U.S. v. Hooton
| Decision Date | 30 November 1981 |
| Docket Number | No. 80-1340,80-1340 |
| Citation | 662 F.2d 628 |
| Parties | 9 Fed. R. Evid. Serv. 724 UNITED STATES of America, Plaintiff-Appellee, v. James Lynn HOOTON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Charles Peter Diamond, O'Melveny & Myers, Los Angeles, Cal., for defendant-appellant.
John W. Spiegel, Asst. U. S. Atty., Los Angeles, Cal., argued, for plaintiff-appellee; Brad D. Brian, Asst. U. S. Atty., Los Angeles, Cal., on brief.
Appeal from the United States District Court for the Central District of California.
Before NELSON and NORRIS, Circuit Judges, and THOMPSON, * District Judge.
James Lynn Hooton appeals from his conviction of a single count of engaging in the business of dealing in firearms without a federal license in violation of 18 U.S.C. § 922(a)(1). Hooton was initially tried in January, 1980. The jury was unable to reach a unanimous verdict, and the judge declared a mistrial. Hooton was retried in March, 1980. The jury returned a verdict of guilty, and the court sentenced Hooton to a period of probation.
On appeal Hooton raises several issues. We deal with each seriatim, incorporating the relevant facts into the discussion of each issue.
In June 1977, Hooton purchased a machine gun from an undercover police officer. During negotiations for the sale, the officer had told Hooton the machine gun was stolen. Hooton was arrested. That night, pursuant to a state search warrant authorized only for daytime service, police officers searched Hooton's apartment for stolen handguns and machine guns. The officers seized approximately 25 index cards listing gun transactions. The local authorities forwarded these records to Special Agent Campbell of the Bureau of Alcohol, Tobacco and Firearms (ATF). Agent Campbell began an investigation of Hooton for possible unlicensed dealing in firearms and other federal firearms violations.
Hooton believed that one Joseph Porrazzo had "set him up" in the undercover machine gun transaction. Porrazzo was a licensed firearms dealer from whom Hooton had obtained many of his guns. Porrazzo was also a potential prosecution witness in the state case against Hooton. Hooton went to law enforcement authorities in an attempt to instigate prosecution of Porrazzo for assorted criminal activities.
In March, 1978, Hooton and his attorney, Michael Luros, contacted ATF Agent Riggs. They arranged an interview to present Hooton's allegations against Porrazzo. Hooton contends that he entered into an immunity agreement with Agent Riggs at the outset of the interview. Under the agreement, Hooton would be an "unindicted coconspirator" in any prosecution of Porrazzo. Following the interview, Agent Riggs ran a routine check on Hooton. He discovered that Hooton was under investigation by another ATF office for illegal gun dealing. Agent Riggs then contacted Agent Campbell to discuss the Hooton investigation.
On April 6, 1978, Agent Riggs arranged another interview with Hooton and his attorney. At this interview, Agent Riggs took a handwriting exemplar from Hooton and asked him questions from a list provided Hooton brought a motion to suppress his April 6 statements. He contended that the statements were involuntary because he believed his promise of immunity was still in effect at the time of the April interview. The trial court denied the motion. On appeal, Hooton argues that the court applied the wrong legal standard; he contends that the trial court "erroneously concluded that the Miranda warnings given to Mr. Hooton precluded him from contesting the admissibility of his statements" and that the court therefore "failed to reach the decisive issue (of) whether under the totality of circumstance, Hooton's statement was 'the product of (his) free and rational choice.' " Hooton urges this court to assess the voluntariness of Hooton's statements by making an independent examination of the record.
by Agent Campbell concerning Hooton's gun transactions and use of aliases. At the outset of the April interview, Agent Riggs advised Hooton that he had the right () to remain silent, but that anything he said could be used against him in court. Hooton said he understood those rights. Hooton and his attorney each signed a written waiver which included a declaration that Hooton was answering questions "freely and voluntarily ... without any promise of reward or immunity." This declaration appeared immediately above Hooton's signature.
However, a review of the record demonstrates that the trial court did not let the fact that Hooton received Miranda warnings predetermine its ruling on Hooton's motion to suppress. The trial court denied the motion only after listening to and evaluating the testimony of Hooton, Mr. Luros and Agent Riggs. The court expressly stated that it had considered all the facts and circumstances in reaching its decision on Hooton's motion. Therefore, the trial court's ruling on the voluntariness issue is subject to the "clearly erroneous" standard of review.
Hooton's motion to suppress his statements claimed that Hooton was misled by a promise that he would not be indicted. In denying the motion, the trial court implicitly found Hooton's April 6 statements to be voluntary. The trial court's ruling finds support in the record. The trial court conducted an evidentiary hearing at which both Hooton and his attorney, Mr. Luros, testified. Hooton had orally waived his constitutional rights. He had signed a document which reiterated his waiver of rights and which explicitly stated directly above the signature line that Hooton would be answering questions without any promise of immunity. 1 Hooton had signed the written waiver in the presence of Mr. Luros. Mr. Luros had also signed the waiver form. The denial of Hooton's motion to suppress was not clearly erroneous.
Police seized records of Hooton's gun transactions in June, 1977, while executing a state warrant which the government has conceded was improperly executed at night. These records prompted ATF Agent Campbell to begin investigating Hooton for possible firearms violations. Agent Campbell interviewed a number of witnesses whose names appeared on Hooton's records. He did not show any of the witnesses the documents obtained in the search, and he did not refer to any specific information contained in the documents concerning Hooton's gun transactions. Three of these witnesses Joseph Bogar, John Koppel and James Trapani testified for the government. Hooton moved to suppress the testimony of these witnesses. The trial court admitted their testimony under the authority of United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978). The court found that specific factors emphasized in Ceccolini were present in this case.
In Ceccolini, a police officer's illegal search of an envelope in the defendant's flower shop led to the discovery of the key government witness in the defendant's perjury trial. The Court held that the degree of attenuation between the illegality and the testimony was sufficient to dissipate the connection. The Court balanced the benefits of the exclusionary rule against its costs. In applying the rule to live-witness testimony in light of this balance, the Court noted that the following material factors are to be considered: the length of the "road" between the fourth amendment violation and the testimony of the witness at trial; the degree of free will exercised by the witness; and the fact that exclusion of the witness' testimony "would perpetually disable a witness from testifying about relevant and material facts, regardless of how unrelated such testimony might be to the purpose of the originally illegal search or the evidence discovered thereby." Id. at 277, 98 S.Ct. at 1061. The Court determined that since the cost of excluding live-witness testimony often will be greater than the deterrent effect such exclusion would have, "a closer, more direct link between the illegality and (live-witness) testimony is required" before a court must exclude such evidence. Id. at 278, 98 S.Ct. at 1061.
Hooton argues that Ceccolini is inapplicable to the live-witness testimony in this case. He first contends that the police officers who searched his apartment were seeking the types of documents that ultimately were turned over to the ATF. Therefore, he argues, the suppression of the testimony would have a significant deterrent effect. However, the search warrant authorized the search of the "rooms, cabinets, and storage areas" of Hooton's apartment for "two stolen handguns, and machine guns, ... (and) all documents, papers, and items tending to show the person in cont(rol) of the above locations." The warrant did not authorize the seizure of documents relating to Hooton's ownership of various firearms as Hooton asserts. The district court found that the local authorities did not conduct the search in order to obtain evidence of the federal firearms offense with which Hooton was charged. This finding is not clearly erroneous. Thus, as in Ceccolini, suppression of the testimony in this case would not have had an appreciable deterrent effect.
Hooton also argues that few, if any, attenuating factors are present in this case. He asserts that the path from the illegal search to the development of testimony was straight and uninterrupted: the illegally-seized material prompted the federal investigation and identified potential witnesses. He further argues that the witnesses did not testify voluntarily; their appearance at trial was compelled by subpoena.
In determining whether a significant attenuation between police misconduct and live-witness testimony exists, the court must assess the effect of the search on the exercise of the witness' free will. Where police misconduct did not induce the witness' cooperation, the testimony will not be...
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