U.S. v. Heldt

• Decision Date: 26 October 1984
• Docket Number: No. 83-1236,83-1236
• Citation: 745 F.2d 1275
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brian Donald HELDT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1275

745 F.2d 1275

UNITED STATES of America, Plaintiff-Appellee, v. Brian Donald HELDT, Defendant-Appellant.

No. 83-1236.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 12, 1984.

Decided Oct. 26, 1984.

Rhonda L. Repp, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

Francisco Leon, Tucson, Ariz., for defendant-appellant.

Appeal from the United States District Court for the District of Arizona.

Before SNEED and FLETCHER, Circuit Judges, and KENYON, ^* District Judge.

FLETCHER, Circuit Judge:

Heldt appeals his convictions for transportation of a stolen vehicle and for transportation of stolen goods, both in interstate commerce in violation of 18 U.S.C. Secs. 2312 & 2314 (1982). We reverse and remand for a new trial because of the admission at trial of statements taken in violation of Heldt's rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

FACTUAL BACKGROUND

Heldt was arrested by the Arizona state police in February 1983 after the police responded to a call to investigate possible fictitious license plates and registration for a truck tractor and trailer. Officer Williams placed Heldt under arrest upon learning that the serial number on the truck tractor matched that of a stolen vehicle. He gave Heldt Miranda warnings and Heldt invoked his right to remain silent.

Williams took Heldt to the county jail where he was booked and charged with two misdemeanors. Heldt pled guilty to one charge, not guilty to the other. Williams was told by the Denver police and the FBI that neither would charge Heldt. On the following day, Williams related this information to Heldt.

After Heldt's arraignment on the misdemeanor charges, FBI Agent Fish visited Heldt at jail. At trial Fish testified that he had told Williams that no federal prosecution was contemplated and that he did not inform Heldt otherwise until his interview with him was concluded. At the beginning of the interview, Fish read Heldt his Miranda rights and gave him a form that explained the rights, and contained a waiver to be signed by the interviewee.

Heldt testified that he told Fish he understood his rights but did not wish to waive them, that he refused to sign the waiver form, and that he told Fish he did not wish to answer questions. Fish testified that he told Heldt that he did not have to sign the waiver form but asked him if he would be willing to answer some questions anyway. Heldt agreed, but asserts that he was "confused and didn't know what was going on." The questioning continued for about three hours. At the conclusion of the interview, Fish told Heldt that federal charges would be brought after all.

On February 28, 1983, a federal complaint was filed against Heldt, charging one count of transportation of a stolen vehicle in interstate commerce in violation of 18 U.S.C. Sec. 2312. Heldt was indicted by a grand jury on March 15, 1983.

On May 24, 1983, the grand jury returned a superseding indictment charging two counts. Count I was identical to the charge in the original indictment; Count II charged interstate transportation of stolen goods in violation of 18 U.S.C. Sec. 2314 based on evidence that the trailer which was attached to the truck was also stolen. During the time between the two indictments, plea negotiations took place but failed.

The trial court denied a pretrial motion to suppress Heldt's admission to Fish, finding that Heldt had waived his rights. The court also denied motions to dismiss the indictments on the grounds of vindictive prosecution and violation of the Speedy Trial Act. At the end of the trial, the judge instructed the jury prior to closing arguments in violation of Fed.R.Crim.P. 30. Heldt asserts that statements made by the prosecution during closing argument gave the jury a misimpression of the standard of proof because of the trial court's refusal to instruct on the matter following argument.

DISCUSSION

I. Heldt's Miranda Rights Were Violated.

Whether we subject the district court's finding that Heldt waived his Miranda rights ¹ to de novo review or employ a more limited standard, reviewing only to see whether the district court was clearly erroneous, the result is the same: ² there was no valid waiver of Miranda rights and the district court's ruling must be reversed.

The government has the burden of proving that the defendant has knowingly and voluntarily waived his Miranda rights. See North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979). This burden is great. Id. We must indulge every reasonable presumption against waiver of fundamental constitutional rights. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); see also Butler, 441 U.S. at 373, 99 S.Ct. at 1757.

Heldt's refusal to sign the printed waiver form casts initial doubt on any claim that he waived his Miranda right. Most persons attach considerable significance to the refusal to sign. By presenting a waiver form for signature, and then proceeding in the face of a refusal to ask if he may ask questions anyway, the police officer at best created an ambiguous situation. Heldt could reasonably have believed that he waived nothing because he had refused to sign. Additionally, there was testimony that Heldt, in addition to refusing to sign, indicated he did not wish to answer questions, ³ but that the officer exhorted him to do so anyway. ⁴

In United States v. Boyce, 594 F.2d 1246, 1250 (9th Cir.1979), we noted that "[u]nder some circumstances, declining to sign a Miranda waiver form will be an assertion of the right to silence ...." Our finding of no waiver, however, was because the subsequent confession occurred during separate questioning several hours later and was preceded by the execution of a waiver form. ⁵ But in United States v. Barnes, 432 F.2d 89 (9th Cir.1970), we found that a defendant's refusal to sign a waiver was an indication that he did not wish to be questioned further. After this refusal, agents had confronted the defendants with the confession of a companion, at which point they confessed. We held that the subsequent confession was inadmissible under Miranda. Accord Christian, 571 F.2d at 69. Similarly, in United States v. Wycoff, 545 F.2d 679, 681 (9th Cir.1976), we assumed, without discussion, that a refusal to sign a waiver form was an assertion of a Miranda right. ⁶ See also United States v. Jones, 696 F.2d 479, 490 n. 13 (7th Cir.1982).

Under Miranda "[i]f the individual indicates in any manner, at any time prior or during questioning that he wishes to remain silent, the interrogation must close." Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627-28. Heldt's refusal to sign was such an indication and Agent Fish's subsequent exhortation to "answer questions anyway" was improper. See Christian, 571 F.2d at 69 and n. 8 (noting similarity to Barnes); United States v. Nielsen, 392 F.2d 849, 852-53 (7th Cir.1965). ⁷ The fact that at the time Heldt was questioned, he believed, because of Williams' statements to him, that he would be charged with nothing beyond the misdemeanors supports our conclusion that the government did not sustain its burden of proof that a waiver occurred.

The First Circuit has suggested that a "prudent" course of action would be for the police officer to inform the accused that his failure to sign the waiver does not mean that his statements cannot be used against him. United States v. Van Dusen, 431 F.2d 1278, 1280 (1st Cir.1970). The court explained:

In the delicate area of advising one of his rights, where testimony is often conflicting, the act of refusing to sign a waiver is concrete and indisputable. When such an act occurs, followed by a willingness to talk, this is a signal of some quirk of reasoning which may simply be a dislike of affixing a signature to any document but which may be more. It may indicate a serious misunderstanding on the part of the accused. In such a succession of events, we wish to make it clear to the courts and prosecutors in this circuit that the burden of persuasion resting on the prosecution measurably increases.

Id.

The First Circuit's suggestion is eminently sound. Investigating officers should clearly inform the accused that his failure to sign the waiver does not prevent statements he makes from being used against him. ⁸

II. Speedy Trial Act.

Heldt asserts that his second indictment violated the Speedy Trial Act, 28 U.S.C. Sec. 3161 (1982), because it was handed down more than thirty days after the complaint. The district court denied Heldt's motion to strike the superseding indictment. We review the district court's interpretation of the Speedy Trial Act de novo. United States v. Mehrmanesh, 689 F.2d 822, 827 (9th Cir.1982).

On May 24, 1983 the grand jury returned a superseding indictment charging two counts. Count I was identical to the charge in the original indictment. Count II charged interstate transportation of stolen goods (the trailer attached to the truck tractor).

Heldt argues violation of section 3161(b), which provides in relevant part:

Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.

18 U.S.C. Sec. 3161(b) (1982).

Heldt argues that the indictment on Count II must be dismissed because it was "in connection with" Count I, the charge upon which he was arrested, and was not returned within 30 days of the complaint. The government argues that the Speedy Trial Act does not apply to superseding indictments and, in any event, it was not "in connection with" the charge upon which he was arrested.

Heldt's argument must fail under our recent interpretation of the Speedy Trial Act in United States v. Pollock, 726 F.2d 1456 (9th Cir.1984). ⁹ In Pollock, the defendant was originally arrested and held on a single count of conspiracy to...