742 F.2d 493 (9th Cir. 1984), 83-3120, United States v. Karr

Docket Nº:83-3120.
Citation:742 F.2d 493
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jack W. KARR, Defendant-Appellant.
Case Date:September 05, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 493

742 F.2d 493 (9th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,


Jack W. KARR, Defendant-Appellant.

No. 83-3120.

United States Court of Appeals, Ninth Circuit

September 5, 1984

Argued and Submitted Aug. 10, 1984.

Page 494

Kenneth Parker, Sally R. Gustafson, Asst. U.S. Attys., Seattle, Wash., for plaintiff-appellee.

James Vonasch, Seattle, Wash., for defendant-appellant.

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

Page 495

Before PECK [*], WRIGHT, and FARRIS, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Karr appeals from a conviction of conspiracy to make a firearm, 26 U.S.C. Sec. 5861, and to receive stolen explosives, 18 U.S.C. Sec. 842(h). The major issue: do Miranda warnings sufficiently inform an indicted defendant of the right to counsel under the Sixth Amendment to allow an intelligent waiver of that right? We hold that they do, and affirm.


Karr was the middleman in an attempted contract killing of Richard Connors by Connors' ex-wife, Barbara Neyman, and her lover, Dick Inglis. Neyman and Inglis asked Karr to kill Connors in revenge for assaulting them on several occasions. Karr agreed and accepted $1,000 as a down payment on the contract.

Karr called upon an acquaintance, Park Hung Quan, better known as "Harry." Having considered ways to kill Connors, they chose to use dynamite. Harry had procured the dynamite from Michael Shimmin, who stole it from a logging camp.

Harry wired four sticks of dynamite into a bomb, using electrical tape that Karr bought for that purpose. They drove to Connors' house and Harry attached the bomb to Connors' truck. Harry testified that Karr identified the truck and told him how to wire the bomb to its ignition system. The bomb failed to explode and was discovered under the vehicle.

Karr was indicted and on the following morning, was arrested by agents of the Bureau of Alcohol, Tobacco, and Firearms (BATF). The agents asked him to help to incriminate Inglis. Karr agreed, made incriminating statements to the agents, and an incriminating phone call to Inglis. His statements were used against him at trial.


A. The Claimed Violation of Karr's Sixth Amendment Rights

Karr was arrested following the issuance of a grand jury indictment. The BATF agents gave the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Karr was informed of the indictment and knew he had a right to counsel. He had been arrested recently on other charges and was familiar with the procedures. He seemed eager to waive his right to an attorney and aid the investigation.

Karr does not claim that the statements were involuntary, see Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 203, 50 L.Ed.2d 194 (1976), nor that he did not adequately understand or waive his rights under Miranda. See North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). Instead, he argues that the agents violated his right to an attorney under the Sixth Amendment.

The Sixth Amendment right to counsel is analytically distinct from the Fifth Amendment right created by Miranda. Rhode Island v. Innis, 446 U.S. 291, 300 n. 4, 100 S.Ct. 1682, 1689 n. 4, 64 L.Ed.2d 297 (1980). The right attaches "when formal judicial proceedings are initiated against an individual by way of indictment, information, arraignment, or preliminary hearing." United States v. Gouveia, --- U.S. ----, 104 S.Ct. 2292, 2296, 81 L.Ed.2d 146 (1984). Unlike the Fifth Amendment right, the Sixth Amendment right does not depend on an explicit request by the defendant. Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977).

Karr's rights under the Sixth Amendment attached when he was indicted. The issue is whether he validly waived them.

The standard for waiver of the Fifth and Sixth Amendment rights to counsel is the same: the waiver must be (1) voluntary, and (2) a knowing and intelligent relinquishment of a known right or privilege. Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378 (1981) (Fifth Amendment); Brewer v. Williams,

Page 496

30 U.S. at 404, 97 S.Ct. at 1242 (Sixth Amendment). Courts have split, however, regarding what warnings are required before an indicted defendant can knowingly and intelligently waive the Sixth Amendment right.

The Second Circuit takes the strictest view. It has held that waiver of the right to counsel before trial requires "a clear and explicit explanation of the Sixth Amendment rights defendant is giving up." United States v. Mohabir, 624 F.2d 1140, 1150 (2d Cir.1980). Miranda warnings alone are insufficient. Further, it has held that the rights must be explained by a neutral judicial officer, not by the prosecutor or agent seeking the waiver. Id. at 1153. The officer must show the indictment to the defendant, explain its significance, and highlight the seriousness of the defendant's position. Id. See also United States v. Brown, 699 F.2d 585, 588-89 (2d Cir.1983).

No other circuit has adopted this standard. The Fifth and Sixth Circuits have found informed waivers where the defendant has received Miranda warnings and has indicated a willingness to talk. Jordan v. Watkins, 681 F.2d 1067, 1075 (5th Cir.1982); United States v. Brown, 569 F.2d 236, 238-39 (5th Cir.1978) (en banc); United States v. Woods, 613 F.2d 629, 634 (6th Cir.), cert. denied, 446 U.S. 920, 100 S.Ct. 1856, 64 L.Ed.2d 275 (1980).

The Seventh Circuit has endorsed a case-by-case approach. Robinson v. Percy, 738 F.2d 214 at 222 (7th Cir.1984). It has found waiver where the defendant received Miranda warnings and the surrounding circumstances show that he understood his right to counsel. Id.

Other circuits have adopted intermediate positions. See United States v. Payton, 615 F.2d 922, 924-25 (1st Cir.) (valid waiver where defendant was given Miranda warnings and was informed of indictment), cert. denied, 446 U.S. 969, 100 S.Ct. 2950, 64 L.Ed.2d 830 (1980); United States v. Clements, 713 F.2d 1030, 1036 (4th Cir.1983) (waiver requires knowledge of...

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