U.S. v. Clements, 82-5238

• Decision Date: 28 July 1983
• Docket Number: No. 82-5238,82-5238
• Citation: 713 F.2d 1030
• Parties: UNITED STATES of America, Appellee, v. Calvin Demonsier CLEMENTS, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1030

713 F.2d 1030

UNITED STATES of America, Appellee, v. Calvin Demonsier CLEMENTS, Appellant.

No. 82-5238.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 7, 1983.

Decided July 28, 1983.

John Preston Bailey, Wheeling, W.Va. (Bailey, Byrum & Vieweg, Wheeling, W.Va., on brief), for appellant.

Henry Brann Altmeyer, third year law student (William A. Kolibash, U.S. Atty., Wheeling, W.Va., on brief), for appellee.

Before ERVIN and CHAPMAN, Circuit Judges, and BRYAN, Senior Circuit Judge.

ERVIN, Circuit Judge:

Calvin Demonsier Clements was convicted by a jury of purchasing a firearm despite a previous state felony conviction and of making false statements on his application for the firearm, in violation of 18 U.S.C. §§ 922(a)(6) and 922(h)(1)(1982). On appeal, Clements contends that his sixth amendment right to the assistance of counsel was violated by the admission of an uncounseled confession he made shortly after his arrest. Clements also assails the validity of the district court's jury instructions and of its denial of his motion for a continuance of his sentencing hearing. We discern no error in the jury instructions or in the denial of the continuance, but we remand the case to enable the district court to make the factual findings necessary to a determination of Clements' sixth amendment claim.

I.

On April 16, 1982, Clements, who previously had been convicted in a Virginia state court of a felony punishable by a sentence exceeding one year's imprisonment, was indicted by a federal grand jury in West Virginia. On April 19, at about 8:00 a.m., as he was returning home from his third-shift job, Clements was arrested in Wheeling, West Virginia, by agents of the Federal Bureau of Alcohol, Tobacco and Firearms (the ATF) and of the state and local police. Immediately upon arrest, Clements was informed that he would be shown the warrant for his arrest when he was brought before a magistrate. While being transported to the local police station, an ATF agent informed Clements of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). ¹ The agent then asked Clements if he understood these rights, and Clements responded in the affirmative. The agent later testified, somewhat hesitantly, that he also told Clements of the pending indictment either at the time of arrest or while in the car. ² Clements flatly denied that he learned of the indictment prior to coming before the magistrate. ³

After arriving at the police station, the ATF agent again read Clements the ATF Miranda formula. Clements then agreed to make an inculpatory, tape-recorded statement. He also consented to a search of his home by law enforcement officers for the .22 caliber rifle named in the indictment. Armed with Clements' consent, and a state search warrant for the rifle, the officers engaged in a lengthy examination of Clements' home, eventually discovering a 9mm handgun as well as the rifle. The government subsequently obtained a superseding indictment charging Clements with illegal receipt of the handgun as well as the rifle.

Clements moved before trial to suppress his confession and the two firearms discovered during the search. The district court ruled the search warrant invalid because issued by a state judge for a search outside the latter's jurisdiction, but found that Clements had consented to a search of his home for the rifle. The court expressly disbelieved the officers' claim that they discovered the handgun before finding the rifle, which was apparently in plain view. The court therefore admitted the rifle and suppressed the handgun. The court also found that although Clements was extremely tired from working a night shift, he was not tricked or overborne by the officers, and that his waiver of counsel and his confession were made intelligently and voluntarily. The district judge stated that whether or not Clements was informed of his indictment prior to making his confession was not "of critical importance," and declined to resolve the discrepancy between Clements' testimony on the issue and that of the agent.

At trial, the handgun count of the indictment was dismissed on Clements' motion. The government's evidence tended to show that Clements had purchased the rifle found during the search and had falsely answered "no" to a question about his past criminal record on a standard form he filled out while making the purchase. The jury found him guilty of both remaining counts, and the sentencing hearing was set for July 28. On July 22, Clements was informed by letter that the presentence report was now available to him. At the hearing Clements moved for a continuance for the purpose of obtaining affidavits from distant witnesses to rebut certain statements in the report. The court denied Clements' motion, struck some items from the report, and sentenced Clements to two consecutive five year terms.

II.

Clements contends that the district court erred in finding that he knowingly and intelligently waived his sixth amendment right to counsel, as opposed to his fifth amendment Miranda right. In Clements' view it is critical that, according to his version of the facts, he was not informed that he was under indictment before being asked to make a statement.

The sixth amendment guarantees the accused in a criminal prosecution the right "to have the assistance of counsel for his defense." In Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), the Supreme Court held that this right attaches upon an individual's indictment by a grand jury and that the right is violated when admissions are elicited from an indicted person in the absence of counsel. It is clear, therefore, that Clements' sixth amendment right had attached already at the time of his arrest.

The right to counsel guaranteed by the sixth amendment is analytically distinct from the right to counsel mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In order to secure the fifth amendment privilege against self-incrimination, the Constitution as construed by the Miranda Court requires certain procedural safeguards, including a right to the assistance of counsel during custodial interrogation. The sixth amendment right to counsel, on the other hand, is an independent constitutional privilege of fundamental significance. See Rhode Island v. Innis, 446 U.S. 291, 300 n. 4, 100 S.Ct. 1682, 1689 n. 4, 64 L.Ed.2d 297 (1980) (policies underlying Miranda right to counsel and sixth amendment right "are quite distinct"); Brewer v. Williams, 430 U.S. 387, 397, 97 S.Ct. 1232, 1238, 51 L.Ed.2d 424 (1977) (Miranda and sixth amendment protect different rights).

Opinions vary about what differences this analytical distinction should make. The better view, we believe, is that courts should, among other things, apply a stricter standard of review to prosecution claims that counsel was waived in sixth amendment cases than is required in Miranda cases. See United States v. Satterfield, 558 F.2d 655, 657 (2d Cir.1976); United States v. Brown, 569 F.2d 236, 240 (5th Cir.1978) (Simpson, Cir. J., dissenting). The basis for this stricter standard has to do with the different policies underlying Miranda and the sixth amendment alluded to by the Supreme Court in Innis. In a pure Miranda situation, where the sixth amendment right has not come into play, the police are involved in their proper business of investigating crime. The person being questioned is not a "defendant" in the criminal process, with all of the extraordinary safeguards the Constitution affords such individuals. Furthermore, cooperation with the police may benefit the individual; he may never become a "defendant" at all, or may be charged with a lesser crime than if he remains silent and unhelpful. On the other hand, once an indictment has been returned, both police and questionee occupy quite different stances. The government has assembled its case against the now-defendant, at least to the satisfaction of a grand jury. Further police questioning is not legitimate investigation, but a species of discovery. ⁴ The defendant, meanwhile, has been vested with the full procedural rights the Constitution affords the target of the government's prosecutorial power. He has much less to gain from talking: it is by definition too late to avert the beginning of a criminal prosecution.

The Miranda right to counsel is required for empirical reasons, because we recognize the psychological realities of a custodial interrogation and the difficulty a confused, legally-unlearned person may experience in preserving the constitutional privilege against self-incrimination while undergoing custodial interrogation. In contrast, the sixth amendment right to counsel is a constitutional constraint on government action forbidding interaction with a person against whom criminal prosecution has been initiated unless the opportunity to obtain counsel has been afforded. ⁵

Waiver of the sixth amendment right to counsel may not be presumed from a silent record, but may be found only when the evidence shows "that an accused was offered counsel but intelligently and understandingly rejected the offer." Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962). Since the sixth amendment forbids the questioning of the defendant in the absence of counsel unless the defendant waives that privilege, "it takes more than a prisoner's answer to a question to waive his right not to have the question asked in the first place." Innis, 446 U.S. at 314 n. 14, 100 S.Ct. at 1696 n. 14 (Stevens, J., dissenting). The court reviewing a claim of waiver should "indulge every reasonable presumption against waiver." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). There need not be, however, an explicit statement of waiver by the defendant. Cf. North Carolina v. Butler, 441 U.S. 369, 373 n. 4, 99 S.Ct. 1755, 1757 n. 4, 60...