August 14, 1974, on the way to her scheduled state preliminary hearing ² both

Mary C. Brown and her daughter were intercepted by two F.B.I. agents in the corridor outside the courtroom. Upon intercepting Mary Brown, Agent Parga identified herself, and explained they wished to ask some questions concerning the Sears Merchandise Certificates. Full Miranda warnings were read to Mary Brown as follows

Before we ask you any questions, you must understand your rights.

You have the right to remain silent.

Anything you say can be used against you in court.

You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning.

If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.

If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.

After this reading, Agent Parga had Mary Brown read and sign the following waiver:

WAIVER OF RIGHTS

I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. 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.

During the questioning that followed, Mary C. Brown denied that Edwin Brown was related to her. At trial, birth certificates were introduced showing that Edwin Brown and Phyllis Brown have a mother by the same name, Mary Elizabeth Cullar.

The defendant relies on Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) for the proposition that once the criminal process shifts from investigatory to accusatory she cannot be interrogated by the government unless her attorney is notified. She states Massiah too broadly. Massiah arose because of "secret interrogation" accomplished surreptitiously and has no relationship to the facts present here. This interrogation took place in a public corridor with full identification of the individuals and subject matter discussed. Because we find Mary Brown made a clear and voluntary waiver of any right to counsel, we are not going to decide whether the right to counsel attached under the facts of this case.

A voluntary waiver of the presence of counsel is recognized by this circuit. In a case very similar to the one at bar, United States v. Vasquez,476 F.2d 730 (5th Cir. 1973), the defendant was in custody in a Florida county jail on a state charge of murder when an F.B.I. agent came to question him about an M-14 rifle that had been seized in connection with a recent shooting. Vasquez was advised of his rights including the right to the presence of counsel. He waived that right and agreed to discuss the rifle (not the shooting) with the F.B.I. agent. Vasquez was represented by appointed counsel on the state charge. He was subsequently charged and convicted of the federal crime of possession of an unregistered firearm. This court affirmed that conviction stating:

In this case where the defendant was carefully apprised of his right to have counsel, there is no merit in the contention that the defendant was unable to waive that right.

The district court found that Mary Brown waived her right to the presence of counsel and thereafter made a voluntary statement to the F.B.I. agent. The standard to be applied in determining the question of waiver under federal constitutional law is that the government must prove "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938).

Mary Brown had a college education having attended Florida Memorial College in St. Augustine, Florida, for four years. She worked as an elementary school teacher for thirteen years. In the days before she made the statement she had been advised of her rights by the Sears security guard and the Miami city police. The F.B.I.'s Miranda warnings were read to her by the agent and given to her to read and sign. The trial judge found that Mary Brown understood these rights and under the clearly erroneous standard for review this finding was proper.

Mary Brown made a clear and unequivocal waiver of any right she may have had to the presence of counsel. She knew she had appointed counsel on the state charges and at the time of the questioning was on her way to meet with him. Even though the F.B.I. agent assumed Mary Brown had counsel, we do not mandate that Miranda warnings include a specific question naming counsel and an asking if he or she wants that particular attorney present. Under the facts of this case the Miranda warnings were sufficient, when dealing with a well-educated teacher, to make clear that "an attorney" includes the state public defender already appointed. ³

Our decision in this case does not reduce the shock we felt upon learning of the F.B.I.'s choice of location to interview the defendant. Nothing in the record indicates that Mary Brown could not have been interviewed at her residence or at some location other than that selected. The time and place of this meeting seems most inappropriate. It was a public corridor, however, and not a forced or custodial interrogation.

On the facts of this case the court below correctly refused to suppress the statements obtained from Mary Brown. We therefore affirm the conviction. The panel was presented two other issues asserted by Mary Brown and two by Edwin Brown. In this en banc decision we are not disturbing the conclusions made by the three-judge panel on those issues in any manner.

JAMES C. HILL, Circuit Judge, concurring.

My concurrence in our majority opinion is not qualified. I concur.

We have, though, the very thoughtful and earnest dissent prepared by Judge Simpson, joined by Judges Goldberg, Godbold, and Morgan. It appearing to me that the dissent is largely from something not held by our majority, I tender these few additional lines.

I do not view the Supreme Court's holding in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), referred to by the dissenters, and our Circuit's earlier decision of ...