U.S. v. White, 79-5364

Citation617 F.2d 1131
Decision Date27 May 1980
Docket NumberNo. 79-5364,79-5364
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jess Harlan WHITE, Defendant-Appellant. Summary Calendar. *
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

John R. Martin, Atlanta, Ga., for defendant-appellant.

C. Michael Abbott, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before RONEY, KRAVITCH and TATE, Circuit Judges.

RONEY, Circuit Judge:

Defendant was convicted of kidnapping and using a firearm to commit a felony, 18 U.S.C.A. §§ 924(c)(1), and 1201. On appeal he contends that the district court erred in instructing the jury and in admitting the following evidence: his confession, evidence obtained in the search of his van, identification evidence resulting from a pretrial lineup, and testimony of the Government's psychiatrist. Finding no error in the district court proceeding, we affirm.

On the night of September 2, 1978, defendant and an accomplice picked up the victim, her husband and her three-year old child, who were hitchhiking on Interstate 285 near Atlanta. After the passengers had fallen asleep, defendant stopped the van and forced the victim's husband and child to get out at gunpoint. The two men then drove the van to a country barn where the victim was sexually assaulted. Eventually the victim was taken to Tennessee where she was let out on a country road. White's accomplice, Robert Webb, was convicted on similar charges in a separate trial and his appeal is presently pending. See United States v. Webb, No. 79-5390, 5th Cir., filed Sept. 12, 1979.

Defendant's Confession

Defendant challenges the admission into evidence of a confession on three theories: first, it violated his right to counsel, second, he was mentally incapable of voluntarily waiving his right to counsel, and third, the confession was made pursuant to plea bargain.

On February 19, 1979, defendant called FBI authorities, stating that he was responsible for the kidnapping and insisting that he be allowed to turn himself in. Shortly thereafter, he was picked up by two FBI agents who took him to the Atlanta FBI office. Advised of his rights, defendant stated that he understood them, then signed the advice of rights form, which contained a waiver of right to counsel.

After signing the form, White asked if any disadvantage would accrue to him if he agreed to be interviewed in the absence of counsel. The agents responded that if he had any question in his mind, he should say no more until he discussed the matter with counsel, because that is the advice he would probably be given by counsel. Defendant then replied, "Well, I guess there is some benefit in cooperating." To this the agents responded that they could make no promises, but that his cooperation would be made known to the prosecuting attorneys and to any sentencing judge. The interview then proceeded, during which the defendant gave a complete confession. This confession was introduced at trial over defendant's objection.

The record unequivocally supports the district court's findings that defendant had intelligently and knowingly waived his right to counsel. Defendant had approached the FBI, insisted upon talking to them, did not appear to be under the influence of drugs or alcohol or to be tired at the time he made his confession, and was not restrained in any way.

Defendant suggests that he was mentally incapable of voluntarily waiving his right to counsel. While he did state during a later interview with another FBI agent that he must be "crazy as nine bedbugs," and while his psychiatrist gave the opinion that defendant had a "borderline personality," that same psychiatrist testified that defendant had an I.Q. of at least 130, and had three years of college education. Another psychiatrist testified defendant was under no mental disability at the time of his confession.

In North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286, 293 (1979), the Supreme Court reaffirmed the principle that the question of waiver of counsel must be determined by the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the defendant. The evidence was sufficient to support the district court's decision on this point.

Relying on his statement about the benefits of cooperating and the FBI agent's statement that he would make that cooperation known to the prosecutor and judge defendant contends that his confession was made pursuant to plea bargaining and is therefore inadmissible under Fed.R.Crim.P. 11(e)(6).

In United States v. Robertson, 582 F.2d 1356 (5th Cir.1978), this Court en banc discussed extensively the difference between plea bargaining contemplated by the rule and the kind of "discussions" which are not rendered inadmissible in evidence under the rule. We held that the totality of the circumstances should be considered in determining whether a discussion should be characterized as a plea negotiation, and that each case must turn on its own facts. On the facts of this case, it is apparent the parties were, at most, involved in "cooperation" negotiations. Confessions made pursuant to such discussions are not inadmissible as plea bargains. United States v. Watson, 591 F.2d 1058 (5th Cir.), cert. denied, 441 U.S. 965, 99 S.Ct. 2414, 60 L.Ed.2d 1070 (1979).

Search of Defendant's Van

During the interview at the FBI office, defendant told the agents that his 1975 Chevrolet van was the vehicle used during the commission of the crime. The agent requested permission to search the vehicle, at the same time informing defendant of his right to refuse to allow the search, and explaining that if he did not consent, the agent could not automatically get a search warrant but would have to show probable cause to a magistrate. Defendant then read and signed a form consenting to the search. The vehicle was not searched until two days later, and it was searched by FBI agents other than those named in the consent form. Certain items of evidence were seized in the search and admitted into evidence, over objection.

Defendant contends that the agent's reference to the possibility of obtaining a search warrant was sufficient to negate voluntariness, citing as support certain language from United States v. Boukater, 409 F.2d 537 (5th Cir.1969). There the Court in dicta indicated that a search consent might not be voluntary if the agent either said or implied that defendant might as well consent because a warrant could be quickly obtained if he refused.

We need not speculate on whether such a situation would turn on the truth of the representation. See United States v. Savage, 459 F.2d 60 (5th Cir.1972), vacated on other grounds and reaffirmed, 483 F.2d 67 (1973), cert. denied, 415 U.S. 949, 94 S.Ct. 1470, 39 L.Ed.2d 564 (1974). The facts of this case do not fit that hypothesis. The FBI agent did not say or imply that defendant may as well consent because a warrant could be easily obtained. Whether defendant's consent to the search of his van was voluntary is a question of fact to be determined from the totality of all the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). The district court was not clearly erroneous in finding defendant had voluntarily consented to a search of the van.

Defendant contends the evidence should have been suppressed because of the two day delay in the search of the van, and because the search was conducted by agents other than those named in the consent form. While it is true that a consent may limit the extent or scope of a warrantless search, Mason v. Pulliam, 557 F.2d 426 (5th Cir.1977), the alleged defects in the search here are not related to the scope of the search. There is no indication that defendant attempted to withdraw his consent prior to the search or that he was in any way prejudiced by the delay or the search by other agents. See id. at 429; United States v. Bradley, 428 F.2d 1013 (5th Cir.1970).

Defendant's motion to suppress the evidence obtained from his motor vehicle was properly denied.

In-Court Identification

Prior to trial, a lineup was held at which defendant's counsel was present. After the victim and her husband had viewed the lineup, each was individually interviewed. Counsel for defendant was excluded from these interviews but was given an opportunity afterwards to question each witness. Defendant's counsel had also requested the initial interview between the witnesses and the Government be tape recorded, but that request was denied. Over defen...

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