574 F.2d 1362 (5th Cir. 1978), 77-5051, United States v. Hernandez

Docket Nº:77-5051.
Citation:574 F.2d 1362
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Evasio HERNANDEZ, a/k/a, Eduardo Gonzalez, Defendant-Appellant.
Case Date:June 16, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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574 F.2d 1362 (5th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,


Evasio HERNANDEZ, a/k/a, Eduardo Gonzalez, Defendant-Appellant.

No. 77-5051.

United States Court of Appeals, Fifth Circuit

June 16, 1978

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[Copyrighted Material Omitted]

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Jeffrey S. Weiner, Miami, Fla., for defendant-appellant.

J. V. Eskenazi, U. S. Atty., R. Jerome Sanford, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before BROWN, Chief Judge, RONEY and FAY, Circuit Judges.

JOHN R. BROWN, Chief Judge:

After a jury trial Evasio Hernandez was convicted of conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C.A. §§ 841(a)(1), 846 (Count II of the indictment). The jury also convicted Hernandez of possessing marijuana with intent to distribute in violation of 21 U.S.C.A. § 952(a) and 18 U.S.C.A. § 2 (Count IV of the indictment). Hernandez was given a three-year sentence on each count with the terms running consecutively. On appeal Hernandez contends that his Fifth and Sixth Amendment rights were violated by a custodial police interrogation which produced inculpatory statements admitted into evidence at trial. We reverse the conviction.

The Counts

On June 24, 1976, the government indicted Hernandez together with Norberto Acosta, Pedro Otto Ramirez, and Jose Pedro Perez. Count I of the indictment charged the four defendants with violating 21 U.S.C.A. §§ 952(a), 963 by conspiring to import marijuana. Count II of the indictment charged the defendants with conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C.A. §§ 841(a)(1), 846. Count III charged the defendants with transporting marijuana in violation of 21 U.S.C.A. § 952(a) and 18 U.S.C.A. § 2. Count IV charged the defendants with possession of marijuana with intent to distribute in violation of 21 U.S.C.A. § 841(a)(1) and 18 U.S.C.A. § 2. Count V charged that the defendants unlawfully carried and possessed firearms during the commission of the above marijuana related felonies in violation of 18 U.S.C.A. § 924(c).

On October 14, 1976, the four defendants appeared for trial. After the government rested, the motions of defendants Acosta and Ramirez for a severance were granted. 1 The case was submitted to the jury as to only defendants Hernandez and Perez. This appeal involves only Hernandez's conviction, 2 and we concentrate on those facts pertinent to appellant's constitutional claims.

The Crime

On the evening of January 30, 1976, officer Robert Murrhee of the City of Coral

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Gables Police Department was on patrol in a water front area of the city called "Gables by the Sea". Officer Murrhee testified that he regularly patrolled the area. Shortly after midnight, January 31, 1976, he observed a Ryder Rental Truck backed up to the guard rail at Belle Vista Point, an area of dense mangroves and swamp adjacent to a canal and bay. The officer parked his patrol car, asked for a backup unit, and proceeded to the cab of the truck. Although no one was in the vehicle, he noticed the distinct odor of marijuana.

Approaching the rear of the truck, officer Murrhee heard the sound of several people running, possibly six or more, and he pursued them. As Murrhee ran he observed several large piles of marijuana, later determined to be an amount of approximately 23 tons. He ran until he reached a mangrove head and noticed three men lying down. He called, "halt, police", and all three lunged for him forcing him to fire a shot. Appellant Hernandez yelled, "I give up, don't shoot," and the three men came out with their hands up. Murrhee arrested the appellant along with the other two men, Acosta and Ramirez. Officer Murrhee detected a distinct smell of marijuana on their person.

Testimony about what transpired following Hernandez's arrest is often conflicting and confusing. Accordingly, before launching into a detailed description of the evidence, we briefly sketch the facts as disclosed by the uncontested portions of the record. The record clearly supports the trial judge's finding that the police gave Hernandez his Miranda rights 3 "on at least three occasions and perhaps four." It is equally clear that on each occasion Hernandez declined to speak thereby repeatedly invoking his right to remain silent. Hernandez first refused to speak immediately after his midnight arrest when officer Murrhee informed Hernandez of his Miranda rights. Approximately five hours later, after a lengthy confinement in a police wagon at the scene, Hernandez was transported to the police station where, according to the trial judge's findings, he again was given his Miranda rights and the police attempted to interrogate him at least two, and perhaps three times more. Within 45 minutes after his arrival at the station house the police succeeded in eliciting incriminating comments from Hernandez.

A more detailed investigation of the record reveals the following. 4 Officer Murrhee testified that he simultaneously gave all three suspects their Miranda warnings

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at the scene upon their arrest. Upon cross-examination, officer Murrhee affirmatively acknowledged that Hernandez declined to make any statement at that time. 5. Hernandez, however, testified that he asked to see a lawyer after Murrhee gave him his rights. Hernandez then stated that there was no further conversation.

It is undisputed that the three suspects were then confined in a police wagon at the scene. Even though the station house was minutes away, the suspects remained confined in the close quarters of the police wagon for approximately five hours. After this lengthy confinement, Hernandez arrived at the station house about 5:00 a. m. in the morning.

According to Hernandez, shortly after he arrived at the station officer Murrhee again informed him of his rights and attempted to elicit conversation. During this interrogation, Murrhee asked whether Hernandez had a record. Hernandez responded that he was on three years probation. At that point Hernandez stated that, in exchange for cooperation, Murrhee offered "to try to keep me on probation because my probation officer was a Coral Gables police officer and he was going to try to do the best for me in court and on my probation." Hernandez testified that he again declined to talk and again requested counsel. 6

The testimony by Hernandez about his second interrogation session went unchallenged. Officer Murrhee who had testified earlier, was not called upon by the prosecution to refute Hernandez's version of the facts.

Hernandez further testified that the police attempted yet another interrogation about 15 minutes after the second attempt. Hernandez stated that he was brought into a room occupied by an officer Maloy, officer Murrhee, and several other officers, he was again given his Miranda rights, and officer Maloy urged Hernandez to cooperate in exchange for help in Court. Hernandez testified that he again repeated his desire to see an attorney and said nothing more.

During his testimony, officer Maloy confirmed that he had interrogated Hernandez. He testified that he had first given Hernandez his Miranda rights, in both English and Spanish, and that Hernandez stated that he understood his rights. 7 Maloy also confirmed that several officers, including officer Murrhee, were present during the questioning session. Maloy admitted that he knew that Murrhee had previously given the Miranda warnings to Hernandez. Maloy further testified that he didn't know whether Hernandez had elected to give a statement or to remain silent. Similarly, officer Maloy did not know whether Murrhee had talked to Hernandez again between the midnight arrest and Maloy's interrogation.

Maloy testified that during this interrogation session Hernandez made certain incriminating statements. Hernandez admitted that he was hired by Luis Valdez to help unload some marijuana; that he didn't know Valdez well; that he was to receive $5,000 plus some marijuana for his help; and that Valdez just called him and asked if

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he wanted to make some money. Maloy maintained that there was no discussion about Hernandez's probationary status. Finally, Maloy testified that Hernandez, after making his oral statements, refused to sign a written statement and requested an attorney.

Hernandez testified that it was not until a fourth interrogation effort some 30 minutes after Maloy's interrogation that he finally answered questions. Hernandez stated that another officer approached him, gave him his rights, and induced him to speak through promises of leniency and nonrevocation of his probationary status. Even after giving his oral statements, Hernandez refused to sign a written statement. Hernandez testified that three or four officers, including officer Murrhee, were present at the session which produced the inculpatory statements.

After hearing the conflicting testimony, the District Court ruled that the oral statements would be admitted into evidence. In arriving at his decision, the District Court found as a fact that Hernandez was given his warnings on "three and perhaps four separate occasions by the police officers prior to finally making his admissions." Nevertheless, the Court ruled that the number of times Hernandez may have been warned prior to making statements was completely immaterial. "On the question of how many times a man was advised of his rights, the Court concedes that to be immaterial. . . . If he was advised of his rights ten times or twenty times or a hundred times, it cannot inure to his prejudice. It can only make him more fully aware of what his rights are. . . ."

The trial judge ruled that although he was concerned with the fact...

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