769 F.2d 595 (9th Cir. 1985), 84-1249, United States v. Binder

Docket Nº:84-1249.
Citation:769 F.2d 595
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Mark Kevin BINDER, Defendant-Appellant.
Case Date:August 22, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 595

769 F.2d 595 (9th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,


Mark Kevin BINDER, Defendant-Appellant.

No. 84-1249.

United States Court of Appeals, Ninth Circuit

August 22, 1985

Argued and Submitted Feb. 11, 1985.

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[Copyrighted Material Omitted]

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Jon Rick Cooper, 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 WALLACE, HUG, and SKOPIL, Circuit Judges.

SKOPIL, Circuit Judge:

Mark Kevin Binder appeals from his conviction under Arizona statutes on four counts of child molestation and sexual conduct with a minor. Binder claims that the district court erred by: (1) admitting his post-indictment, post-arrest statements in violation of his rights under the fifth and sixth amendments and Federal Rule of Criminal Procedure 5(a); (2) determining that it was bound to apply the state statutory

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minimum sentence; (3) allowing the jury to replay the complaining witnesses' videotaped testimony; and (4) admitting expert psychological and psychiatric testimony that the complaining witnesses could distinguish truth from falsehood. The district court had jurisdiction pursuant to 18 U.S.C. Sec. 1152, which applies federal jurisdiction to crimes committed by non-Indians against Indians on Indian land. We reverse.


Binder was convicted under Ariz.Rev.Stat.Ann. Secs. 13-303.A.2, 13-1405 and 13-1410 (1984) of four counts of child molestation and sexual conduct with a minor. The complaining witnesses were a five and seven year-old sister and brother, Vanessa and Joseph Molina, who lived temporarily with Binder and his mother, a missionary who operated a crisis center. The prosecutor called seven witnesses in addition to the two children. A seventeen year-old girl, Lorraine Wichapa, who had resided as a ward with the Binders when she was sixteen, testified to alleged instances of sexual advances by Binder similar to those charged by the children. The prosecutor introduced this evidence to show that Binder's alleged molestation of the children was not accidental. Additional testimony, including evidence of affectionate letters between Binder and herself, cast doubt on Ms. Wichapa's credibility. Joseph Molina's teacher, who was also a neighbor of the Binders, was called to establish association between Binder and the children. Two psychologists and a psychiatrist testified concerning their examinations of the children after their complaints. A court counselor described her supervision of the children's placement with the Binders. Finally, an FBI agent described the investigation and arrest of Binder. None of the witnesses corroborated the specific allegations of the children regarding Binder's sexual advances.

Prior to trial, Binder moved to suppress post-arrest statements. He also opposed expert psychological and psychiatric trial testimony concerning the children's ability to distinguish truth from falsehood and reality from fantasy. The court denied the motion to suppress and allowed the expert testimony.

The trial court found the children competent to testify. To relieve their apprehensiveness about appearing in court, the trial judge and the parties agreed to substitute the children's videotaped testimony for their live testimony.

During deliberations, the jury requested permission to replay in the jury room the videotaped testimony of the children. After argument in chambers, the court granted the jury's request. The defendant was not present during the in-chambers proceedings or the playing of the tape. During the replay of the videotape, the jury asked to skip preliminary portions of the tape and to selectively replay the tape. The court granted the first request and denied the second. Both communications between the judge and jury occurred without consulting counsel or the defendant.

Several hours after the replay, the jury returned a verdict of guilty on all four counts. Binder was sentenced to four concurrent seven-year sentences, the presumptive minimum under Ariz.Rev.Stat.Ann. Secs. 13-701.B.1, 13-1405.B, and 13-1410 (1984), with parole eligibility to be determined under federal law. This appeal followed.


  1. Admission of Binder's Statements.

    A. Standard of Review

    A determination that a defendant knowingly, intelligently, and voluntarily waived Miranda rights is reversible only if clearly erroneous. United States v. Glover, 596 F.2d 857, 865 (9th Cir.), cert. denied, 444 U.S. 860, 100 S.Ct. 124, 62 L.Ed.2d 81 (1979). The waiver of legal rights following Miranda warnings also constitutes a waiver of those rights under Federal Rule of Criminal Procedure 5. United States v. Indian Boy X, 565 F.2d 585, 591 (9th Cir.1977), cert. denied, 439

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    U.S. 841, 99 S.Ct. 131, 58 L.Ed.2d 139 (1978).

    B. Merits

    For a confession obtained during custodial interrogation to be admissible, any waiver of Miranda rights must be voluntary, knowing, and intelligent. Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966). A valid waiver depends upon the totality of the circumstances including the background, experience, and conduct of defendant. North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 1757-58, 60 L.Ed.2d 286 (1979) (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). A signed waiver form is only one factor to be considered. United States v. Nick, 604 F.2d 1199, 1201 (9th Cir.1979); United States v. Blocker, 354 F.Supp. 1195, 1198 & n. 11 (D.D.C.1973), aff'd, 509 F.2d 538 (D.C.Cir.1975) (mem.). The prosecutor has the burden of showing a valid waiver. There is a presumption against waiver. North Carolina, 441 U.S. at 373, 99 S.Ct. at 1757.

    Although Binder signed a waiver of rights form and stated that he did not want a lawyer to be present so long as he could stop answering questions at any time, he cites several factors that militate against finding waiver: (1) his lack of knowledge of the indictment process; (2) testimony of one of the arresting agents that Binder could not read; (3) coercion by a federal agent who told Binder that if he were willing to discuss the case then the agent would make a good report to the court; (4) the failure of the court to find that the waiver was knowing and intelligent; and (5) the psychologist's testimony that Binder's general knowledge was very low; that he was "borderline defective;" and that since he was operating with a "functional learning disability" he may have trouble assimilating Miranda information.

    The trial court considered all factors militating against a finding of waiver, including the arresting agents' and defendant's testimony that the defendant could not read. Binder was read his rights twice, signed a waiver form, and stated that his mother would retain an attorney. The court concluded that, under the totality of the circumstances, the defendant understood and validly waived his rights. There were sufficient facts demonstrating the elements necessary for a valid waiver. Under our clearly erroneous standard of review, the trial court's ruling will be upheld. See United States v. Moreno-Lopez, 466 F.2d 1205, 1206 (9th Cir.1972) (knowing, intelligent, and voluntary waiver found in case where nineteen-year-old had attended high school in America, spoke English well, and indicated before questioning that she understood her rights). But see United States v. Heldt, 745 F.2d 1275, 1277 (9th Cir.1984) (waiver invalid when, after Miranda warnings, defendant invoked right to silence and refused to sign a waiver form but thereafter made incriminating statements).

    Binder's claim that admission of his statements violated his rights under the sixth amendment and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), is also without merit. The standard for waiver of the rights under the sixth amendment is the same as that for the fifth amendment, that is, voluntary, knowing, and intelligent. United States v. Karr, 742 F.2d 493, 495-96 (9th Cir.1984) (citing Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977)). The district court's finding of a valid waiver of Binder's fifth amendment rights applies equally to uphold a finding of waiver of his sixth amendment rights. See Nick, 604 F.2d at 1201 (valid waiver of right to counsel despite defendant's mild retardation, limited verbal skills, and testimony that he did not know what waiver form meant and that he signed it because he thought it would help him).

    Binder's challenge to the admissibility of his statements under Federal Rule of Criminal Procedure 5 also fails. A waiver of Miranda rights constitutes a waiver of the rights under Rule 5. Indian

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    Boy X, 565 F.2d at 591. Even if there were a delay between arrest and arraignment, statements elicited during a delay are not inadmissible if (1) they are voluntary; (2) their weight is left to the jury; and (3) they occurred within a short time after arrest. 18 U.S.C. Sec. 3501; United States v. Manuel, 706 F.2d 908, 913 & n. 11 (9th Cir.1983). The trial court's findings as to the voluntariness of Binder's statements were persuasive. These elements were met.

  2. Sentencing.

    A. Standard of Review

    A trial court's statutory interpretation is reviewed de novo. United States v. Launder, 743 F.2d 686, 688-89 (9th Cir.1984). Sentencing which occurs within statutory parameters is reviewed for abuse of discretion. United States v. Chiago, 699 F.2d 1012, 1014 (9th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 171, 78 L.Ed.2d 154 (1983).

    B. Merits

    None of Binder's assignments of error concerning his sentence has merit. First, citing United States v. Smith, 574 F.2d 988 (9th Cir.), cert. denied, 439 U.S. 852, 99 S.Ct. 158, 58 L.Ed.2d 156 (1978), Binder contends that,...

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