614 F.2d 1224 (9th Cir. 1980), 79-1528, United States v. Wilson

Docket Nº:79-1528.
Citation:614 F.2d 1224
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jaye WILSON, Defendant-Appellant.
Case Date:March 06, 1980
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1224

614 F.2d 1224 (9th Cir. 1980)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jaye WILSON, Defendant-Appellant.

No. 79-1528.

United States Court of Appeals, Ninth Circuit

March 6, 1980

Page 1225

Dan Rodger Dubitzky, Seattle, Wash., for defendant-appellant.

Christine McKenna, Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before DUNIWAY and WALLACE, Circuit Judges, and JAMESON, [*] District Judge.

JAMESON, District Judge:

Jaye Wilson was convicted on two counts of acquiring controlled substances by means of forged order forms in violation of 21 U.S.C. § 843(a)(3). 1 Wilson had been subpoenaed to appear before a grand jury. In lieu of appearing before the grand jury she chose to be interviewed by an Assistant United States Attorney and during the interview confessed. She was subsequently indicted and moved to suppress her statements in the interview and to dismiss the indictment. Her motion was denied and the case proceeded to trial before the court without a jury. Upon conviction she was given a suspended sentence and placed on probation for three years. We affirm.

Factual Background

In February, 1979, Dr. Rex B. Palmer, a physician and surgeon who employed Wilson

Page 1226

as a registered nurse, informed Drug Enforcement Administration (DEA) Agent Flett that orders for narcotics bearing Palmer's forged signature had been submitted to a local pharmacy and that a section of his order form book was missing. Flett in turn gave this information to Assistant United States Attorney Francis Diskin.

On March 1, 1979, Diskin had a subpoena prepared requiring Wilson to appear before the grand jury at 11:00 A.M. on March 13, 1979. Diskin did not give the subpoena to the United States Marshal for routine service, but instead gave it to Agent Flett with instructions to delay service until directed by Diskin.

On March 12, 1979, Diskin directed Agent Flett to serve the subpoena the following morning at Dr. Palmer's officer. Flett and a county officer arrived at Palmer's office about 9:00 A.M., March 13. They served Wilson at about 10:30 A.M. when she arrived at work. She became emotionally upset when served with the subpoena. She asked permission to speak to Dr. Palmer.

After speaking with Dr. Palmer, Wilson asked Agent Flett how she could avoid an appearance before the grand jury. The agent replied that he could not make that decision and that she would have to speak to the United States Attorney in charge of the case. At Wilson's request the agents escorted her to the courthouse, a few blocks from Dr. Palmer's office. En route Flett explained that she did not have to speak to the agents and that she had a right to counsel except when appearing before the grand jury. Wilson indicated that she would like to talk to Diskin.

The agents escorted Wilson to Diskin's office. Diskin told her that the subpoena did not require her appearance in his office, but only required her to appear before the grand jury. Wilson received and waived her Miranda rights. During the subsequent hour long interview, she admitted that she had forged Palmer's signature on the narcotics orders, that she was addicted to drugs, and that she had dispensed drugs to her boy friend and friends.

Suppression Hearing

Following her indictment on April 10, 1979, Wilson moved to suppress the statements made in the March 13 interview on the grounds that (1) the service of the subpoena on the same morning that she was to appear...

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