U.S. v. Crisco

• Decision Date: 14 February 1984
• Docket Number: No. 83-5016,83-5016
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elmer Wayne CRISCO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1228

725 F.2d 1228

UNITED STATES of America, Plaintiff-Appellee, v. Elmer Wayne CRISCO, Defendant-Appellant.

No. 83-5016.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 6, 1983.

Decided Feb. 14, 1984.

Hector E. Salitrero, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Richard C. McCue, San Diego, Cal., for defendant-appellant.

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

Before SCHROEDER and CANBY, Circuit Judges, and PANNER, ^* District Judge.

PANNER, District Judge:

Elmer Wayne Crisco appeals jury convictions for conspiracy to possess cocaine with intent to distribute and use of a communication facility to facilitate the possession with intent to distribute. The issues presented on appeal are: (1) whether the district court should have suppressed defendant's statement which was made prior to advice of rights as the product of custodial interrogation; (2) whether the district court properly substituted an alternate juror for a regular juror after deliberations had begun; and (3) whether the district court abused its discretion in denying defendant's motion for mistrial. For the reasons set forth below, we affirm defendant's convictions.

FACTS

On July 21, 1982, Claire Walker contacted defendant Elmer Wayne Crisco, who agreed to assist her in obtaining cocaine for undercover Drug Enforcement Administration Agent James H. Clem. Crisco introduced Walker to two prospective suppliers of cocaine.

The next day, Crisco and Walker met with Agent Clem and an informant at a park. From inside his vehicle Agent Clem showed Crisco $40,000 cash as the purported $60,000 cocaine purchase money. Crisco said, "That's all I need to see." Crisco also reportedly stated, "I'll go make the phone call right now."

Crisco returned to his apartment with Walker and placed a telephone call to his suppliers, reporting that he had seen the money. His suppliers declined to become involved, however, and the deal was cancelled.

On July 28, 1982, Agent Clem and DEA Special Agent Robert Williams went to the government recruiting station where Crisco, an Army staff sergeant, was stationed. The agents informed the Army lieutenant on duty that they had a warrant for Crisco's arrest, and asked to speak to him. The lieutenant told the agents that Crisco was not there. The lieutenant left for a moment, and returned with a Marine Corps captain. The captain indicated to the agents that Crisco was in an adjacent room.

The agents, with the Marine captain, went into the room to advise Crisco that he was under arrest and explain the underlying charges. Crisco said that he did not understand the charges and protested that he had not done anything. Agent Clem then stated, "Hey, you met with me--for the purpose of seeing $60,000 that I was going to use to buy a kilo of cocaine." Crisco replied, "Well, I admit that." Agent Williams then advised Crisco of his constitutional rights. After this advice of rights, Crisco indicated that he wished to speak to an attorney.

The district judge denied Crisco's motion to suppress the statement he made prior to advice of rights. Crisco was convicted after a two-day jury trial. Claire Walker pled guilty to a misdemeanor in return for her testimony at Crisco's trial.

Following the jury trial, but before the jury retired to deliberate, the government and the defendant, through counsel and personally, signed a stipulation waiving Fed.R.Crim.P. 24(c), which requires that the alternate juror be discharged when the jury retired to deliberate. The stipulation provided that the court could substitute the alternate juror "in the event that good cause be shown to excuse one or more of the original jury members from continuing deliberations," and if this occurred, the jurors would be instructed to begin their deliberations anew.

After the jury retired to deliberate, the presiding juror forwarded to the court a note stating that prior to trial, two jurors had engaged in casual conversation with the government's witness Claire Walker. The conversation related to Walker's hairstyle. After conducting an evidentiary hearing, the district court substituted the alternate juror for one of the jurors who had conversed with Walker. The district court denied Crisco's motion for a mistrial.

SUPPRESSION OF CRISCO'S STATEMENT

The United States Supreme Court held in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), that the prosecution may not use statements stemming from custodial interrogation of a defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Crisco's statement was made prior to advice of his constitutional rights. The statement must be suppressed, then, if it was the product of custodial interrogation.

The determination whether a defendant was subjected to custodial interrogation is a factual determination that must be made on a case-by-case basis. United States v. Booth, 669 F.2d 1231, 1237-38 (9th Cir.1981); United States v. Rubies, 612 F.2d 397, 404 n. 8 (9th Cir.1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2d 794 (1980). A district court's findings of fact are reviewable pursuant to the clearly erroneous standard. United States v. Booth, 669 F.2d at 1235. The district judge in this case found that Crisco had not been subjected to custodial interrogation, and therefore Miranda warnings were not required. This finding was not clearly erroneous.

The record indicates that upon arrival at the recruiting station the agents were told that Crisco was not there. The Marine captain who subsequently corrected this impression insisted on accompanying the agents when they informed Crisco of the arrest warrant. Confronted with this information, Crisco immediately began protesting that he did not understand what was happening to him. Agent Williams testified that Crisco "never stopped talking from the time we first met him. He kept saying that we had the wrong person, that he hadn't done anything, and meantime, I was still talking to the Marine captain at the same time asking him if we could use another room that wasn't with all the people." The atmosphere was one of general commotion.

In response to Crisco's protests that he did not understand what was happening and that agents had the wrong person, Agent Clem explained, "Hey, you met with me--for the purpose of seeing $60,000 that I was going to use to buy a kilo of cocaine." It was in this context that Crisco made the statement, "Well, I admit that."

The district judge found this situation distinguishable from the custodial interrogation situations addressed in Miranda. He observed that the exchange between Crisco and the agent took place in the presence of the Marine captain, and reasoned, "seems like everybody had to justify their position." The judge concluded that the agents were not required to advise Crisco of his Miranda rights because the agents did not at that time have "complete" control of Crisco.

Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him "in custody." Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977). Custody necessarily implies a degree of control. The district judge's comments suggest that because the agents were not yet in complete control of Crisco, the pressures of the coercive atmosphere identified in Miranda were not present in this case.

This circuit employs an objective reasonable person test in determining whether a person is in custody. United States v. Curtis, 568 F.2d 643, 646 (9th Cir.1978); United States v. Luther, 521 F.2d 408, 410 (9th Cir.1975). Factors to be considered are the language used to summon the defendant, the physical surroundings, the extent to which the defendant is confronted with evidence of his guilt, and the pressure exerted to detain him. Curtis, 568 F.2d at 646.

In Miranda, the Supreme Court stressed the coercive pressures inherent in interrogation of a suspect in isolated, unfamiliar, surroundings. 384 U.S. at 449-50, 86 S.Ct. at 1614-15. The trial judge was entitled to conclude that the circumstances of Crisco's encounter with the agents did not give rise to such pressures; that the conversation took place in surroundings familiar to defendant and in an atmosphere of confusion as to who was in charge. There was no evidence of coercion or intimidation, physical or psychological. On the contrary, the record indicates that Crisco himself did not yet believe he was under the agents' control and was not free to leave. His persistent protestations could have been viewed by the district court as an attempt by Crisco to persuade the agents not to take him into custody. Likewise the agents legitimately may have believed that Crisco did not understand that he was the person sought by the agents. The district court could properly find that at the time Crisco made the statements sought to be suppressed, a reasonable person would have believed that he was not yet in custody. This finding was not clearly erroneous.

Even if Crisco were in custody, the statement should have been suppressed only if he was "interrogated." The district court found that the statement was voluntary, and the record shows that the court could have reasonably concluded that if Crisco was in custody at the time he made the statement to the agent, he was not interrogated and therefore Miranda warnings were not required.

In Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980), the Supreme Court provided guidance regarding when a Miranda warning is required We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to...