569 F.2d 482 (9th Cir. 1978), 76-2241, United States v. Rodriguez-Gastelum

Docket Nº:76-2241.
Citation:569 F.2d 482
Party Name:UNITED STATES of America, Appellee, v. Guadalupe RODRIGUEZ-GASTELUM, Appellant.
Case Date:January 30, 1978
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 482

569 F.2d 482 (9th Cir. 1978)

UNITED STATES of America, Appellee,


Guadalupe RODRIGUEZ-GASTELUM, Appellant.

No. 76-2241.

United States Court of Appeals, Ninth Circuit

January 30, 1978

As Amended Feb. 23, 1978.

Page 483

Frank R. Zapata, Asst. Federal Public Defender, Tucson, Ariz., for appellant.

Stephen D. Dichter, Asst. U. S. Atty., Tucson, Ariz., for appellee.

Appeal from the United States District Court for the District of Arizona.


WRIGHT, Circuit Judge, with whom TRASK, CHOY, WALLACE, SNEED and KENNEDY, Circuit Judges, concur:

We took this case en banc to consider whether a suspect in a criminal investigation can waive his right to counsel after having initially made known his desire to have the assistance of counsel. We hold that a per se rule prohibiting such a waiver is neither necessary nor appropriate.

Rodriguez-Gastelum made incriminating statements after he was stopped while driving an automobile loaded with marijuana. 1 He was proceeding toward Tucson in a vehicle which had been under customs surveillance in a Nogales, Arizona, parking lot. Customs Officer Treto approached and advised appellant of his rights in both English and Spanish. Appellant responded that he understood his rights and had no objection to answering the officer's questions.

Treto asked who owned the car, and appellant said that he did not know. In response to further questions, appellant said that he was a mechanic delivering the car to Tucson. Treto then asked appellant to open the trunk. Appellant "appeared very nervous" and refused. At this point, Treto placed appellant under arrest and took him to the Drug Enforcement Administration (DEA) office for further questioning by Officer Brown.

For what followed, we quote from Officer Brown's testimony:

I told him that I would read his rights to him again, which I did in Spanish. At the end of the reading of these rights, the final question is, "Do you understand the rights?" And he said, "Yes, I understand, but I don't have money to pay for an attorney." I explained to him again that in that case, the Court here in Tucson would provide him an attorney.

I then asked him if he wanted to talk about what he had, and he said, "Okay, okay, but with an attorney." And I said, "Do you want to talk to me now without any attorney?" And to that he said, "That's fine."

Page 484

Appellant then made incriminating statements which were received in evidence at his trial. On appeal, he contends that his request for an attorney was disregarded and that Officer Brown's continued questioning deprived him of his Sixth Amendment right to the assistance of counsel.

The first issue is whether appellant's response, "Okay, okay, but with an attorney," was sufficient to invoke the protection of the Fifth Amendment and Sixth Amendment rules first announced in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and expanded in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Although we disagree as to the resolution of this issue, 2 our disposition of the second issue on appeal makes that disagreement unimportant. For purposes of this opinion, we assume that appellant's response was sufficiently clear to trigger the constitutional protection demanded by Escobedo and Miranda.

The second question is whether appellant's answer, "That's fine," to Officer Brown's clarifying question (whether appellant wanted to talk with him then without an attorney) constituted an effective waiver of his prior request for assistance of counsel.

Under Miranda, all questioning must stop once counsel has been requested. While we have little difficulty with that basic principle, the situation is more complex when the interrogation ceases, only to be resumed after an alleged reconsideration by the suspect.

The factual patterns vary. At times the accused talks to the same officer who gave him the Miranda warnings. Or he may talk to another officer who has a different style, personality, and approach. Sometimes the suspect talks to an undercover agent believing him to be a fellow in crime. Or the Miranda warnings are forgotten or ignored both by the prisoner and the officer. 3

The question is not quite so difficult when the interrogating officer is uncertain as to the intention of the suspect, as was Officer Brown, and seeks only a clarification. That is the situation now before us. 4

Counsel look to two recent Supreme Court cases for support for their respective positions. In Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the Supreme Court held that a suspect who has chosen to remain silent with reference to questions about one crime can, after a renewed Miranda warning, be questioned about another crime. Last term, the Court held that a prisoner who had been arraigned and who had an attorney appointed could not be interrogated in the absence of his counsel. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).

Both sides in the case at bar claim too much for these cases. Mosley held only that a suspect who has been properly advised of his rights, and who has invoked his right to silence, but not his right to counsel, can use his own judgment in talking to officers about other crimes if he is advised of his rights before each interrogation.

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Brewer expressly refrained from holding that a prisoner could never waive his right to counsel once asserted. 430 U.S. at 403-04, 97 S.Ct. 1232. The case held only that in the circumstances shown in that record there had been no such waiver. Brewer does teach, however, that the burden is greater when the government attempts to show a waiver after the right to counsel has been asserted than when the government attempts to show a waiver of the right to remain silent. 430 U.S. at 405 & n. 10, 97 S.Ct. 1232.

This circuit has not been consistent in its decisions on cases involving waiver of an asserted right to counsel. 5 In United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976), cert. denied sub nom. Inciso v. United States, 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546 (1977), a panel found an implied waiver less than half an hour after the right to counsel had been explicitly asserted.

In Pheaster, FBI agents gave Miranda warnings. The defendant asked for an attorney and refused to answer questions. In a car en route to the county jail, an agent engaged in a "firm," "one-way conversation" with the defendant, primarily involving a recitation of the evidence against him. Intermittently, the agent asked where the kidnapping victim was being held. Upon hearing that a fingerprint on one of the notes had been positively identified as his, the defendant admitted his complicity and then cooperated with the agents.

The panel recognized a "key distinction between questioning the suspect and presenting the evidence available against him." 6 544 F.2d at 366. The court noted that other panels of this and other circuits have relied on the same distinction in finding a waiver of asserted Miranda rights. See United States v. Davis, 527 F.2d 1110 (9th Cir. 1975); United States v. Hodge, 487 F.2d 945 (5th Cir. 1973).

The court also found "instructive" the Supreme Court's treatment of a "closely-related question" ("the effect of a suspect's indication that he desires to remain silent") in Michigan v. Mosley, supra :

In Mosley the Court rejected a literal interpretation of Miranda, holding that the exercise of the right to remain silent does not preclude all further questioning. Rather, in the context of the particular facts of Mosley, the Court held that a confession made two hours after Mosley had indicated his desire to remain silent was admissible. . . . Although the specific holding in Mosley is not direct precedent for the resolution of this appeal, Mosley does indicate both a recognition that the procedure set out in Miranda is not as clear as the language of that opinion might suggest and a willingness to import a greater degree of flexibility in the application of Miranda to varying factual situations.

544 F.2d at 367. While "import(ing) a greater degree of flexibility (and realism) in

Page 486

the application of Miranda," the panel recognized that "(t)he Government, of course, 'bears a heavy burden . . . to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to . . . counsel. Miranda...

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